DENNISLAW [2002]DLSC1158

AMIDU

vs.

ELECTORAL COMMISSION AND ANOTHER

[SUPREME COURT, ACCRA]

[2001-2002] 1 GLR 457

Date: 30 JANUARY 2002

COUNSEL:

MARTIN AMIDU, THE PLAINTIFF, FOR HIMSELF.

ADUAMAH OSEI FOR THE DEFENDANTS.

CORAM:

EDWARD WIREDU CJ, BAMFORD – ADDO, AMPIAH, ADJABENG,

ATUGUBA, AKUFFO AND LAMPTEY JJSC

JUDGEMENT

Akuffo JSC.

On 7 December 2000 the first defendant conducted parliamentary elections

throughout the country. Subsequent to these elections, the results were
formally published in the Ghana Gazette No 1. This publication was dated
Friday 5 January 2001. The plaintiff contends that Gazette No 1 (hereinafter
referred to as the Gazette was actually published on or about 16 January 2001
and thus, the date printed thereon is retrospective and therefore
unconstitutional and unlawful. Consequently, the plaintiff issued the writ
herein for declarations of this court to the effect that:
“(1) On a true and proper interpretation of articles 2(1)(a) and (b),
51, 99 and 107 of the Constitution, 1992; sections 16, 17 and 18 of the
Representation of the People Law, 1992 (PNDCL 284) and paragraph
41(1) and (2) of the Public Elections Regulations, 1996 (CI 15), no
person may procure, facilitate or cause any Gazette on parliamentary
elections results to be published with a retrospective date.

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 (2) The conduct of the defendants in causing to be published and
publishing Gazette No 1 with a retrospective date is in contravention
with and inconsistent with the Constitution, 1992.
(3) Therefore Gazette No 1 is in contravention of and inconsistent
with the Constitution, 1992 and as such null, void and of no effect
whatsoever.”

In support of his claims, the plaintiff asserted that, between 9 and 15 January
2001, he, at various times, made inquiries from the Legislative and Drafting
Division of the Attorney-General’s Office as well as the offices of the second
defendant and was informed that the notice of results and declarations to be
published in the Gazette were being verified and corrected. Consequently, he
raised an objection with the defendants when, on 17 January 2001, he
obtained a copy of the Gazette and noticed that the publication date stated
thereon was 5 January 2001.

The first defendant, in its written submissions, contended that the plaintiff
had failed to demonstrate the manner in which any of the constitutional
articles upon which he relies have been contravened or how the reliefs
claimed properly arise from those articles. The first defendant, therefore,
submitted that the action must be dismissed in limine. Since this submission
raises an issue of law which goes to the root of the plaintiff’s action, I will
deal with it first, for if no provision of the Constitution, 1992 has been
contravened, the result will be that our jurisdiction under article 2 of the
Constitution, 1992 has not been properly invoked.

For ease of reference, I will set out below and briefly discuss the provisions
upon which the plaintiff relies. Article 2(1)(a) and (b) of the Constitution,
1992 read as follows:
“2. (1) A person who alleges that—
(a) an enactment or anything contained in or done, under the
authority of that or any other enactment; or
(b) any act or omission of any person; is inconsistent with, or is in
contravention of a provision of this Constitution, may bring an action
in the Supreme Court for a declaration to that effect.”

Needless to say, in order to invoke this court’s jurisdiction under article 2 of

the Constitution, 1992 the provision alleged to have been contravened must
be a provision of the Constitution, 1992 not the provisions of any other
enactment, whether or not such an enactment was made pursuant to a power
or authority conferred by the Constitution, 1992. This court has on previous
occasions made this position quite clear. Thus in National Democratic
Congress v Electoral Commission [2001-2002] 2 GLR 340 at 345 SC,
Edward Wiredu JSC (as he then was) in his written opinion expressed himself
thus:
“Where an act or omission of any person is challenged under article 2

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 of the Constitution, 1992 such act or omission must be shown to have
taken place, and it must be shown that such act or omission falls foul
of a specific provision of the Constitution, 1992 or at the very least,
the spirit of an actual provision. Thus, in an action such as the
plaintiff’s for the kind of declaration being sought, simply making
reference to an enabling constitutional provision such as article 89(2)
(c) of the Constitution, 1992 cannot suffice. Nor can the mere mention
of article 242 avail the plaintiff since there is no perceptible manner
in which the issuing of the notice by the defendant can amount to a
contravention of the provisions of that article.”

Turning to the case at hand, article 51 of the Constitution, 1992 simply

provides that:
“51. The Electoral Commission shall, by constitutional instrument,
make regulations for the effective performance of its functions under
this Constitution or any other law, and in particular, for the
registration of voters, the conduct of public elections and referenda,
including provision for voting by proxy.”

The purport of this article is quite evident; it enjoins the Electoral

Commission to enact instruments that would assure the effective performance
of his functions. It was pursuant to this power that the Electoral Commission
made CI 15. It is not part of the plaintiff’s case that any portion of this
instrument contravenes the Constitution, 1992 or that, in publishing the
Gazette No 1 either the defendant in some way or the other acted contrary to
this provision or omitted to do something which amounts to a contravention
of the word or spirit of this provision.

