EC, Nduom clash again as Commission heads for Supreme Court
The Electoral Commission (EC) has gone to the Supreme Court to contest an order quashing the disqualification of the presidential candidate of the Progressive People’s Party (PPP), Dr Papa Kwesi Nduom, from contesting the December 7, 2016 election.
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The application is invoking the supervisory jurisdiction of the Supreme Court to quash the October 28, 2016 ruling of Justice Eric Kyei Baffour, which directed the EC to permit Dr Nduom to effect corrections on his nomination forms.
The EC’s application has been mounted on three grounds in the writ invoking the supervisory jurisdiction of the Supreme Court. The Daily Graphic has obtained a copy of the writ which was filed in late afternoon of yesterday.
The grounds set out by the EC are that the High Court committed an error of law apparent on the face of the record.
Other issues being raised by the applicant are that the High Court wrongly assumed jurisdiction of the matter, as well as exceeded its jurisdiction.
Error
Arguing to establish the ground for an error apparent on the face of the record, the EC has stated that the High Court was wrong in holding that the applicant did not set a nomination period for submission of nomination papers by candidates to the EC.
The applicant is arguing that it was beyond doubt that the court conceded in its ruling that beyond the nomination period, no opportunity was afforded any candidate to correct any anomalies in their nomination papers.
“With regard to the nomination period, the evidence before the Court in so far as the parties are concerned is that the nomination period was fixed by applicant to last from the 8th day of September, 2016 to the 30th day of September 2016,” the statement of case accompanying the writ to invoke the supervisory jurisdiction of the Supreme Court has stated.
According to the applicant, Dr Nduom himself deposed to the nomination period at “paragraph 8 of his affidavit in support of his application before the High Court as follows: this year, the EC opened nominations between the period of 8th September and 30th September 2016.”
The evidence before the court, according to the applicant, was that Dr Nduom knew that the EC had fixed the nomination period.
It said Dr Nduom also “knew what this period was and acted in accordance with it. There was, therefore, no dispute whatsoever as to the fact that the applicant had fixed the nomination period. The affidavit evidence and which is the only evidence upon which the Court tries applications of the kind before the Court, emphatically confirmed the nomination period”.
“Interestingly, however, and notwithstanding this overwhelming evidence before the High Court on the nomination period, the High Court proceeded to hold that; "...the nomination period as contemplated by Regulation 9(3) of C.I. 94 was conspicuously not set by the Commission,” the statement of case noted.
According to the applicant, it was clear again from the High Court's ruling that the nomination period played a crucial role in so far as the ruling of the Court was concerned, adding that “the Court was clear that any anomaly that 1st Respondent detected on the interested party's nomination paper was to be corrected within the nomination period”.
The first respondent in the substantive matter was Mrs Charlotte Osei.
Nomination period
The statement of case further argued that Dr Nduom was very much aware of the nomination period fixed by the EC and for that reason the High Court committed an error clearly on the face of the record when it held that the EC did not fix a nomination period.
The EC is arguing that an error of law on the face of the record was one of the grounds upon which the court's supervisory jurisdiction might legitimately be invoked against a decision of the High Court.
“It is submitted further that the High Court's finding that the rules of natural justice was breached was inseparably tied to the erroneous finding that the applicant did not fix a nomination period. The reason is that the High Court made it clear that all rights to effect amendments and alterations to a candidate's nomination paper must be exercised within the nomination period. Upon expiry of the nomination period, therefore, there can be no complaint about a hearing because the exercise of such a right will be outside the nomination period,” the EC has argued.
Jurisdiction
According to the applicant, the High Court wrongly assumed jurisdiction when it entertained the application for Judicial Review because in terms of the rules regulating the nomination of candidates, Dr Nduom ought to have invoked the jurisdiction of the court by petition rather than by judicial review.
It said a reading of the facts upon which Dr Nduom grounded his application to the High Court would confirm that the only reason for which the interested party invoked the High Court's jurisdiction for judicial review was because the EC confirmed Dr Nduom’s nomination paper as invalid, thereby, disabling Dr Nduom from contesting the upcoming presidential election in December, 2016.
The EC is arguing that there was no dispute at all regarding the fact that the EC followed due procedure and further held that 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.
The statement of case is arguing that the High Court prematurely entertained Dr Nduom’s application for Judicial Review.
