A Cape Coast High Court has thrown out the case of 23 Assembly members seeking to annul the approval and confirmation of the Metropolitan Chief Executive for Cape Coast, Ernest Arthur.
The presiding judge, Justice Kwasi Boakye, held that the petitioners’ case (the 23 Assembly members) was without legal basis since it was premised on a repealed law.
On November 3, last year, one Godfred Abraham and 22 others, the Petitioners, caused an action to be instituted against the MCE for Cape Coast, Ernest Arthur and two others.
In the said action, the Petitioners who described themselves as current elected members representing some of the Electoral Areas within the Cape Coast Metropolitan Assembly (CCMA), claimed in a declaration that in the matters of the approval and confirmation of the MCE for Cape Coast, the conduct of the MCE, the Presiding Officer and the Electoral Commission were in material breach of Article 243  of the 1992 Constitution and the Representation of People Law, 1992, [PNDCL 284] as amended and section 20  of the Local Government Act, 1993, [Act 462].
They were seeking a declaration that the conduct of the said election to confirm the re-nomination of the MCE, Ernest Arthur, as the Metropolitan Chief Executive (MCE) for the Cape Coast Metropolitan Assembly [CCMA], was fundamentally flawed to amount to a nullity, among others.
The progeny of the Petition was that according to the Petitioners, the election conducted on 17th November 2021 during which the 1st Respondent, the MCE, was allegedly confirmed and or approved by the Assembly Members as the MCE for the CCMA was a sham and same was fraudulent.
Incidentally, on the same day, the Petitioners filed an application on notice praying the Court for an interlocutory order to restrain the Respondents, their agents, representatives, etc. from ‘holding, conveying and or carrying on a meeting of the CCMA to ratify, approve and or endorse the illegal confirmation of the 2nd Respondent and to restrain the 1st and 2nd Respondents (The Presiding Member and the Electoral Commission) from attending any such meeting to ratify, approve and or endorsing the illegal confirmation of the 2nd Respondent pending the determination of the substantive Petition.
Upon service of copies on the Respondents at various times, the 3rd Respondent entered a conditional appearance. Notably, the 1st and 2nd Respondents did not follow suit.
According to the presiding judge, in line with the Rules of Court, the Respondents on different dates filed separate motions on notice to strike out the 2nd and 3rd Respondent as parties to the suit and or to set aside the Petition and to strike out the suit in that order.
The Court disagreed with the 2nd and 3rd Respondents to the extent that they say the Petitioners have improperly joined them to the Petition and did not yield to the first leg of the 2nd and 3rd Respondents’ requests to strike out their names as parties to the Petition.
On the substantive matter, the Court held that the petitioners’ application was incompetent and incurably bad based on a repealed law.
Justice Kwasi Boakye indicated that, once an enactment ceases to have an effect, as a general rule, all other things that derive some powers or authority from that repealed enactment would effectively be extinguished.
He added that as such, where an enactment conferring jurisdiction on the High Court has ceased to have an effect and is to be regarded as having never existed except as to past and closed matters or transactions, such a repealed enactment cannot confer jurisdiction on the High Court.
He averred that It was not in doubt that the Local Governance Act 2016 [Act 936], which expressly repealed the Local Government Act 1993 [Act 462], was assented to on 20th December 2016 by the President of the Republic of Ghana with the date of Gazette notification on the same 20th December 2016.
To him, the available evidence is that the Petitioners commenced their present action on 3rd November 2021, and this was nearly after five years when Act 936 came into force. So, he asked, were the Petitioners not aware that Act 462 has been expressly repealed by Act 936 and that they cannot by law commence an action under a non-existing law?
He thus considered the ‘error’ as a fundamental one that went to the root of the Petition and disagreed with the Petitioners when they argued that it was a mere irregularity or a typographical error and that same can be cured by Order 81 of C.I. 47.
“In my considered opinion, this is incurably bad. The resultant effect of the above discussion is that the Petition filed by the Petitioners has no legs to stand on. In fact, it has no legal basis or foundation,” he said.
He awarded cost against the petitioners, adding: “I can imagine the inconveniences, trauma and embarrassment the Respondents may have suffered as a result of the action. In the circumstances, the Respondents deserve some compensation by means of cost.
“I, therefore, assess cost at ¢5,000 in favour of each Respondent and against the Petitioners. For the avoidance of doubt, the Petitioners are hereby ordered to pay each Respondent cost of ¢5,000.”
In Court were Kweku Kanga-Kesse for petitioners, Daniel Arthur for 1st and 2nd Respondents and Emmanuel Addai for 3rd Respondent.
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