Article 99 of the Constitution, 1992 provides that:

“99. (1) The High Court shall have jurisdiction to hear and determine
any question whether—
(a) a person has been validly elected as a member of
Parliament or the seat of a member has become vacant; or
(b) a person has been validly elected as a Speaker of
Parliament or, having been so elected, has vacated the office
of Speaker.
(2) A person aggrieved by the determination of the High Court under
this article may appeal to the Court of Appeal.”

This article appears in chapter 10 (dealing with the legislature) of the

Constitution, 1992 under the sub-heading of “Composition of Parliament”,
and it is evident that all it does is to confer jurisdiction on the High Court to
hear and determine questions relating to membership of Parliament. These
provisions, therefore, have nothing to do with this matter nor do they have
any bearing on the reliefs sought by the plaintiff since it is not the jurisdiction
of the High Court that is at stake here. If we were to grant to the plaintiff any

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 of the reliefs claimed, in what manner would such reliefs amount to an
enforcement of the provisions of this article?

Lastly, article 107 of the Constitution, 1992 states that:

“107. Parliament shall have no power to pass any law—
(a) to alter the decision or judgment of any court as between the
parties subject to that decision or judgment; or
(b) which operates retrospectively to impose any limitations on or to
adversely affect the personal rights and liberties of any person or to
impose a burden, obligation or liability on any person except in the
case of a law enacted under articles 178 to 182 of this Constitution”

The purport of these provisions is to place certain limits on the powers of

Parliament to enact laws. There is nothing herein that involves the passage by
Parliament of any of the kind of laws proscribed by article 107 of the
Constitution, 1992.

The crux of the plaintiff’s case herein is evident from this submission that:
“. . . the twenty-one days mandatorily prescribed by section 18 of
PNDCL 284 makes the publication in the Gazette to have a legislative
effect upon publication. It prescribes the rights and responsibilities of
citizens conferred by articles 51 and 99 of the Constitution, 1992. It is
also a legislative function entrusted to the Electoral Commission to be
carried out by means of the publication in the Gazette. That
legislative function thus entrusted to the Electoral Commission in
accordance with section 18 of PNDCL 284 and article 107 of the
Constitution, 1992 proscribes retrospective legislation.”

Now, sections 16, 17 and 18 of the Representation of the People Law, 1992
(PNDCL 284) state that:
“16. (1) The validity of an election to Parliament may be questioned
only by a petition brought under this Part.
(2) Every election petition shall be presented before the High Court
for hearing.
17. An election petition may be presented by one or more of the
following persons—
(a) a person who lawfully voted or had a right to vote at the election
to which the petition relates,
(b) a person claiming to have had a right to be elected at the election;
(c) a person alleging himself to have been a candidate at the election;
(d) a person claiming to have had a right to be nominated as a
candidate at the election.
18. (1) An election petition shall be presented within twenty-one days
after the date of the publication in the Gazette of the result of the

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 election to which it relates, except that a petition questioning an
election on an allegation of corrupt practice and specifically alleging
a payment of money or other award to have been made by the person
whose election is questioned or to have been made on his behalf to his
knowledge, may be presented within twenty-one days after the date of
the alleged payment.
(2) The presentation of an election petition under sub-section (1) shall
not be valid unless within the time specified in sub-section (1), the
petitioner gives ¢20,000 as security for costs.
(3) The time limit provided by this section for the presentation of an
election petition shall not be extended.”

In the context of the matter before us, the only perceptible relevance of these
provisions, particularly section 18(1) of PNDCL 284 is that they spell out the
venue and procedure for challenging the validity of parliamentary elections
and stipulate the time limits within which such challenges may be mounted.

The terms of paragraph 41(1) and (2) of CI 15 are that:

“41. (1) Subject to regulation 40 of these Regulations, immediately
after the results of the poll for all the stations in his constituency have
been given to him, the returning officer shall, in the presence of the
candidates or their representatives or not more than two counting
agents appointed by each candidate—
(a) assemble the results from the polling stations without recounting
the ballots in the ballot boxes, except where there is a challenge by a
candidate or counting agent in respect of a specific ballot box;
(b) give public notice of the total number of votes cast for each
candidate;
(c) publicly declare to be elected in a parliamentary election the
candidate to whom the most votes have been given;
(d) endorse on the writ the name of the person elected; and
(e) forward to the Commission the endorsed writ and a note of the
total number of votes cast for each candidate.
(2) On receipt of a writ endorsed in accordance with this regulation,
the Commission shall—
(a) in a parliamentary election publish in the Gazette a notice stating
the name of the person elected and the total number of votes cast for
each candidate; and
(b) inform the Clerk to Parliament soon after that of the name of the
candidate elected.”

