Right of review in presidential election petition

Courts  –  Supreme Court  –  Review  – Jurisdiction  –  Power of Supreme Court to review its decision  – Power of review created under article 133(1) of the Constitution  –  Denial of jurisdiction  – When appropriate  –  Conditions and grounds for exercise of jurisdiction  –  Whether or not rule 71B of CI 74 has effectively abolished Supreme Court right to review its decisions  relating to Presidential Election Petitions  – Constitution, 1992, arts 64(3) and 133(1)  –  Supreme Court Rules, 1996 (CI 16), Part Five, rr 54 and 55 – Supreme Court (Amendment) Rules, 2012 (CI 74), r 71B.

SUPREME COURT, ACCRA

(Writ No J1/7/2013)

Published Friday, April 17, 2014

Mornah   v  Attorney-General

Before their Lordships: Ansah, Sophia  Adinyira,  R C Owusu, Anin  Yeboah, Gbadegbe, Vida  Akoto-Bamfo And Benin Jjsc

Judgement on April 30, 2013

The plaintiff sued in the Supreme Court for a declaration that on a true and proper interpretation of articles 133, 157(2), 93(2) and 11 of the 1992 Constitution, rule 71B  of the Supreme Court (Amendment) Rules, 2012 (CI 74), which had amended rule 55 of the Supreme Court Rules, 1996 (CI 16), pertaining to time to apply for review; and rule 69(C)(5) of the said CI 74, providing that the Supreme Court “shall sit from day to day, including Saturdays, Sundays and public holidays,”  were unconstitutional and null and void. 

In his submission before the Supreme Court in support of the action, counsel for the plaintiff contended that the heading “No review” to rule 71B of CI 74, had truly expressed the intention of the Rules of Court Committee to abolish applications for review in Presidential Election Petitions. For his part, counsel for the defendant Attorney-General, also submitted (in support of the plaintiff’s contention but for different reasons), namely, that the Rules of Court Committee had the power to curtail the right of review by virtue of article 64(3) of the 1992 Constitution. 

The said rule 55 of the Supreme Court Rules, 1996 (CI 16) stated as follows: “55. Time for applying for review - An application for review shall be filed at the Registry of the Court not later than one month from the date of the decision sought to be reviewed.” Whilst rule 71B of the Supreme Court (Amendment) Rules, 2012 (CI 74) also provides as follows: “71B.  No review - Rule 55 does not apply to a decision of the Court in respect of a petition presented to challenge the election of a President.”

On these facts, the Supreme Court unanimously granted the declaration sought by the plaintiff for, inter alia, the following reasons: First, review of the decision of the ordinary bench of the Supreme Court was a right which had been created under article 133(1) of the 1992 Constitution. It was also part of what might be termed the Supreme Court’s continuing jurisdiction: to take another look at its own decision; and that jurisdiction or a right, once created, could only be taken away by way of clearly defined procedures by the appropriate legal body entrusted with that responsibility under the Constitution or other enabling law.  

Thus, under article 133(1) of the 1992 Constitution, the Rules of Court Committee had been mandated to prescribe appropriate conditions and grounds for the exercise of the Supreme Court’s review jurisdiction. 

The Rules of Court Committee had done so by the enactment of Part Five of the Supreme Court Rules, 1996 (CI 16). In the same vein, the Rules of Court Committee had been empowered under article 64(3) of the Constitution to “make rules of court for the practice and procedure for petitions to the Supreme Court to challenge the election of a President.”  

The operative words in article 64(3), namely “practice and procedure” meant no more than the rules that prescribe what steps to follow in order to have a right or duty, judicially enforced, in contradistinction to the law that defined the specific rights or duties themselves. Thus, when the Rules of Court Committee was charged under article 64(3) of the 1992 Constitution with the responsibility of enacting rules to regulate the conduct of the practice and procedure in Presidential Election Petitions, it meant the substantive laws were different from what the committee was empowered to do. The committee was not empowered to amend the substantive law without express authorisation. 

One such substantive law in place was the right of review given to the Supreme Court by virtue of article 133(1) of the 1992 Constitution. Review was not a matter of mere procedure, but an important and substantial constitutional right. Any attempt to alter the right of review would be ultra vires the functions of the Rules of Court Committee.

Second, contrary to the contention of both counsel for the plaintiff and the defendant, rule 71B of the Supreme Court (Amendment) Rules, 2012 (CI 74), did not purport to abolish the right of a party to apply for review of the decision of the Supreme Court under article 133(1) of the 1992 Constitution. 

The true effect of rule 71B was that, having abolished rule 55 providing for time for applying for review in relation to Presidential Election Petitions, it meant no more than that, in relation to Presidential Election Petitions, there was no time limit within which a party might apply for review. 

Fixing of time within which a party might apply for review before the Supreme Court, fell within the competence of the Rules of Court Committee under article 64(3) as well as article 133(1) of the 1992 Constitution. 

In so holding, the Supreme Court (per His Lordship Benin JSC) further clarified the legal position when he said that: “Whereas rule 54 retains the court’s right to review its own decision and a fortiori a party’s right to apply for review, rule 55 of CI 16 as amended by rule 71B of CI 74, for its part removes any time limitation in Presidential Election Petitions...The right of a party to apply for review is not synonymous with time within which to apply for a review; the former is a right given to a party within the jurisdiction of this court, which the committee has no power to curtail; the latter is a matter of practice and/or procedure which the Rules of Court Committee is fully empowered to deal with.

 Rule 71B is thus constitutional. However, rule 71B failed to substitute another time frame for the right of review to be exercised in Presidential Election Petitions. 

However, time is of the essence in review applications in order to bring litigation to a close on grounds of public policy.

 Rule 71B appears to be ineffectual because Part Five of CI 16 applies to review in the Supreme Court and it would equally apply entirely to review in Presidential Election Petitions, as it does not state or foreclose the categories of cases to which it may apply.”