The current Ghanaian Supreme Court judges, could have difficulties wiggling themselves out of the James Gyakye Quayson case with a precedent set by the forebears of the apex court in the case of the late veteran politician and elder statesman, Joseph Henry Mensah popularly called JH Mensah, who died four years ago.
The Supreme Court, had used that case to definitively rule on the matter involving John Peter Amewu, saying only by an election petition in the High Court, can the validity of a Parliamentary election be challenged.
Mr Gyakye Quayson, has filed for a review of the decision of the Supreme Court to injunct him from holding himself out as the Member of Parliament (MP) for Assin North and performing duties as an MP, arguing that there has been a grave miscarriage of justice.
The Assin North MP’s lawyers, have cited the case of JH Mensah, a former MP for Sunyani East in the then Brong Ahafo Region case; Yeboah v. JH Mensah of 1998-99, as part of the reasons why the recent injunction by the Supreme Court cannot stand the test of time.
That case, stressed on the Supreme Court’s jurisdiction saying it cannot adjudicate on such matters, and with Article 129(3) of the Constitution stating that previous decisions are binding on the current judges though they can depart from them, if they consider it right to do so, many are wondering what explanation the Supreme Court justices will give as to why they now think their previous decisions were wrong.
The review which was filed on Tuesday, is for the Supreme Court, to overturn its 5-2 majority decision given on April 13, 2022 in the case of Michael Ankomah-Nimfah of Assin Bereku, an NPP member who has the Legal Director of the ruling party, Frank Davies as his lawyer with the Attorney-General and Minister of Justice, Godfred Yeboah Dame, in his corner working against the MP from the opposition National Democratic Congress (NDC).
Mr Gyakye Qyuason’s lawyers, have insisted that “the majority decision was in patent and fundamental error and violated article 129(3) of the Constitution in assuming jurisdiction over the determination of the validity of a Parliamentary election and proceeding to grant the application for interim injunction” citing “.Yeboah v. JH Mensah [1998-99].
In that case “the defendant had been elected as the Member of Parliament for the Sunyani East Constituency in the then Brong-Ahafo Region. Plaintiff filed a writ invoking the original jurisdiction of the Supreme Court in terms of articles 2, 94(1) and 130 of the Constitution, 1992 and rule 45 of the Supreme Court rules, 1996 [C.I. 16], claiming that defendant was not qualified or competent to become a Member of Parliament because of article 94(1)(b) of the Constitution, 1992 which provides that: “Subject to the provisions of this article, a person shall not be qualified to be a member of parliament unless, adding “he is resident in the constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of the ten years immediately preceding the election for which he stands, or he hails from that constituency”.
It said that “the defendant raised a preliminary objection to the action on the ground that plaintiff’s action was instituted in the wrong forum, hence incompetent. The Supreme Court upheld the objection relying on the provisions of section 16 of PNDCL 284 and article 99 of the Constitution and held that the validity of an election to Parliament may be questioned only by a petition presented to the High Court, not by a writ invoking the jurisdiction of the Supreme Court.
The review application noted that “just as happened in Yeboah v. J.H. Mensah, the Supreme Court did not have jurisdiction to entertain an election petition that, in any case, was already initiated in the High Courts. Which were part of his own affidavit show clearly that there was an election petition filed in the High Court, Cape Coast. The applicant’s own affidavit in support of the application for interim injunction, in paragraph 8, quoted in the majority decision, also refers to the 1st defendant pursuing an appeal in the Court of Appeal, Cape Coast. The majority decision, in not declining jurisdiction, was per incuriam Yeboah v. Mensah and other binding decisions that we consider below. What befell the applicant, Michael Yeboah, in Yeboah v. Mensah is precisely what should have been the fate of the Plaintiff herein, Michael Ankomah-Nimfah.
Mr Ankomah-Nimfah, has been in court seeking a “declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana at the time of filing his nomination form between 5th-9th October 2020 to contest the 2020 Parliamentary elections for the Assin North Constituency the 1st Defendant was not qualified as a member of Parliament.
The NPP man also wants “a declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the decision of 2nd Defendant to permit the 1st Defendant to contest Parliamentary Elections in the Assin North Constituency when the 3rd Defendant owed allegiance to a country other than Ghana is inconsistent with and violates Article 94(2)(a) of the Constitution of the Republic of Ghana.
He wants “a declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the election of the 1st Defendant as Member of Parliament for the Assin North Constituency was unconstitutional, adding “that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the swearing in of 1st defendant as member of Parliament for the Assin North Constituency was unconstitutional, null and void and of no legal effect.
“Any further Orders and/or Directions as the Court may deem fit to give effect or enable effect to be given to the Orders of the Court.
“These reliefs essentially sought to invalidate the election of the 1st Defendant as Member of Parliament for the Assin North Constituency. The application for interim injunction sought to restrain the 1st Defendant from holding himself out as Member of Parliament for the Assin North Constituency and performing his duties as such.