Thus, it is clear from these provisions, particularly paragraph 41(2)(a) of CI

15 that the act of publishing the Gazette is an operational or functional one
whose sole purpose was to give formal notice of the existence of a certain

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 outcome from the parliamentary elections. Indeed, the function of any
published Gazette is merely to notify the public of the facts contained therein
and intended to be notified thereby. As was correctly noted by the plaintiff in
his written submission, this position is clearly stated in section 154 of the
Evidence Decree, 1975 (NRCD 323) as follows:
“154. All proclamations, Acts of State, whether legislative or
executive, nominations, appointments, and other official
communications appearing in the Ghana Gazette are prima facie
evidence of any fact of a public nature which they are intended to
notify.”

(The emphasis is mine.) If any person desires to challenge the veracity or

existence of any fact thus notified in a published Gazette, I believe that he
may legally do so. However, in such a case, the proper course cannot be by
way of an action under article 2 of the Constitution, 1992.

It is clear from the plaintiff’s above quoted submission that what he really
seeks to safeguard or enforce is the full availability of the twenty-one days
stipulated in section 18 of PNDCL 284, which he claims has been shortened
by the alleged back-dating of the Gazette. He seeks to do this by challenging
the veracity of the publication date stated in the Gazette. The plaintiff must be
commended for his vigilance and commitment to the protection of the right of
the citizen to challenge election results. However, the publication of a Gazette
is not and cannot be a legislative act of Parliament, nor is it a constitutional
act grounded in a provision of the Constitution, 1992. Thus, assuming, for the
sake of argument, that there has been any breach on the part of the defendants
in assigning 5 January 2001 as the date of publication of the Gazette, rather
than 16 January 2001 as alleged by the plaintiff to be the correct date, then, at
worst, it is a statutory (or an operational) breach under CI 15, rather than a
constitutional one under any of the articles upon which he relies
Consequently, the plaintiff’s cause of action, if any, arises from provisions
outside the Constitution, 1992 and his reliefs lay elsewhere other than by way
of an invocation of our original jurisdiction under article 2 of the
Constitution, 1992. We, therefore, cannot entertain the writ herein and it must
be struck out.

Atuguba JSC. The facts of this case have been amply set out in the judgment
that has preceded mine. I will therefore only repeat them where necessary.

The thrust of the plaintiff’s case is that the Gazette publication of the electoral
results is legislative in character since the combined effect of, inter alia,
section 18 of the Representation of the People Law, 1992 (PNDCL 284) and
regulation 41(1) and (2) of the Public Elections Regulations, 1996 (CI 15), is
that a person’s cause of action, in a parliamentary election matter, accrues
only “within twenty-one days after the date of the publication in the Gazette
of the result of the election to which it relates”, except in cases of corruption.
(The emphasis is mine.) The plaintiff obviously ascribes a legislative effect to
the Gazette publication in order to provide him a plank upon which to call

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 upon it the constitutional fire against retrospectivity on the part of Parliament
under article 107 of the Constitution, 1992 which provides:
“107. Parliament shall have no power to pass any law—
(a) to alter the decision or judgment of any court as between the
parties subject to that decision or judgment; or
(b) which operates retrospectively to impose any limitations on or to
adversely affect the personal rights and liberties of any person or to
impose a burden, obligation or liability on any person except in the
case of a law enacted under articles 178 to 182 of this Constitution.”

(The emphasis is mine.) The implication of the plaintiff’s contention, as I see

it, is that if Parliament itself is forbidden to pass retroactive legislation, then a
fortiori, the Electoral Commission cannot make a legislative act which has
retroactive effect on a person’s rights, obligations, etc.

I am prepared to hold that if indeed an act is of a legislative character a

person cannot evade such character by resorting to a means of doing that act
otherwise than by prescribed legislative procedures: see Apaloo v Electoral
Commission [2001-2002] 2 GLR 372, SC. Since the Electoral Commission
under article 51 of the Constitution, 1992 is empowered to make regulations
for the conduct of elections, I think the pertinent test is whether a measure
taken by it passes for a regulation. If it does, then it is legislative in character
(and can only be done by the prescribed legislative procedure, namely by
constitutional instrument). In this case the result of the election is merely to
be published in the Gazette; it requires nothing to be done by anybody. The
fact of the result of the election is conveyed by the Gazette publication and
this being a purely factual matter, its legal status is as laid down in section
154 of the Evidence Decree, 1975 (NRCD 323) as follows:
“154. All proclamations, Acts of State, whether legislative or
executive, nominations, appointments, and other official
communications appearing in the Ghana Gazette are prima facie
evidence of any fact of a public nature which they are intended to
notify.”

(The emphasis is mine.) The fact that the publication is made use of by
section 18 of PNDCL 284 does not mean that it is per se legislative in
character.

