James Gyakye Quayson, the National Democratic Congress (NDC) Member of Parliament (MP) for Assin North whose election has been nullified by the High Court, and subsequently prohibited by the Supreme Court from holding himself as an MP, has faulted the apex court for deciding a matter over which, according to him, it had no jurisdiction.
Mr. Quayson in a review application to the Supreme Court to reverse its recent orders, argues that per several of its own previous decisions in cases similar to his, the Supreme Court declined to adjudicate such election petition cases convinced that it lacked the jurisdiction over them.
Quayson cites a number of cases decided by the Supreme Court to buttress his application, and concludes that the 5-2 majority decision of the court delivered on 13th April, 2022, which contained orders of interim injunction against him, has occasioned a grave miscarriage of justice against the people of Assin North and himself.
He avers that by the application for review, he was seeking to have the Court to reverse what he believes are patent and fundamental errors in the majority ruling.
“That, among these errors, as I am advised and verily believe, this court assumed jurisdiction over a suit involving declaring the results of a Parliamentary election invalid when this court itself has previously decided on many occasions that it does not have jurisdiction over such a suit.”
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The Supreme Court on April 13, 2022, granted an injunction application by Michael Ankomah-Nimfah, a constituent of Assin North, who had originally invoked the original jurisdiction of the Supreme Court to seek interpretation of article 94(2)(a) of the Constitution, to have Mr. Quayson restrained from holding himself as an MP following orders by the High Court in Cape Coast nullifying the election on the basis that Quayson held Canadian citizenship at the time he filed to contest the seat.
The Supreme Court concluded that the High Court in Cape Coast had declared the election of Mr Quayson null and void, and,therefore allowing him to continue as an MP while a substantive constitutional issue before the Court was yet to be determined “will be an indictment of the administration of justice”.
But Quayson in his Statement of Case, sets out a number of grounds for his review application, including 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.
- The majority decision was in patent and fundamental error in failing to appreciate that the suit was in reality an attempt to enforce the decisions of the High Court disguised as an invocation of the original jurisdiction of the Supreme Court.
- The majority decision was in patent and fundamental error in granting an order of interlocutory injunction pending the determination of the suit based on a High Court judgment and an earlier High Court interlocutory decision both of which, on their face, violated article 130(2) of the Constitution and, in the case of the judgment, also violated section 20(d) of the Representation of People’s Law, 1992, PNDC Law 284.
- The majority decision was in patent and fundamental error in granting an order of interlocutory injunction pending the determination of the suit when what the Applicant was seeking by this application was for the execution of decisions in the courts below and this error occasioned a gross miscarriage of justice against him, Quayson; and that
- The majority decision was in patent and fundamental error in granting an order of interlocutory injunction pending the determination of the suit when the Applicant (Ankomah-Nimfah) failed, prima facie, to demonstrate a legal or equitable right that ought to be protected by the court, thereby occasioning a gross miscarriage of justice against him, Quayson.
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Precedents
Quayson cites a number of cases to remind the Supreme Court of its own earlier positions, including the 1998-99 case in which one Michael Yeboah sued JH Mensah, who had been elected as MP for the Sunyani East Constituency in the then Brong-Ahafo Region.
Yeboah had filed a writ invoking the original jurisdiction of the Supreme Court claiming that JH Mensah was not qualified or competent to become a Member of Parliament because of article 94(1)(b) of the 1992 Constitution, which provides that:
“Subject to the provisions of this article, a person shall not be qualified to be a member of parliament unless –
b) 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;”.
JH Mensah raised a preliminary objection to the action on the ground that Michael Yeboah’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.
Quayson also cites the case of Bimpong-Buta vrs General Legal Council in which he says Her Ladyship, Justice Sophia Akuffo provided a summary of how the Supreme Court views its original jurisdiction under both articles 2 and 130(1).
“One of the four principles she states is that:
“(4) Regardless of the manner in which they are clothed, where the real issues arising from a writ brought under article 2 or 130(1) are not, in actuality, of such character as to be determinable exclusively by the Supreme Court, but rather fall within a cause of action cognizable by any other court or tribunal of competent jurisdiction, this court will decline jurisdiction (cf Yiadom 1 v. Amaniampong [1981] GLR 3, SC; Ghana Bar Association v. Attorney-General (Abban Case), Supreme Court, Writ No 8/95, 5 December 1995; reported in [2003-2004] SCGLR 250; Edusei (No. 2) v. Attorney-General supra [[1998-99] SCGLR 753 and Adumoa II v. Twum II [2000] SCGLR 165.” (at pp 1216-1217, emphasis added).”
He said Her Ladyship Sophia Akuffo went on to reach the following conclusion:
“All in all, the reliefs claimed, the pleadings, and the submissions filed in this matter amply demonstrate that the plaintiff’s action is no more than an ordinary civil suit splendidly arrayed in constitutional clothing. In the circumstances, it is my view that our jurisdiction has not been properly invoked. The plaintiff’s reliefs lie elsewhere and we cannot assume jurisdiction to adjudicate upon it under our original jurisdiction. The action must, therefore, be struck out.”
In yet another example he cites, Quayson said in the more recent case of the “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 25th February 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.””
He continues thus;
“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 review application has been fixed for hearing on May 17, 2022.
