Supreme Court takes over case

By William Yaw Owusu.

Thursday, 25 May 2006
THE Supreme Court yesterday ordered a Fast Track High Court in Accra to refer to it, a case in which threeNDC officials are seeking to compel the Electoral Commission (EC) to gazette full details of the 2004 Presidential elections.

This means that the High Court will no longer hear the suit brought against the EC by Rojo Mettle Nunoo, Clend Sowu and Kofi Portuphy.

The three NDC members had sought “a declaration that the EC is bound by law to publish in the Gazette, full and complete results of the 2004 Presidential Election.”

They further asked for “a declaration that the failure, refusal or neglect of the defendants to publish the results was contrary to Article 45 of the constitution.”

They sought another order to compel the EC to furnish them forthwith with details of the results from all the 21,005 polling stations.

In a four-to-one majority decision, the highest court of the land ruled that the three main issues raised by the EC when it asked the lower court to stay proceedings bordered on constitutional interpretation.

The issues raised by Mr. Aduama Osei, counsel for the EC were: “Whether or not upon a true interpretation of Article 69 (a), the defendant fully discharged its constitution of the declaration of the Presidents Instrument 2004; whether or not upon the proper interpretation of Article 64(1) any citizen who was aggrieved by or dissatisfied with the declaration in the President-elect Instrument had 21 days within which to present a petition to the Supreme Court to challenge the declaration and whether, upon the true and proper interpretation of the constitution the plaintiffs are stopped from attempting now to challenge the validity of the Presidential election.”

In the ruling, the majority’s view was that the EC had been able to “properly invoke our jurisdiction in this matter” pointing out that the trial judge at the Fast Track High Court had “carved too large a role for himself in deciding to proceed with the matter when an issue of referral had been raised.”

Professor Justice Modibo Tawiah Ocran, a member of the majority in his ruling said, “the trial judge got carried away by the penchant for evidence” and said some of the authorities that he cited to buttress his point were “contradictory.”

Mrs Justice Georgina T. Wood another majority member said “jurisdiction must be exercised judicially and not capriciously,” adding “the heart of this whole controversy lies in a constitutional interpretation and I am convinced that the call for the Supreme Court to intervene has been appropriate.”

Justice Julius Ansah and R. T. Aninakwah, were the two others who made up the majority. Justice Amah promised to file his opinion before the Registrar within seven day.

However, Mr Justice William Atugubah who was against the matter being referred to the Supreme Court, said the Fast Track High Court had authority to proceed with the case.

He said the Constitution was clear and unambiguous on issues such as the one before the court and added that by proper interpretation the Legislative Instrument governing the conduct of election had been clearly spelt out.

On February 14 the High Court, presided over by Mr. Justice Victor Ofoe, ruled that the court had jurisdiction over the matter following a stay of proceedings application filed by the EC to enable them to refer the case before the Supreme Court.