However, a Gazette publication need not be legislative in character before it

can be said to contravene or be inconsistent with the Constitution, 1992 if it
really happens to do or be so. In this case, the publication of the Gazette
notice even though “of . . . fact of a public nature”, which it is “intended to
notify”, also happens to affect an electoral cause of action, since it vests
(under section 18 of PNDCL 284) as already shown supra, “within twenty
one days after the date of the publication in the Gazette of the result of the
election to which it relates.” It is refreshing to set out the provisions of article
2(1) of the Constitution, 1992 which are notoriously in pari materia with

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 those of the 1969 and 1979 Constitutions of Ghana. They are as follows:
“2. (1) A person who alleges that—
(a) an enactment or anything contained in or done, under the
authority of that or any other enactment; or
(b) any act or omission of any person; is inconsistent with, or is in
contravention of a provision of this Constitution, may bring an action
in the Supreme Court for a declaration to that effect.”

(The emphasis is mine.)

I pause to hold that the import of these provisions is that all acts, omissions
and laws must conform and be consistent with both the letter and the spirit of
the Constitution, 1992. This has been most succinctly put by my
distinguished brother Edward Wiredu JSC (as he then was) in National
Democratic Congress v Electoral Commission [2001-2002] 2 GLR 340, SC at
345 thus:
“Where an act or omission of any person is challenged under article 2
of the Constitution, 1992, such act or omission must be shown to have
taken place, and it must be shown that such act or omission falls foul
of a specific provision of the Constitution, 1992 or at the very least the
spirit of an actual provision.”

In that same case, I also stressed the same point as follows:

“. . . as explained by Adade JSC in New Patriotic Party v Attorney-
General [1993-94] 2 GLR 35 at 57-58. ‘To succeed, the plaintiff must
be able to bring itself squarely within article 2 of the Constitution,
1992. It has been said that familiarity breeds contempt. Article 2 of
the Constitution, 1992 has, since its enactment, been repeated so
often, both in the courts and elsewhere, that we run the risk of
glossing over, or completely ignoring or missing its true import. It
must be emphasised that under the article, the conduct complained of
need not contravene anything in the Constitution, 1992; it is enough if
that conduct is inconsistent with any provision of the Constitution,
1992. An act contravenes an enactment if it breaches that enactment;
if it is contrary to that enactment. But an act need not be contrary to
an enactment, to be inconsistent with it. In other words, the act may
be inconsistent with the enactment, even though it does not
necessarily breach it. May be the dividing line is thin; but there surely
is a dividing line.’”

(The emphasis is mine.)

If the Gazette notice has been published with a retrospective date, as the
plaintiff contends, it will curtail the extent of the right under section 18 of
PNDCL 284 aforesaid, but even if it did not, the retrospectivity, if proved,
would, in my view, be inconsistent with the Constitution, 1992. Provided a
legal controversy is engendered by it, this court can be approached. This

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 fundamental law itself operates only prospectively. The Constitutions, 1969
and 1979 which are in pari materia with the Constitution, 1992 and contained
provisions similar to articles 2(1)(a) and (b) and 107 of the Constitution, 1992
have been held to operate only prospectively (except for clear provisions or
necessary implication to the contrary). In Gbedemah v Awoonor-Williams
(1970) 2 G&G 442 at 444, Apaloo JA (as he then was), writing for the
majority, said: “As we read the Constitution, it has no retrospective effect . .
.” (The emphasis is mine.) This was stressed in Benneh v The Republic
[1974] 2 GLR 47 at 85, CA (full bench) when Apaloo JA (as he then was)
delivering the majority judgment said: “The Constitution which became
operative on 22 August, 1969 was prospective and did not seek to invalidate
acts which were done before it came into being

. . .” (The emphasis is mine.) In Fattal v Minister for Internal Affairs [1981]

GLR 104, SC Archer JSC (as he then was) forcefully stated at 117:
“Article 89(1)(a) applies to legislative judgments passed after the
commencement of the Constitution, 1979, and not before. Indeed,
article 89(1)(b) of the Constitution, 1979, prevents Parliament from
passing any law which is to operate retrospectively either in intent or
content. The Constitution will therefore be expected to practice what it
has ordained. It cannot operate retrospectively or retroactively
otherwise the Constitution will be guilty of what in Scottish legal
parlance is referred to as reprobating and approbating. The
Constitution came into force on 24 September 1979 and not a day
earlier.”

(The emphasis is mine.) Following all this, in Ellis v Attorney-General [2000]

SCGLR 24 at 44, I said, as my predecessors had said supra when the previous
operation of legislation before the coming into force of the Constitution, 1992
was challenged: “. . . I hold that the plaintiffs’ action is not within the purview
of article 2(1), which is prospective and not retrospective.” (The emphasis is
mine.) The preliminary objection to this court’s jurisdiction in that case was
unanimously upheld and the plaintiffs’ action was dismissed.

As far as article 51 of the Constitution, 1992 is concerned, it provides:

“51. The Electoral Commission shall, by constitutional instrument,
make regulations for the effective performance of its functions under
this Constitution or any other law, and in particular, for the
registration of voters, the conduct of public elections and referenda,
including provision for voting by proxy.”

