HOME 1970 GHANA LAW REPORT

107. APPIAH v ATTORNEY-GENERAL: RE ELECTION

OF FIRST PRESIDENT OF SECOND REPUBLIC

C.A. 25.9.70

(Bannerman Ag. CJ, Lassey and Amissah JA)

Constitutional law - President – Election of - Whether election conducted under inapplicabl

Whether precluded official gave directions as to the conduct of the elections - Whether elec
President of the Second Republic a nullity - Constitution, 1969, articles 2(1), 3, 4(6) 40(e), 4
71(1), 115(1), 116(7)(a), 169(8) and 176 - Constitution, 1969, Sched.I, s.5(1) - Preside
Regulations, 1970, (C.I. 8) - Presidential Election (Challenge) Rules, 1970, (C.I. 10).

Constitutional law - President - Election of - Party challenging election qualified to be no

candidate for election - Party not taking any steps to become nominated - Whether party could
“had the right to be nominated” such that he would qualified to challenge the election - Whe
exists between being “eligible” or “qualified” to be nominated and having the right to be nomina
2.

The petitioner who described himself as “a citizen of Ghana who claims to have had the right to
as a candidate for election as first President” in an amended petition asked the court to deter
or not the constitutional instruments published by the Interim Electoral Commissioner [the pe
stated “Presiding Officer”], were in compliance with the provisions of the Constitution as laid d
3 and 4(6) of the First Schedule (Transitional Provisions Part I).” The final prayer in the pet
declaration “that the said Edward Akufo-Addo, Esquire, was not duly elected and that the elec

The respondent filed a preliminary objection to the petition alleging that the petitione
standi. In effect the respondent allowed that the petitioner was qualified to be nominated as a
the election, but since he had not shown or alleged any facts to show that he had taken any
obstructed from taking any steps, to become nominated, he could not therefore claim to have
be nominated for the purpose of the election.

In support of the petition it was submitted (1) that the Presidential Election Regulation
inapplicable to the election because of section 4(6) of the 1969 Constitution, Sched. I and y
was in fact held under those regulations; and (2) that since the presiding officer applied tho
contrary to the constitution and the Interim Election Commissioner not only took part in the s
also gave certain directions as to the conduct of the election, then the whole election was vo
have been declared invalid. It was submitted further that the regulations were themselves inv
offended against the Constitution in that (a) regulations 7(1) (c) prevented a secret ballot; (b
an 14 conferred power on the person who made them; (c) the regulation which prescribe
N¢500.00 was not authorized and could have restricted persons otherwise qualified to be cand
Interim Electoral Commissioner had ceased to hold that office when he purported to make the

Held; dismissing the petition: (1) “the distinction sought to be drawn between being eligi
to be nominated and having the right to be qualified to be nominated is one without a
person who was qualified to be a candidate in the election of the first President, and
could have gone through all the processes of nomination to be such a candidate can ce
have had the right to be nominated for the purpose of that election, even though he did
any steps to exercise his right.” The preliminary objection was overruled.
(2) In the exercise of its special and exclusive jurisdiction, the Court of Appeal could no
with the enforcement of the Constitution in the conduct of an election or with the validity
generally, rather it could only determine a question of validity of the election of the
depending upon the qualification of the President or the interpretation of the Co
particulars and nature of which question must be given as required by the Presid
(Challenge) Rules, 1970, r. 2 (b). In this case the specific question raised in the amende
meaningless and not capable of adjudication or interpretation. Awoonor-Willams v Gbe
C.C. 18, and Tait v Ghana Airways Corporation, Supreme Court, 29 July 1970, unrepo

OBITER: (1) it was not disputed that the regulations to be applied generally in preside
were legally excluded in the election of the first President. With no provision for
regulations, it was open to the presiding officer to adopt such parts of existing p
regulations as were not inconsistent with the Constitution. Similarly it was within his
acting under powers conferred by article 174(c), to call to his aid any such expert advic
discretion, considered helpful in the execution of his duties. This procedure could not ha
the whole election.
(2) “We agree that the secrecy of the ballot was fundamental to the election but we a
the evidence on record that such secrecy was in fact maintained during the election
with the directions of the presiding officer.”
 (3) “Whether or not provision was made in the Constitution for the payment of a d
satisfied that payment of such deposits by candidates in public elections is a norm
designed to discouraged frivolous persons from making a mockery of electoral proce
adoption of such practice by the presiding officer in seeking to conduct a fair election, i
of any law to the contrary, should not be a ground for invalidating the election.”
(4) [R]egaring the competence of Mr. Justice Charles Crabbe continuing to be Int
Commissioner… we do not consider that this particular issue is material in this case …
raised without notice in the petition and in such a manner that all we can do is to ob
matter requires the attention of the appointing authority, without seeking to usurp his pow
any pronouncement on data before us which we consider to be insufficient for a prope
and decision of the matter.”
(5) “We do not think that it can be said, or even suggested, that in the election under review
returned had not really been elected by the majority of the electors and we satisfied that th
really and in substance conducted in accordance with the existing election law.” Medh
and Casquet (1901) 17 T.L.R. 210 at p. 230 and Woodward v Sarsons (1875) L.R.10 C.P. 733
745 applied.

Petit

Also referred to:

(1) Chaffers v Goldsmit [1894] 1 K.B. 186

(2) Monks v Jackson [1876] C.P. 683

Counsel:

Joe Reindorf (J.N. Heward-Mills with him) for the petitioner.

N.Y.B. Adade, Attorney-General (Appiah-Minkah, Deputy Attorney General, Dr. Asa

General, and K. E. Sekyi, Principal State Attorney, with him for the respondent.

EXTRACT FROM JUDGMENT:

“Although the petitioner did not comply with the requirement of rule 3(d) of C.I. 10, name
shall state… details of any facts in support of his case and the witnesses, if any, on whom he
for the proof of such facts,’ he was nevertheless allowed to present his case without supplyin
and to call, as a witness, the Interim Electoral Commissioner, who had not been mentioned a
the petition. This indulgence was granted in an effort to give the petitioner every opportunity t
his support for the rule of law which, according to his counsel, had motivated him to file th
should not be taken as a precedent, and it would have been more satisfactory if the petitioner
with the rules of the law governing the institution of such proceedings in his bid to establish th
of law. It is not necessary for us to stress that in a case like this where the rules of procedure
are those of the Court of Appeal, with such modifications as may be necessary, the ques
determination should be stated clearly and precisely, and such details of facts, with other par
required by the rules to be supplied, must be given to help the court determine the issues. The
turned out before us, was rather unsatisfactory with the petitioner appearing to shift his ground
to question the validity of the election on arguments which appeared to arise as the case proc

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