The High Court will, on Friday, October 28, 2016, decide whether or not to direct the Electoral Commission (EC) to allow the presidential aspirant of the Progressive People’s Party (PPP), Dr Papa Kwesi Nduom, to contest the December 7, 2016 presidential election.
But Mr Thaddeus Sory, the lawyer for the EC, argued that his client acted within the remit of the law.
Dr Nduom has filed an application for judicial review praying the High Court to quash the EC’s decision to disqualify him from contesting the December 7 presidential election.
He also wants the court to restrain the EC from proceeding with balloting for positions on the ballot paper by presidential candidates.
The applicant wants a further order directed at the Chairperson of the EC, Mrs Charlotte Osei, to grant him (Dr Nduom) “the opportunity to amend and alter the one anomaly” found in his nomination papers, as well as accept his nomination forms as amended and or altered to enable him to contest the December 7, elections.
The EC, on Monday, October 10, 2016, disqualified Dr Nduom and 11 other presidential aspirants from contesting the December 7 presidential election for various reasons, ranging from forgery, impersonation to perjury.
But the applicant has accused the respondent, the EC, of breaching the rules of natural justice and failing to live within the requirement as imposed by law.
He is also bringing the action on the ground that, per the records available, the respondent erred.
But the EC has argued that Dr Nduom is seeking judicial sanction for his inexcusable and reprehensible conduct in submitting his nomination forms on the very last day, hoping that the pressure of work on the day would render it impracticable for the EC to detect that his nomination papers included impersonated subscribers.
According to counsel for the commission, the EC acted strictly in accordance with law and in accordance with its constitutional and statutory mandate.
The two lawyers battled it out at the High Court sitting in Accra yesterday, with intermittent shows of hostility, but the court was able to stamp its authority.
Mr Otoo submitted that by Regulation 9 (2) (a) & (b) of Constitutional Instrument (C.I.) 94, a statutory duty was imposed on the EC and its Chairperson to afford an opportunity to a candidate to make amendments or any alterations necessary where the particulars of the candidate or the persons subscribing to the nomination papers were not as required by law; or the nomination papers were not subscribed to as required by law.
He said if Dr Nduom’s attention had been drawn to the fact that the same person had subscribed to him in two districts, he would have taken steps to get a new person to subscribe for him in the other district and leave at least one subscription standing and go for a subscriber from another district.
“That would be in accord with the law of making amendments or alterations, without destroying the identity of the nomination forms and that amendment or alteration would, in the language of Black’s Law Dictionary, have effected the necessary changes for the better, so that they will then conform with the requirements of the law,” Mr Otoo submitted.
He further submitted that upon a purposive interpretation of the relevant regulations contained in the Public Elections Regulations C.I.94, it was clear that the intention of Parliament was never to disqualify an aspirant who failed to fill his forms in accordance with the law.
According to him, the respondent interpreted the provisions with a purely mechanical, sterile, cold, strict or slavish application at variance with the main purpose of the provision and, therefore, its action had led to an unjust, scandalous, incongruous, absurd, strange, unacceptable, unreasonable, irrational and unfair or extraordinary result, instead of an interpretation which advanced the cause of justice.
Mr Otoo prayed the court not to allow the respondent to benefit from its own wrong and, accordingly, prayed the court to grant his client’s application.
Counsel said when the EC received Dr Nduom’s nomination forms, Mrs Osei told the party’s representative that he would hear from her within seven days, but nothing was heard until October 10, 2016 when the announcement of disqualification came through a press conference.
Mr Otoo said no opportunity whatsoever was given to Dr Nduom before the disqualification, arguing that the act amounted to a breach of natural justice and rendered the entire decision a nullity and liable to be quashed.
On the question of the day or days the EC appointed as the day for nomination, counsel submitted that the EC did not act in accordance with the law setting it up, especially C.I. 94, Regulation 9 (2) (a) & (b) which imposed a statutory duty that on the day or days appointed as the nomination day or days, when the returning officer received a nomination form and finds any anomaly, he must give the candidate the opportunity to effect amendments or alterations.