(The emphasis is mine.) The import of the plaintiff’s reliance on this article,
as I see it is that since the Gazette notice was published under the authority of
regulation 41(1) and (2) of the Public Elections Regulations, 1996 (CI 15) (on
which the plaintiff also relies) which springs from the exercise of the
Electoral Commission’s power under article 51 of the Constitution, 1992
then, that act of publication must conform with the provisions of article 51.
Article 51 of the Constitution, 1992 on its face would not seem to be irritated

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 by that act of publication. But if, as I have already set out at length supra, the
Constitution, 1992 has been held under article 2(1)(a) and (b) of the
Constitution, 1992 to be prospective and not retrospective in its operation,
then article 51 of the Constitution, 1992 which is part and parcel of the
Constitution, 1992 read together with articles 2(1)(a) and (b) and 107 of the
Constitution, 1992 (the latter proscribes retrospective legislation), must also
be prospective and not retrospective and therefore the powers given by it to
the Electoral Commission must also be prospective and not retrospective.
That being so, a purported retrospective publication of a Gazette notice under
the provisions of CI 15 will fly in the face of article 51 of the Constitution,
1992 against the background of the general prospectivity of the Constitution,
1992 as declared under article 2(1)(a) and (b) of the Constitution, 1992
aforesaid. Such a conduct can be challenged under article 2(1)(a) and (b) of
the Constitution, 1992 before this court as an act “. . . done, under the
authority of that. . . enactment; or any act or omission. . . inconsistent with,
or. . . in contravention of a provision of this Constitution.”

I must at this stage point out that the full measure of the provisions of the
Constitution, 1992 can only be captured by reading them in the light of the
decisions of this court. That is the essence of the interpretative and
enforcement jurisdiction of this court. Thus, in Chokolingo v Attorney
General of Trinidad and Tobago [1981] 1 All ER 244 at 247-248, PC Lord
Diplock delivering the judgment of the Privy Council said that:
“Under a constitution on the Westminster model . . . which is based on
the separation of powers, while it is an exercise of the legislative
power of the state to make the written law, it is an exercise of the
judicial power of the state, and consequently a function of the
judiciary alone, to interpret the written law when made and to declare
the law where it still remains unwritten, . . . So when in Chapter 1 the
Constitution of Trinidad and Tobago speaks of ‘law’ it is speaking of
the law of Trinidad and Tobago as interpreted or declared by the
judges in the exercise of the judicial power of the state.”

(The emphasis is mine.) Thus, for example though on its face article 2(1) of
the Constitution, 1992 does not mention threatened acts, in Kwakye v
Attorney-General [1981] GLR 9 at 13, SC, Apaloo CJ delivering the ruling of
the court said:
“Article 2(1)(b) [of the Constitution, 1979] enacts that:
2. (1) A person who alleges—
(b) that any act or omission of any person, is inconsistent with,
or is in contravention of, a provision of this Constitution, may
at any time bring an action in the Supreme Court for a
declaration to that effect. . . .
if we construe article 2(1)(b) alright, he is entitled to invoke the
jurisdiction of this court as soon as the act complained of was
committed or even threatened.”

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 (The emphasis is mine.) Following known rules of construction I adopted this
construction in respect of article 2(1) of the Constitution, 1992 in Sam (No 2)
v Attorney-General [2000] SCGLR 305.

Applying this principle of the constitutional function of the judiciary, though

the Constitution, 1992 does not state anywhere generally that it is
prospective, it has that character by reason of the judicial interpretation put on
article 2(1) of the Constitution, 1992 and therefore a party may base an
argument on its letter as interpreted by the courts. Alternatively such
argument can be based on the spirit of the Constitution, 1992 as disclosed by
judicial interpretation, aforesaid.

The plaintiff also refers to article 99(1) of the Constitution, 1992. It, as far as
relevant, provides:
“99. (1) The High Court shall have jurisdiction to hear and determine
any question whether—
(a) a person has been validly elected as a member of Parliament or
the seat of a member has become vacant.”

If, as mutatis mutandis, from Kwakye v Attorney-General (supra) a plaintiff

is entitled to invoke the jurisdiction of the court as soon as the relevant act is
committed or even threatened, then it follows that any unwarranted
interference with such right would fly, in this case, in the face of article 99 of
the Constitution, 1992. Thus in Sam (No 2) v Attorney-General (supra) the
unwarranted interference with the jurisdiction of the courts took the form of
an indemnity from suit under section 15 of the Divestiture of State Interests
(Implementation) Law, 1993 (PNDCL 326) which was inconsistent with or in
contravention of articles 140(1) and 293(2)(3) of the Constitution, 1992.
Article 140(1), for example provides:
“140. (1) The High Court shall, subject to the provisions of this
Constitution, have jurisdiction in all matters and in particular, in civil
and criminal matters and such original, appellate and other
jurisdiction as may be conferred on it by this Constitution or any
other law.”

(The emphasis is mine.)