“Our submission here is that granted then that the High Court is right in holding that the phrase "election petition" used in regulation 9 (5) is restricted only to instances where an election has been held, we further contend that the effect of the authorities in other common law jurisdictions is that suits questioning the returning officer's decision on the validity or otherwise of the returning officer's decision on a candidate's nomination paper are deemed to be election matters which must wait and be prosecuted after the elections,” it added.
Excess Jurisdiction
Touching on the ground of the High Court exercising excess jurisdiction, the EC is arguing that it was held in the case of Republic v High Court, Accra; ex-parte Appiah & 2 Ors that an order of certiorari would be granted where the order to be quashed has been made without jurisdiction either because the court has exceeded its jurisdiction or lacked jurisdiction.
It said it has, however, been held that the court having jurisdiction may lose that jurisdiction if its decision was made in bad faith; or it had failed in the course of the enquiry to comply with the requirement of natural justice; or it had refused to take into account something which it was not required to take into account; or it might have based its decision on a matter it had no right to take into account.
The applicant is arguing that the effect of the High Court's decision to order the EC to permit Dr Nduom to effect amendments and alterations to his nomination paper to correct the duplicated name on his nomination paper was in effect extending the nomination period for Nduom and which nomination period had already closed.
“The High Court's decision effectively extending the period of nomination has very serious consequences for the electoral calendar. It has been held that public policy and national interest is a good reason to refuse an application for judicial review. The High Court, therefore, exceeded its jurisdiction in the manner in which it exercised its judicial review of applicant's actions because it completely sacrificed the national interest in favour of individual interest,” the statement of case has argued.
The EC finally contended that the High Court wrongly exercised its discretion when it failed to take into account Dr Nduom’s conduct to which his attention was drawn to in the EC’s statement of case.
“The interested party had duplicated signatures of a subscriber in order to obtain the requisite number of subscribers. In applications for judicial review, the authorities are to the effect that the conduct of the applicant should be taken into account,” the statement of case, signed by Mr Sory, added.
EC’s Statement
Meanwhile, the EC has issued a statement declaring its disagreement with the High Court’s decision.
It said “in the interest of public policy and the credibility of the electoral process,” it had filed an application at the Supreme Court “to quash the High Court decision and seek clarity on the relevant aspects of the law on candidate nominations.”
According to the EC, it was in the “overall national interest and on the grounds of public policy that the Supreme Court provides clarity on this matter.
“A judgement from the Apex Court would effectively bring finality to the issue once and for all,” the statement said.
It, accordingly pleaded with the court to, in the interest of national peace and cohesion, determine its application expeditiously in accordance with the earlier directive of the Chief Justice “so that the electoral calendar is saved.”
The EC noted that it had reviewed the High Court’s decision and accordingly disagreed with it.
“Having carefully studied the contents of the judgment, we respectfully disagree with the High Court judge’s decision on several essential legal and public policy grounds,” it said.
The EC argued that it was of the firm conviction backed by the law, that candidates seeking the highest office of the land “must take full responsibility for ensuring that their nomination forms meet the standard in form and substance, required by the law.”
It is arguing that it was of the further view that falsified signatures on nomination forms constituted a matter for criminal investigation and were not mere anomalies or clerical errors, which should be pointed out to candidates for corrections to be effected.
“The commission believes that, as in other jurisdictions, presidential candidates must ensure the accuracy of the information on documents, which they present under oath to public institutions.
“Failure to place this burden on the shoulders of the candidates has serious implications for our democratic growth and electoral justice,” the statement added.
Background
The High Court in Accra on October 28, 2016, quashed the EC’s decision, which disqualified Dr Nduom from standing for the December 7, 2016 presidential election.
It, therefore, directed the EC to afford Dr Nduom the opportunity to correct the anomalies on his nomination forms.
According to the court, the EC’s disqualification of Dr Nduom without giving him the chance to correct anomalies on his nomination was a breach of the rules of natural justice.
Dr Nduom filed an application for judicial review four days after his disqualification with certiorari to bring to the court the decision of the respondents dated October 10, 2016 which disqualified the applicant as a presidential candidate for the 2016 general election for the purpose of having same quashed.
The second relief was as an order of prohibition to be directed at the respondents from proceeding with balloting for positions in the presidential election.
Dr Nduom through his lawyer, Mr Ayikoi Otoo, sought a further order directed against Mrs Charlotte Osei in her capacity as Returning Officer for Presidential election to grant him the opportunity to amend and alter the one anomaly found in his nomination papers, as well as accept his nomination papers as amended or altered to enable him to contest as a presidential candidate for the December 7, 2016 election.