He said the EC, therefore, did not act reasonably when it appointed only two days — September 29 and 30, 2016 — to receive nomination forms.
Mr Otoo added that the respondent breached the rules of natural justice when it failed to grant Dr Nduom an opportunity to be heard in terms of the law which regulated public elections and, particularly, nominations and disqualification, as well as committed errors of law in failing to comply with the same law and further acted in an unacceptable, unreasonable, irrational, illegal and an unfair manner, including breaching articles 23 and 296 of the 1992 Constitution 1992 when it fixed nomination days without fixing a nomination period.
Mr Sory vehemently opposed Mr Otoo’s submissions on the grounds that the applicant should have filed a petition and not an application for judicial review.
He said Regulation 9 of C.I. 94 clearly indicated that the applicant was to have come by a petition.
He said Mrs Osei had already heard Dr Nduom on his plea to compound a criminal offence and had declined it.
He said should the court quash the decision, all that it was mandated to do was to order a hearing for the applicant, adding that the EC “will still and cannot condone a confessed crime. We humbly submit that the application be dismissed”.
He reiterated that the mandate to determine whether or not the applicant’s nomination papers should or should not be accepted still lay in EC’s province to determine.
Counsel held that the court would be exceeding its jurisdiction if it ordered the EC to accept the applicants’ nomination papers as amended or altered.
Mr Sory said Order 55, Rule 6 (5) of the High Court (Civil Procedure) Rules, 2004, C.I. 47, says that “a respondent who wishes to contest an application for judicial review shall file such number of his statement of case as the registrar may determine”.
The rule further says that the statement of case shall set out his arguments in full, citing all relevant statutes and decided cases intended for the consideration of the court.
“Our submission is that the instant suit ought to have been brought by petition rather than by way of an application for judicial review and the enforcement of fundamental human rights.
“Our submission arises from the facts and the law upon which applicants have mounted their cause of action. A reading of the facts upon which applicants have grounded their application before this court will confirm that the only reason for which the applicant has invoked this court’s jurisdiction for the reliefs endorsed on its motion paper is because the 1st respondent has refused to accept the 2nd applicant’s nomination to contest the upcoming presidential election in December, 2016,” counsel said.
Mr Sory said upon a true and proper interpretation of Regulation 9 (5) of C.I. 94, the validity or otherwise of a candidate’s nomination could only be questioned by way of a petition but not otherwise.
“Our submission, therefore, is that this suit ought to have been commenced by way of a petition. This would have ensured that this court examine only the aspirant’s nomination papers to determine whether the 1st respondent properly exercised its discretion in the matter. We shall now proceed to deal with the other reason for which we contend that the applicants have wrongly invoked the jurisdiction of this court,” he said.
Mr Sory further argued that the applicant failed to comply with the formal requirements for judicial review and for that reason should be dismissed for want of compliance with the rules of the court.
He said by submitting his nomination forms on the very last day of nominations, Dr Nduom took a risk regarding any issues that might arise relating to the compliance or otherwise of his nomination papers with the law.
“The reason for which we make this submission is that having elected to submit his nomination paper on the last day, the applicant knew that being the last day, he would have had no opportunity of amending or altering any information in his nomination papers to ensure that they complied with the requirements of law,” counsel argued.
“This rule clearly incorporates the rule of natural justice audi alteram partem. The rule, however, makes it clear that the enjoyment of the right to natural justice must be enjoyed within a specific period,” he added.
Mr Sory argued that Dr Nduom, by his own conduct, disabled himself from enjoying the statutory right to natural justice within the period prescribed by statute, especially when he was given a hearing.
Error of law
Responding to the allegation of error of law on the face of the record, counsel submitted that reading of the affidavit in support of Dr Nduom’s application would disclose no error, let alone on the face of the record because the facts recounted by the applicant in his affidavit in support of the application confirmed that he was disqualified by the EC in the exercise of its constitutional and statutory mandate.
We will appeal
Mr Otoo told journalists after the hearing that his client would pursue justice to the Supreme Court, in the event that his client’s request was not met by the court.