In the instant case, the plaintiff contends that a right of action accrues within
21 days of publication of the result of a parliamentary election in the Gazette.
The plaintiff contends, as I have already said, that by publishing that result in
the Gazette with a retrospective date the right of access to the court under
article 99 of the Constitution, 1992 has been impeded or truncated. If the
interference with this right does not appear to be so patent upon the actual
letter of article 99 of the Constitution, 1992, the inconsistency with its spirit
cannot be denied. Thus, in Kwakye v Attorney-General (supra), the Supreme
Court struck down as unconstitutional section 1 of the State Proceedings Act
(Amendment) Decree, 1969 (NLCD 352), which provided as follows:

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 “(2) No action shall be commenced against the Republic until the
expiration of one month after written notice of intention to commence
the action has been served by the claimant or by his attorney or
agent:—
(i) on the Attorney-General or an officer of the Attorney-
General’s Department not below the rank of Senior State
Attorney. . .”

(The emphasis is mine.) At 13 Apaloo CJ delivering the judgment of the

court explained that the said provision of NLCD 352 impeded the right of
access to the Supreme Court under article 2 of the Constitution, 1979.

By way of comment, I would not think that the deletion of the words “at any
time” which appeared in article 2(1)(b) of the Constitution, 1979 but which
do not appear in article 2(1)(b) of the Constitution, 1992 makes any
difference. It is not every alteration of words used in previous legislation, in
pari materia, that evinces a change of intent with respect to their altered
repetition in a subsequent statute. In New Patriotic Party v Attorney-General
[1993-94] 2 GLR 35, SC the continued celebration from public funds

of the 31 December Revolution was held to be unconstitutional not because it

contravened any letter of the Constitution, 1992 but because it did not
harmonise with the spirit of the provisions of the Constitution, 1992 which
proscribe coups d’etat and other treasonable acts. That public holiday was
struck down because it was thus inconsistent with those provisions.

I believe I have the support of these authorities for holding in this case that
the truncation of the period within which a plaintiff can invoke the
jurisdiction of the High Court under article 99 of the Constitution, 1992 if
proved, would at least be inconsistent with that article since it unduly
impedes its invocation. That act would provoke the wrath of the spirit, if not
the letter, of that article. In Yager v Musa [1961] 2 All ER 561, CA a
persistent contemnor applied for his release from prison and the judge made
an order that “the application be adjourned generally with liberty to restore
and be not restored to the list before the expiration of three months from the
date hereof.” On an appeal by the defendant to the Court of Appeal, it was
held, as stated in the headnote, that:
“(i) the order of the judge would be varied so as to specify a date on
which the defendant would be released, since, unless an applicant for
release from prison had been guilty of an abuse of the process of the
court, the court should not make an order that might prevent him from
having access to the court.”

(The emphasis is mine.) Conversely, I think that if the alleged retrospective

publication of the Gazette notice in this case is proved, it would constitute a
prevention of access to the courts by reason of its truncation of the period of
21 days within which a person may institute his action before the court to
impugn a parliamentary election.

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 Indeed, in Mekkaoui v Minister of Internal Affairs [19811 GLR 664, SC it
was established by evidence that Gazette No 45 in which the Ghana
Nationality (Amendment) Decree, 1979 (AFRCD 42) was published was
printed in October even though the Gazette was retroactively dated 22
September 1979. The Armed Forces Revolutionary council (Establishment)
Proclamation, 1979 had provided under section 3(7) that where the date of
commencement had been stated in the decree then it should take effect from
that date; but where no date had been stated then it should take effect from
the publication of the Gazette. It was held, inter alia, as per the headnote in
holding (1) at 666 that:
“. . . The evidence showed, unmistakably that . . . the date of
notification of A.F.R.C.D. 42 in the gazette was stated as 22
September 1979 whereas in fact A.F.R.C.D. 42 was published in
Gazette No 45 in October 1979. Consequently, what was published as
A.F.R.C.D. 42 in October 1979 was null and void and of no legal
consequence.”

(The emphasis is mine.) Again in In re Yendi Skin Affairs; Andani v

Abudulai [1981] GLR 283, CA a similar retroactive publication of Gazette
No 44 notifying AFRCD 32 was condemned and nullified. In my view, if the
plaintiff had led evidence as was done in these two cases to establish the
retrospectivity of the publication of Gazette No 1 my decision would have
been different. The legal nature of the consequences of its retrospectivity
would, of course, have had to be considered also.

The plaintiff has however led no evidence to establish the retrospectivity of

the publication of Gazette No 1 dated 5 January 2001 even though he claims
in his written submissions dated 19 June 2001 as follows:
“In this case I have challenged the retrospective dating of the Ghana
Gazette No 1 and adduced direct as well as circumstantial evidence
that convincingly establishes that Ghana Gazette No 1 was printed
and published on a date after 5 January 2001, that is to say, on or
about 16 January 2001 and retrospectively dated 5 January 2001. I
am therefore humbly inviting this court to hold that from the facts and
the defendants’ own admissions Ghana Gazette No 1 was dated
retrospectively to 5 January 2001.”

