High Court ruling on re-collation flawed -Lawyer Kwame Akuffo

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In every aspect of life, a person is entitled to double fidelity, except in matters of the law.

The established practice and legal framework require that challenges to the declaration of a winner in an election must be made through a petition.

The recent disputes concerning election declarations must be considered against this settled practice.

It is my understanding that an Electoral Commission (EC) officer cited duress as the basis for making a declaration in favour of a candidate. The party in whose favour the declaration was made denies this factual claim. In such circumstances, there is a clear dispute regarding the facts or contested evidence.

The fundamental principle of law asserts that in contested matters, judicial review remedies are not admissible, except in jurisdictional cases where evidence is led on a collateral fact.

Under these circumstances, granting an application for judicial review in an election dispute involving allegations of duress is a flawed approach.

Respectfully, as an example, where a judge delivers judgment without considering certain aspects of the evidence, the appropriate remedy is an appeal, not judicial review.

The situation, in my view, is no different in cases where a declaration is made without fully considering the “pink sheets.”

The allegation of duress by the EC officer carries a suggestion of criminality. In such cases, the court must determine the matter on a slightly higher standard than the balance of probabilities in civil proceedings.

It is the responsibility of the EC, which alleges duress, to bring the issue before the court, not the other way around.

Yesterday’s proceedings were fundamentally flawed.Other interested parties were not joined in the process, constituting a clear breach of natural justice.

It is crucial that courts and legal practitioners adhere to established principles in such contentious matters.

At the heart of these mandamus applications is a challenge to purported declarations. The most fundamental flaw in these cases is that the applicants lack a cause of action, as the declarations are ineffective unless gazetted.

The law provides an avenue for aggrieved parties to raise complaints, enabling them to seek remedies regarding the processes leading to a declaration. In such instances, a party may seek an order directing the EC to act in accordance with CI 127.

However, once a declaration is made, it merges into the common law. An aggrieved party must wait for their cause of action to accrue. Premature judgments do not serve the cause of justice.

Finally, I draw attention to Order 55, Rule 5(3) of CI 47, which provides that a respondent to an application for judicial review is entitled to a minimum of seven days to respond. This application, filed on 17th December 2024 and heard on 20th December 2024, is highly questionable.

In the absence of an application to abridge time, the court had no jurisdiction to hear the matter.

Kwame Boafo Akuffo, Esq.
P.O. Box 99
Akropong-Akwapim