Frimpong v. Vetting Committee and Electoral Commission (2024) JC (2 ^nd May, 2024)

Material Facts:

The plaintiff, Worship Joshua Frimpong, was an aspirant for the office of SRC President in the 2024 GIMPA SRC Election. He and his vice presidential aspirant, Jephthah Kankam Benpong, were disqualified from contesting the election by a vetting committee on grounds of failing to meet certain eligibility requirements in the GIMPA SRC Constitution and fraud.

On the issue of failing to meet the eligibility requirements in the GIMPA SRC Constitution, the vetting committee, per its report on the disqualification of the plaintiff, advanced that Article 51 of the GIMPA SRC Constitution requires persons with executive positions to resign from office 21 days prior to the election. However, contrary to this requirement, Mr Kankam, a member of the Sports Committee, failed to resign within the stipulated period. In addition, the committee stated that Article 51 requires that the nomination forms of aspirants be endorsed by five members of the General Assembly. However, contrary to this requirement, one Selasi Kwame Atamudzi, who endorsed the plaintiff’s forms as a General Assembly member, was not a General Assembly member properly so-called.

The plaintiff instituted the present action for an order of certiorari to quash the disqualification decision of the vetting committee. They contend that a sports committee member is not in an executive position, and consequently, the failure of Mr Jephthah Kankam Benpong to resign does not affect his eligibility. On the issue of failing to get five endorsements from members of the general assembly, they contended that the vetting committee, upon discovering the failure, should have given the plaintiff a chance to rectify it, and failing to do so is unreasonable and contrary to the principles of natural justice.

Issues:

1. Whether or not a member of a committee of the SRC is in an executive position.
2. Whether or not Mr Jephthah Kankam Benpong resigned within 21 days prior to the election as required by Article 51.
3. Whether or not the vetting committee, upon discovering that the plaintiff failed to get his nomination form endorsed by five General Assembly members, ought to have given the plaintiff a chance to remedy his failure to meet that requirement.
4. Whether or not the court should grant an order of certiorari to quash the decision of the vetting committee to disqualify the plaintiff.

Arguments of the Plaintiff:

1. That on a true and proper interpretation of Articles 18, 20, 21, and 25 of the GIMPA SRC Constitution (SRC Constitution), executive officers consist of only elected executives and members of the executive committee. Consequently, a member of a committee, who is not elected, is not in an executive position.

2. Even if it were held that committee members are in executive positions, Article 51 requires that such a person resign within 21 days prior the election. That “within” should be interpreted in such a manner that any resignation that occurs even less than 21 days is considered to be “within the 21 days period” required by Article 51, and hence in accordance with said Article.
3. That per the case of The Republic vs. Mrs Charlotte Osei And The Electoral Commission Ex Parte Dr. Papa Kwesi Nduom Suit No.Gt/1401/2016 , where the Supreme Court held that the electoral commission should have given a chance to Ndoum to correct an error on his nomination forms, a case he contends is on all fours with the present case, the vetting committee should have also given a chance to the plaintiff to correct the errors on his form.
4. That the decision of the vetting committee to disqualify the applicant without giving him a hearing was contrary to the rules of natural justice and unreasonable.

Arguments of the Defendants:

1. That per Black’s Law Dictionary, “executive” is the residue of all government after subtracting the judiciary and legislature. That once it is established that Mr Jephthah Kankam Benpong formed part of the present SRC administration and is not part of the judiciary or the legislature, the only other place he can be is the executive (the residue).
2. That beyond a literal interpretation, and per the dictum of Atuguba JSC in Re Presidential Election Petition [2013] SC GLR (Special Edition), the court still has a duty to search for the purpose behind the provision even when the words of a provision are clear. Counsel for the first defendant submitted that the purpose behind the provision that requires the resignation of persons in executive positions who want to contest for executive offices is to prevent such persons from using their positions to influence the outcome of the elections. Consequently, “executive positions” as contained in Article 51 should be interpreted to prevent such a situation.
3. That the reason for the 21-day resignation period is to ensure that people in executive positions distance themselves from the election process and from the power and influence their positions in committees confer on them. Consequently, allowing such persons to hold on to such power and influence even till election day, as suggested by the plaintiff, will defeat the intent behind the 21-day resignation period.
4. That unlike in Ex Parte Ndoum (supra), the failure of the plaintiff to have his forms endorsed by the five General Assembly members was not apparent on the face of the nomination forms, and the committee had to journey beyond the document to discover the plaintiff’s failure to meet this requirement.
5. That even if the plaintiff satisfied all requirements, the attempts by the running-mate of the plaintiff to backdate his resignation letter amount to fraud, which vitiates his candidature and stains his hands, contrary to the maxim “he who comes to equity must come with clean hands.”