(The emphasis is mine.) No evidence was heard by this court in this case. It is
clear therefore that the proof claimed by the plaintiff can only have reference
to such allegations of his in his statement of case dated 30 January 2001
which he contends were admitted by the defendants. I will avoid the tedium
of setting out all these paragraphs as I was at first minded to do; after all the
docket of the case is there for verification. Paragraphs (5) and (6) of the
plaintiff’s claim alleged and were admitted by the first defendant (but denied
by the second defendant) that, in the case of Republic v High Court,
Bolgatanga, Ex parte Hawa Yakubu [2001-2002] 1 GLR 311, SC, this court
quashed the proceedings therein, inter alia, because at the time of then
institution the Gazette notice (called into question by the present action), had

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 not been published. I should have thought that those proceedings were res
inter alios acta. In any case, the furthest that this court went in that case was
to hold at 317 that: “The Gazette publication of the results of the
parliamentary election of the Bawku Central Constituency was made on 5
January 2001.” The court also found at 317 that:
“. . . the undisputed fact is that the petition was filed before 5 January
2001. Consequently, the contention that the petition is premature is
valid.
There must certainly be sound policy considerations underlying the
need to mount election petitions only after the Gazette publication of
the results of the election in cases where no corrupt practices are
alleged.”

(The emphasis is mine.)

The first defendant’s admission in respect of the plaintiff’s said allegations

concerning the Hawa Yakubu case (supra) is as follows:
“(4) The first defendant admits paragraphs (5) and (6) of the
plaintiff’s statement of case, and avers that the notice published in the
Gazette Nos 1 and 2 of Friday, 5 and 12 January 2001, under the
signature of the first defendant, was dated 30 December 2000.”

(The emphasis is mine.) Thus the first defendant is still alleging that the
Gazette No 1 impugned in this case was published on 5 January 2001; as this
court also found in the Hawa Yakubu case (supra). There is no assistance
from these facts to prove that Gazette No 1, aforesaid, was published on any
other date posterior to 5 January 2001.

The plaintiff in paragraph (10) of his statement of case alleges, with

admission from both defendants, that his inquiries made between 9 and 12
January 2001 revealed:
“that the proofs of the Gazette had been. . . returned to the first
defendant for correction, verification of figures and the supplying of
certain omissions in respect of the number of votes cast for some
candidates.”

(The emphasis is mine.) But the plaintiff’s attempt to link this fact with his
allegation in paragraph (11) of his statement of case that it was admitted that
in the meantime, even up to 15 January 2001 “. . . the first and second
defendants will not finalise the printing of the Gazette before the close of
work that day” was denied by both defendants. (The emphasis is mine.)

Finally, the plaintiff alleges in his paragraph (17) of his statement of case that
the works manager of the second defendant:
“told the plaintiff that the first defendant returned the proofs of the
Gazette on Monday 15 January 2001 and the printing of both Ghana
Gazette Nos 1 and 2 of 2001 were completed after 6 o’clock in the

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 afternoon of that day and actually published on 16 January 2001.”

(The emphasis is mine.) To that averment the first defendant pleaded as

follows:
“(8) The first defendant makes no admissions as regards paragraph
(17) of the plaintiff’s statement of case but avers that all the drafts
from the second defendant had to be scrupulously checked for errors
and that might have been the cause of delay.”

(The emphasis is mine.) The plaintiff naturally fastened hard on this

statement and adds the definite article, “the”, to it even though it is absent
from this statement as set out, supra. It can be seen that this statement “makes
no admissions as regards paragraph (17) of the plaintiff’s statement of case”
but admits that since “all the drafts from the second defendant had to be
scrupulously checked for errors”, that fact “might have been the cause of
delay.” All that can be inferred from this is that the process of scrupulously
checking all the drafts might have occasioned some delay in the publication
of the Gazette in issue in this case. Put at its highest the statement could only
mean that there was some delay in the publication of the said Gazette
occasioned by the said process of scrupulously checking “all the drafts from
the second defendant.” When did the delay commence and end specifically,
has not been stated by the first defendant. For his part, the second defendant,
after some rambling in his paragraph (9); categorically alleged in his
paragraph (11) as follows:
“11. The second defendant further avers that the note of the
publication of the Gazette after all the proofs had been corrected, was
signed by the first defendant on 30 December 2000 and was submitted
on 2 January 2001. The second defendant, therefore, registered the
date for the publication of Gazette Nos 1 and 2 for 5 and 12 January
respectively following the receipt of the Gazette Notice and the two
events did not occur simultaneously.”

Thus, if there was any delay in the publication of the impugned Gazette
notice, two periods of delay are, from the pleadings, discernible, (1) a delay
between 30 December 2000 when the first defendant issued the notice of
publication to the second defendant and 5 January 2002 (the relevant date for
the parliamentary results when the second defendant allegedly published the
same); and (2) from the plaintiff’s standpoint, 30 December 2000 and on or
about 16 January 2001. The first period of possible delay does not involve
any retrospectivity in the publication of the said Gazette notice but the second
period of delay alleged by the plaintiff would involve such retrospectivity.