But, Mr Gyakye Quayson, in his review application argued that the apex court had assumed jurisdiction over a suit involving declaring the results of a Parliamentary election invalid when the same court had previously decided on many occasions that it does not have jurisdiction over such suits.
A copy of the 42-page review application in the custody of The Herald noted that “there are exceptional circumstances in this case that necessitate a review by the court of its decision of 13th April 2022 which has occasioned a grave miscarriage of justice against the people of Assin North as well as myself”.
In the review filed on his behalf by Justin Pwavra Teriwajah, Mr Gyakye Quayson, asked the court to reverse what he “believes are patent and fundamental errors in the majority ruling”, adding that “it is in the interest of justice that this court reviews its decision of 13th April 2022”.
It has been revealed that at the hearing of the application for interim injunction, the lawyer for the EC, stated that he was opposed to the application and argued that if the Plaintiff/Applicant wished to enforce orders of the Court below, the Supreme Court was not the place to do it, but interestingly, none of the media houses reported his position, however, only in the dissenting opinion of Justice Nene Amegatcher was this point upheld.
Whilst, there was no allusion to what the EC lawyer said in Justice Kulendi’s ruling on behalf of the majority, Justice Amegatcher, said in his dissenting ruling that the Supreme Court is not the place to enforce High Court judgments or orders.
In Republic v. High Court, Ho, Ex parte Attorney-General; (Professor Margaret Kweku and others Interested Parties) Suit No. :JS/21/2021, 5th January 2021, the Supreme Court comprising Appau, Marful-Sau, Torkonoo, Honyenuga, Amadu JJSC held, following Yeboah v. J.H. Mensah, that the High Court, exercising its human rights enforcement jurisdiction under article 33 of the Constitution did not have jurisdiction to entertain reliefs which amounted to declaring a Parliamentary election invalid.
Appau JSC, delivering the unanimous decision of the court (Suit No.:JS/21/2021), said: “The law as constitutionally and statutorily provided for and judicially considered by this apex Court in a plethora of decisions, does not permit the interested parties to include reliefs 1(f), 2 and 3 in the reliefs sought in their apparent human rights action when these reliefs were purporting to challenge the due election of John Peter Amewu as the Member of Parliament Elect for the Hohoe Constituency. In the Yeboah v. J.H. Mensah case supra, a case whose ratio is similar to the instant matter before us, though factually different, the veteran politician Mr. J.H. Mensah of blessed memory, was elected as the Member of Parliament for the Sunyani East Constituency in the then Brong -Ahafo Region in the 1996 Parliamentary elections on the ticket of the New Patriotic Party (NPP).
On February 25, 1997, one Michael Yeboah, caused a writ to be filed in this apex court, invoking the original jurisdiction of the Court in terms of articles 2, 94(1) and 130 of the Constitution, 1992 and rule 45 of the Supreme Court rules, 1996 [C.I. 16]. The plaintiff claimed that Mr. J.H. Mensah was not qualified or competent to become a Member of Parliament in terms of article 94(1)(b) of the Constitution, 1992. The defendant, who denied plaintiff’s contention, raised a preliminary objection to the action on the ground that plaintiff’s action was incompetent, having been instituted in a wrong forum. The Supreme Court upheld the objection on the ground that the Court was not the proper forum for the action. This Court relied on the provisions of section 16 of PNDCL 284 and article 99 of the Constitution, whose combined effect is that the validity of an election to Parliament may be questioned only by a petition presented to the High Court. ”.
As further emphasized by Appau JSC: “It is quite clear that our Constitution, 1992 per article 33(1) clothes only the High Court with authority to hear and determine matters pertaining to the violation or infringement of the fundamental human rights of persons. In the same vein, the same Constitution per article 99, clothes only the High Court with jurisdiction to hear and determine any question as to whether or not a person has been validly elected as a Member of Parliament. …..In the wake of these two provisions, i.e. article 99 of the Constitution, 1992 and section 16 of PNDCL 284 of 1992, a person cannot sidestep this procedure [of an election petition] and commence an action in the High Court invoking any of the High Court’s other jurisdictions to ventilate a grievance that borders on the validity of an election to Parliament. ”
The just quoted passage of the judgment of Appau JSC essentially upheld the submission of the Attorney-General in his Statement of Case to the court: “We submit that, where by the combined effect of Article 99 of the Constitution and section 16 of PNDCL 284, the validity of an election to Parliament may only be questioned by a petition to the High Court brought under sections 17 to 26 of PNDCL 284, a person cannot sidestep this and commence an action in the High Court invoking any of the High Court’s other jurisdictions to ventilate a grievance bordering on the validity of an election to Parliament. In effect, the jurisdiction of the High Court under article 33 cannot be deployed to address grievances in the nature of a parliamentary election petition.”
It had been the submission of the Interested Parties that article 99 of the Constitution did not have the word “only” which is in section 16 of PNDCL 284 and that, in line with article 11(6) of the Constitution, the said section 16 should be read with the necessary modification to give effect to the change effected by the Constitution.