Holdings:

1. A member of a committee of the SRC is a person in an executive position.
2. Mr Jephthah Kankam Benpong did not resign as a member of the sports committee within 21 days prior to the election.
3. The committee was not mandated or under a duty to give the plaintiff a chance to remedy his failure to meet the requirement in Article 51 and acted within their powers when they disqualified the plaintiff without offering him such a chance.
4. An order of certiorari should not be granted.

Ratio Decidendi:

The majority decision was delivered by Nana Araba Mensimah Mensah CJ. Her ladyship distinguished between executive positions and executive officers (note that in Article 51, it is the “executive positions” that is used, not “executive officers). Per her ladyship:

This court will do a great disservice to the members of this highly esteemed institution if it buys the petitioners argument to interpret that executive officers and executive committee members are the only ones with an executive position. In interpretating of the Constitution, it must be noted with utmost importance that the Constitution must be read as a whole and not in parts.

Per her ladyship, Article 6 of the SRC Constitution distinguishes between two classes of students: those who play a role under the SRC Constitution and those who do not play any role under the SRC Constitution. She added that, using the modern purposive approach to interpretation, “executive position should mean persons who perform executive functions within an administration, as reflected in Article 6. Hence, all members of a committee set up under an administration are deemed to be members occupying an executive position.”

Having held that the running mate of the plaintiff was in an executive position, their lordships, relying on the case of Republic v. High Court (General Jurisdiction) Accra; Ex-parte Dr. Rawlings [2016] GHASC 18 (19 May 2016) , stated that the running mate of the plaintiff was required to meet all eligibility criteria at the time he was filing his nominations. Given the failure of the plaintiff’s running mate to resign 21 days prior to the election, as required by Article 51, Mensah CJ concluded that “the 1st Respondent was within his right to disqualify any candidate who did not meet the eligibility criteria as stipulated in Article 49(3) of the SRC Constitution. They are cloaked with the powers to disqualify if you do not meet the eligibility criteria”.

On the third issue, Mensah CJ distinguished between the present case and that of Ex Parte Paa Kwesi Nduom.In the Ndoum case, the facts reveal that there was an error apparent on the face of the record, and the error was of such nature that it did not go to the core of the eligibility criteria. Relying on the case of ACIT v. SAURASHTRA KUTCH STOCK EXCHANGE LTD C/A NO. 1171 OF 2004 dated September, 15, 2008 the court described an error apparent on the face of the record as “a patent, manifest and self evident error which does not require elaborate discussion of evidence or argument to establish it.” In the present case, the plaintiff was given a chance to correct some other errors that were apparent on the face of his nomination forms. However, per Mensah CJ,

the error of a non-General Assembly member was not one that they could have determined at the time of vetting as they had to journey beyond the document to confirm if the names submitted by the candidate are a true reflection of actual General Assembly members or not. I do not see any error of law as it is unreasonable to expect or contemplate that the Vetting Committee can look at a couple of names written and determine whether or not they are General Assembly members.

On the final issue, her ladyship noted that in granting the equitable remedy of certiorari, the court averts its mind to the equity maxim that “he who comes to equity must come with clean hands." In the present case, “the petitioner did not meet the eligibility criteria; he has breached the law and hence cannot be granted an equitable remedy of certiorari.”

Accordingly, on a 4:1 majority decision, the grant for certiorari is dismissed.