INTRODUCTION
On 24th November 2025, the High Court, Commercial Division, Tamale, presided over by His Lordship Justice Emmanuel Bart-Plange Brew, delivered judgment in an election petition annulling the parliamentary election results for the Kpandai Constituency and ordering a re-run, having found that irregularities and inconsistencies in Form 8A (the Statement of Polls for the Office of Member of Parliament) affecting forty-one of the one hundred and fifty-two polling stations, contrary to Regulations 39 and 43 of the Public Elections Regulations, 2020 (C.I. 127), vitiated the entire result for the Kpandai Constituency.
Dissatisfied with the judgment of the High Court Tamale, Mathew Nyindam, the applicant declared winner by the Electoral Commission, filed two Notices of Appeal at the Court of Appeal and an Application for Judicial Review in the nature of Certiorari at the Supreme Court, contending that the High Court judge had wrongfully assumed jurisdiction to hear, determine and give judgment in the matter, on the footing that the underlying election petition had been filed outside the twenty-one-day period prescribed by law[1]
On 28th January 2026, the Supreme Court, sitting as the Ordinary Bench (Pwamang JSC presiding, with Amadu Tanko, Yonny Kulendi, Samuel Asiedu and Henry Anthony Kwofie, JSC), by a four-to-one majority decision granted the Application for Certiorari and quashed the judgment of the High Court, together with all proceedings and processes leading to it, on the basis that the twenty-one-day limitation period operated as a jurisdictional bar.
I respectfully submit that the Supreme Court's decision in The Republic v. High Court (Commercial Division), Tamale; Ex parte Mathew Nyindam (Daniel Nsala Wakpal, The Electoral Commission & The Clerk of Parliament, Interested Parties), Civil Motion No. J5/13/2026, Supreme Court of Ghana, 28th January 2026 (unreported) invites serious scrutiny. It is my submission that in treating the twenty-one-day limitation period as an absolute jurisdictional bar, the Supreme Court allowed the clock to trump the merits of a parliamentary election petition supported by documented and established electoral irregularities.
The reasons for my submission above are as follows:
- The majority decision of the Supreme Court, in treating the twenty-one-day limitation period as a jurisdictional bar capable of ousting the High Court's constitutionally-granted jurisdiction under Article 99(1), failed to have regard to Article 99(2) of the 1992 Constitution, which contemplates that a person aggrieved by the determination of the High Court under that article may appeal to the Court of Appeal.
- The majority decision deprived the applicant and the people of Kpandai of a fair hearing on the merits of established electoral irregularities and inconsistencies contained in Form 8A, in respect of forty-one of the one hundred and fifty-two polling stations, which had already been found by the trial court to have affected the entire parliamentary election results.
- The majority decision fundamentally erred in attributing the legal consequences of the Electoral Commission's own ambiguous administrative conduct, particularly around the gazette notification, to the 1st Interested Party, contrary to the principles of legitimate expectation and natural justice.
- The decision, by resolving a matter of profound public interest on a threshold procedural point rather than on the substantive merits of the election dispute, sets a concerning precedent for electoral justice and constitutional democracy in the country.
THE APPLICANT’S CASE
CASE OF THE 1ST INTERESTED PARTY (MR. WAKPAL)
The Applicant contended that:
The learned High Court Judge committed a jurisdictional error when he assumed jurisdiction to hear and determine the Parliamentary Election Petition filed by the 1st Interested Party on the 25th day of January 2025 in respect of the Parliamentary Election held at the Kpandai Constituency on 7th December, 2024, after the expiration of the statutory twenty-one (21) days from the date of the publication in the Gazette of the election results to which the petition relates.
The trial Judge committed an error of law apparent on the face of the record when he proceeded to hear and give Judgment on the Petition filed by the 1st Interested Party on the 25th day of January 2025, contrary to and in breach of section 18 of the Representation of the People Law, 1992, P.N.D.C.L. 284, thereby rendering his Judgment dated 24th November, 2025 void and a nullity.
That the petition was invalid and could not invoke the jurisdiction of the High Court, thereby rendering the entire proceedings and any resultant judgment void.