Election matters are judicially regarded as “fast track” matters: see Nair v
Teik [1967] 2 All ER 34 at 36, PC, where Lord Upjohn delivering the
judgment of the Privy Council, explained that:
“. . . in many cases the right of appeal after the hearing of an election
petition by an election tribunal to which those hearings was entrusted

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 was severely limited, clearly for the reason that it was essential that
such matters should be determined as quickly as possible, so that the
assembly itself and the electors of the representatives thereto should
know their rights at the earliest possible moment.”

(The emphasis is mine.) That is why I have regarded, and in any case the
defendants on the pleadings, also regarded, the period of 30 December 2000
to 5 January 2001 as involving some delay in the publication of the said
Gazette notice. As to which of these two periods of delay occurred or that the
actual date of the said Gazette publication is not 5 January 2001, can only be
settled by evidence. The plaintiff himself shares this view of the matter, for,
in his written submissions dated 19 June 2001, he states as follows:
“The pleadings of the defendants show that the first defendant on 30
December 2000 submitted the notice of the parliamentary results
under his signature to the second defendant for publication in the
Gazette. The second defendant received this on 2 January 2001. The
pleadings of both the first and second defendants are agreed that the
draft print of the notice of the election results were returned by the
second defendant to the first defendant for correction, verification of
figures and the supply of certain omissions. Both defendants agree
that this caused some delay in the final printing of the Gazette. The
defendants for no explicable reason cannot tell this court the date on
which the draft printed notice of the results was returned to the first
defendant and when the corrections, etc were completed for the final
printing of the Ghana Gazette No 1.”

In the face of this difficulty confessed by the plaintiff himself, it is difficult to

see the basis of the plaintiff’s aforementioned claim that he has established
his allegation of the retrospective publication of the said Gazette notice, by
having (as he claims) “adduced direct as well as circumstantial evidence.” If
that were so, then the said difficulty he complains of would have been wholly
immaterial.

In the circumstances, it is not surprising that the plaintiff himself was not sure
that the alleged retrospective publication of the said Gazette notice could be
said to have been admitted on the pleadings. In Pomaa v Fosuhene [1987-88]
1 GLR 244 at 246, SC it was held as stated in holding (3) of the headnote
that:
“A judgment would not be given . . . unless the admission was clear
and unequivocal. In the instant case although the appellants admitted
paragraph 6 (1) of the respondent’s petition, they went on to challenge
the nomination and the very foundation of the alleged election and
clearly indicated that they did not agree that the respondent was the
Adansihene-elect. The statement of defence read as a whole showed
that the admission that the plaintiff was the Adansihene-elect was
equivocal. A number of paragraphs subsequent to it watered down the
admission and made it at best ambiguous. They negated an intention
to admit and could not be a ground for a snap judgment . . .”

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 (The emphasis is mine.)

As I have endeavoured to demonstrate, supra, the defendants’ position in this

case is even stronger. The plaintiff himself, in his memorandum of issues
dated 23 May 2001 set down ... in this suit . . . the following issues for trial:
“(1) Whether or not Ghana Gazette No 1 of 2001 was published with the
retrospective or antecedent date of 5 January 2001.” (The emphasis is mine.)
If the contents of this issue had been admitted on the pleadings by the
defendants it could no longer be an issue for trial. An admitted matter does
not fall for trial. In Pioneer Plastic Containers Ltd v Commissioners of
Customs and Excise [1967] 1 Ch 597 at 601 Buckley J succinctly stated the
matter thus:
“It seems to me that the question which the court has to decide in this
action is partly one of law and partly one of fact. The interpretation of
the Purchase Tax Act, 1963, is a matter of law pure and simple. The
nature of the article, the plastic lid, with which the action is
concerned and the uses for which it is designed and to which it can be
put, are questions of fact. So far as those facts are relevant to the
determination of the case, it is for the plaintiffs to plead the facts in
their statement of claim and if, having pleaded them in the statement
of claim, the defendants admit all those facts, then there is no issue
between the parties on that part of the case which is concerned with
matters of fact. Where there is no issue to be decided there is no
purpose to be served by admitting any evidence.”

(The emphasis is mine.)

There is no doubt that the plaintiff set down the said first issue for trial
because it could not safely be said that it had been plainly admitted on the
pleadings. Nonetheless he omitted to call any evidence on the issue. In
National Democratic Congress v Electoral Commission (supra) this court
unanimously dismissed the plaintiff’s action because he did not adduce any
evidence to substantiate his factual allegations. In my contribution, by which
I still stand, I said at 362:
“However, the plaintiff fails on the merits. As noted earlier, the factual
basis of his action has been denied by the defendant and yet he made
no attempt to lead any evidence of the controverted matters. It is an
old principle of the common law that a party must proceed per
allegata et probata. In this case the plaintiff proceeded per allegata
but wholly dispensed with the probata.”

(The emphasis is mine.)

The plaintiff must, in this case, share the same fate. In this case, the plaintiff
has a pre-existing hurdle to clear since the Gazette publication under section
154 of NRCD 323 is “prima facie evidence of any fact of a public nature.”
The plaintiff has failed to rebut this presumption attaching to the publication
of the Gazette notice, in this case, stated to be 5 January 2001.

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 For all the foregoing reasons, I also dismiss his action.

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