James Gyekye Quayson
The Court of Appeal in Cape Coast yesterday dismissed two out of three preliminary applications filed by opposition National Democratic Congress (NDC) Member of Parliament (MP) for Assin North, James Gyekye Quayson, who has been ordered by a Cape Coast High Court to vacate his seat in Parliament with immediate effect.
The embattled MP in early August was ordered by the High Court presided over by Justice Kwasi Boakye, to leave Parliament on the grounds that he was holding dual citizenship.
He has been challenging the declaration by the High Court and as part of the process, filed an appeal at the Cape Coast Court of Appeal.
Three Applications
There were three preliminary applications he filed after the High Court found that he was holding both Canadian and Ghanaian citizenships whilst filing to contest the 2020 parliamentary election which he won on December 7, on the ticket of the NDC.
First, he filed an application for a stay of execution pending the appeal.
Second, he is asking the appellate court to refer to the Supreme Court for interpretation of Article 94 (2) (a) of the 1992 Constitution.
Finally, the ‘Canada’ MP is asking the appellate court to grant him leave to file additional grounds of appeal.
Yesterday, when the court met in Cape Coast, the embattled MP who was led by Tsatsu Tsikata, was dismissed on the issue of the reference to the Supreme Court for interpretation of Article 94 (2) (a) of the 1992 Constitution.
The court then took the issue of his request for leave to file additional grounds of appeal and that was also dismissed.
However, on the application for stay of execution, pending appeal, the MP said he was filing an application for supplementary affidavit in support of the application for stay of execution, and the court granted the leave and adjourned the case to January 24, 2022, for hearing of the stay of execution.
Main Petition
The petitioner, Michael Ankomah Nimfah, on January 6, 2021, applied for an interlocutory injunction to restrain the then MP-elect from being sworn in and holding himself as MP for Assin North because he claimed the MP held Canadian citizenship.
The High Court granted the application, but in flagrant disregard for the court’s order, James Gyekye Quayson then was subsequently sworn in to be part of the Eight Parliament of the Fourth of Republic on January 7.
In the substantive petition that challenged the qualification to be an MP, the petitioner intimated that per Article 94 of the 1992 Constitution, the Representation of the People Law, Act 284 and the CI 127, Mr. Quayson was not qualified at the time of filing to contest the 2020 parliamentary elections, and should be disqualified.
The petitioner had claimed that as at the time Mr. Quayson was filing his papers with the Electoral Commission to enable him to go to Parliament, he was holding dual citizenship (both Ghanaian and Canadian), which the 1992 Constitution expressly does not allow for all those aspiring to hold public office in Ghana.
The petitioners therefore, asked the court to declare the Assin North Parliamentary Election null and void, and order fresh election.
Final Judgment
A Cape Coast High Court in early August cancelled the results of parliamentary elections in the Assin North Constituency in the Central Region, which Mr. Quayson won on December 7, 2020.
The court subsequently ordered that the filing of parliamentary nomination forms by Mr. Quayson when he held a Canadian citizenship at the time of filing the said nomination forms between October 5-9, 2020 with the Electoral Commission (EC) violates Article 94 (2) (a) of the 1992 Constitution, Section 9 (2) (a) of PNDCL 284 and C.I. 127.
The court also ordered that the EC’s decision to clear Mr. Quayson to contest the parliamentary elections in the Assin North Constituency when the latter was not qualified as a candidate on account of his holding allegiance to Canada other than Ghana, violates Article 92 (2) (a) of the 1992 Constitution, Section 9 (2) (a) of PNDCL 284, as amended and C.I. 127.
According to the court, the decision by the EC to allow Mr. Quayson to contest the parliamentary elections in the Assin North Constituency when he held a Canadian citizenship at the time of filing his nomination forms, violated the electoral laws of Ghana and is of no legal consequence.
The court said Mr. Quayson’s election “is null and void and of no legal effect whatsoever as same violates the electoral laws of Ghana,” because at the time of the election the respondent was not qualified to contest as a candidate in accordance with the electoral laws of Ghana.
“The Court hereby cancels the Parliamentary Elections in the Assin North Constituency organised in December 2020 and further orders 2nd Respondent to conduct fresh Parliamentary Elections in the Assin North Constituency as such,” the judge held, adding that Mr. Quayson “is hereby restrained perpetually from holding himself out as Member of Parliament-Elect for Assin North Constituency and or presenting himself to be sworn in as a Member of Parliament.”
The court also overruled the MP’s challenge that the petitioner, Michael Ankomah Nimfah, did not have the capacity to mount the challenge, and said the petition was competent because the jurisdiction of the court was properly invoked by the petitioner.
The court held that the independence of the EC in the conduct of elections is always guaranteed and the court can only intervene when an illegality resulting in an unconstitutional action has been committed by the commission.
MP’s Argument
Per the grounds of appeal, Mr. Quayson is arguing that “the High Court did not allow for proof of foreign law in the determination of the issues whether or not the appellant owed allegiance to a country other than Ghana.”
He is also arguing that the High Court acted contrary to Article 129(3) when it departed from a Supreme Court decision which stated that nomination period extends beyond the nomination day(s) announced by the Electoral Commission and rather limited itself to the nomination days of October 5 to October 9 announced by the EC.
He is also arguing that the High Court breached Section 20(1) (d) of the Representation of People Act, 1992, (PNDC Law 284) “when purporting to decide that the election of the appellant as a Member of Parliament on December 7, 2020, was void.”
Mr. Quayson is also arguing that the High Court erred in law when it refused or failed to proceed to the trial of the issues raised by the pleadings.
“The decision of the High Court to determine the suit solely on legal arguments where a matter of foreign law was pleaded is in breach of Order 38 Rule 1 and Order 32 Rule 7 of the High Court Civil Procedure Rules, 2004 (C.I. 47) as amended by sub rule 2 of Rule 3B and Rule 7A of the High Court (Civil Procedure) (Amendment) rules, 2014 (C.I 87) respectively.”
Again, he insisted that the “High Court erred in law and out of jurisdiction by not referring the interpretation of Article 94(2)(a) of the 1992 Constitution to the Supreme Court having regard to the different interpretations of the parties in the suit.”
Again, he averred that the High Court erred in law when it held that an election petition in the High Court is a competent procedure for challenging the decision of the EC to clear him for the December 7, 2020 parliamentary election.
The appeal filed by his lawyer, Justin Pwavra Teriwajah, who was yesterday led by Tsatsu Tsikata, concluded that the nullification of the December 7, 2020 parliamentary election in Assin North and a further order for a fresh election lack any constitutional and legal basis as the “judgment is wholly against the weight of the evidence.”
By Ernest Kofi Adu