The Applicant further maintained that, even if jurisdiction were properly vested, the substantive claims in the petition were without merit, as irregularities in forty-one polling stations, even if established, could not have materially affected the overall result from the one hundred and fifty-two polling stations.
The 1st Interested Party contended that:
The Applicant had engaged in fraud. He submitted that on 23rd December 2024 he filed an election petition, Suit No. NR/TL/HC/E13/15/25, challenging the declaration of Mr. Nyindam as Member of Parliament-elect for the Kpandai Constituency, and that he paid the prescribed security for costs on 3rd January 2025 in compliance with the statutory requirements.
That upon being served with the election petition filed on 23rd December 2024, Suit No. NR/TL/HC/E13/15/25, Mr. Nyindam entered a conditional appearance and filed a motion on notice seeking to dismiss the petition on the ground that it had been filed prematurely, contending that the results of the 7th December 2024 election had been gazetted on 6th January 2025.
Mr. Wakpal averred that he and the High Court Tamale relied on this representation, and that in reliance on the Applicant's Supplementary Affidavit deposition that the Electoral Commission had published the results on 6th January 2025, he filed a Notice of Discontinuance, wholly discontinued the 23rd December 2024 petition, and caused a fresh petition, Suit No. NR/TL/HC/E13/22/25, to be filed on 25th January 2025, since the Applicant had not yet filed a response to the petition dated on 23rd December 2024, Suit No. NR/TL/HC/E13/15/25.
On this footing, Mr. Wakpal contended that the Applicant's conduct was fraudulent, in that he had induced Mr. Wakpal to act to his own detriment, only to now seek an unfair advantage by applying for certiorari to quash the very judgment that followed. He further contended that the Applicant, having had knowledge of the 24th December 2024 gazette all along, and yet having accepted, consented to, participated in and relied upon the proceedings before the High Court through to judgment, had acquiesced in whatever want of jurisdiction was now alleged, and that the Supreme Court ought not to permit him to rely on the 24th December 2024 gazette to benefit from certiorari after having earlier relied on a different gazette date to his advantage before the trial high court.
The High Court Tamale, had jurisdiction to hear the Parliamentary Election Petition and rightly assumed jurisdiction to hear the Petition.
A Certiorari remedy is discretionary and the conduct of the Applicant in the Application for Judicial Review in the nature of Certiorari should disentitle him to the remedy.
In sum, Mr. Wakpal's case was that Mr. Nyindam could not be permitted to take inconsistent positions in the same matter, or, in the language of the law, to approbate and reprobate. He further pointed out that Mr. Nyindam had already benefited from the High Court's award of costs in the sum of Seven Thousand Ghana Cedis (GHS 7,000), made in his favour following the discontinuance of the earlier petition in Suit No. NR/TL/HC/E13/15/25.
CASE OF THE 2ND INTERESTED PARTY (THE ELECTORAL COMMISSION)
The 2nd Interested Party, the Electoral Commission, caused an affidavit to be filed on its behalf by Mr. Samuel Tettey, a Deputy Chairperson of the Commission, on 10th December 2025.
In the said affidavit, the 2nd Interested Party admitted that on 7th December 2024, it conducted a general election in the country.
The 2nd Interested Party deposed that on 24th December 2024, it gazetted the results of 271 parliamentary constituencies, and that on 6th January 2025, it gazetted the results of the remaining four parliamentary constituencies.
ISSUES IDENTIFIED BY THE SUPREME COURT FOR RESOLUTION
- What was the operative date of the Gazette publication of the Kpandai Election result, and what are the implications under Section 18 of the Representation of the People Law, 1992 (PNDCL 284)?
- Whether the 1st Interested Party filed the Election Petition within the 21-day statutory period (and furnished the required security for costs within the same period)? If not, did the failure render the petition incompetent, thereby depriving the High Court of jurisdiction to hear it?
- Whether the alleged irregularities and inconsistencies in 41 polling stations (out of a total of 152 polling stations), even if taken as proven, were sufficient to materially affect the outcome of the parliamentary election?
- Whether the 1st Interested Party's allegation of fraud on the part of the Applicant, premised on the Applicant’s presentation of inconsistent dates for the Gazette publication rendered the instant application meritless?
DECISION OF THE SUPREME COURT
The Supreme Court by a four-to-one majority with Kulendi JSC delivering the lead opinion held that "the effect, therefore, of proceedings commenced in clear breach of a mandatory statutory requirement is to render the proceedings a nullity. Such a breach goes to the very foundation of the court's authority, and any step taken in contravention of the statute is legally ineffective"[2].
It is important to reproduce and note this portion of the Supreme Court's decision which provides the reasoning behind the majority's holding that the twenty-one-day limitation period operated as a jurisdictional bar.
The Supreme Court reasoned that "the twenty-one (21) day timeline is therefore an express statutory prescription governing the invocation of the High Court's jurisdiction in parliamentary election petitions. The statute does not provide any dispensation and/or discretion by which the Court may extend time beyond the mandatory period. The words, "shall be presented within twenty-one days", are cast in unmistakably mandatory terms. Accordingly, the High Court must act strictly within the limits of the jurisdiction conferred by law, and it has no authority to entertain an election petition filed outside the prescribed twenty-one days"[3].
On the operative gazette date, the Court held that "…the Gazette publication of 24th December, 2024 constitutes the relevant publication for purposes of Article 99 of the Constitution and section 18(1) of PNDCL 284. That Gazette has not been alleged, let alone proved, to be fraudulent, irregular or not emanating from the proper authority mandated by law to publish such notices"[4].
The Court further held that "to compute the statutory period from 6th January, 2025 instead of 24th December, 2024 would lead to an untenable result... That would confer an undue and dangerous power on political actors and public institutions to affect the administration of electoral justice by manipulating Gazette publications. The law cannot be read to permit such manipulation"[5].
On the effect of the finding, the Court concluded that "the petition that initiated the proceedings culminating in the judgment now under review was filed on 25th January, 2025, that is, thirty-two (32) days after the Gazette publication of 24th December, 2024. It was, therefore, filed out of time, in clear breach of section 18(1) of PNDCL 284. This Court cannot lend judicial approval to a violation of the express terms of Statute"[6].
Accordingly, the majority held that "we hold that the High Court was not clothed with jurisdiction to entertain the election petition filed on 25th January, 2025. The judgment delivered on 24th November, 2025 is consequently a nullity"[7].
CONCURRING OPINION – AMADU TANKO JSC
Amadu Tanko JSC, concurring, noted that "Section 18 of the Representation of the People Law, 1992 (PNDCL 284), regulates the time for the presentation of a Parliamentary Election Petition. Section 18(1) provides as follows: 'An Election Petition shall be presented within twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates'... The law is emphatic that; 'the time limit provided by this section for the presentation of an Election Petition shall not be extended'"[8].
On the operative gazette date, His Lordship held that "the Electoral Commission (EC) officially gazetted the Kpandai Constituency Parliamentary Election results on 24th December 2024... Computing twenty-one days from 24th December 2024, the statutory timeline for filing any election petition expired on 14th January 2025. It is undisputed that the 1st Interested Party's election petition was filed on 25th January 2025, well outside the prescribed timeline"[9].
On the argument that a second gazette reset the clock, His Lordship held that "from the affidavit and attachments before the Court, I do not find any statutory or factual basis for the 1st Interested Party's claim that a later gazette replaced the earlier one... The contention by the 1st Interested Party that the time for filing the Parliamentary Election Petition began to run from 6th January 2025, rather than 24th December 2024, is therefore wholly untenable"[10].
On the effect of late filing, His Lordship held that "in view of the finding that the petition was not presented within the mandatory timeframe, the necessary legal consequence is that the petition is incompetent ab initio... In the words of the Applicant's counsel, the petition in this case was 'ineffective and impotent to invoke the jurisdiction of the High Court.' I agree with that characterization"[11].
On the effect of the Applicant's participation in the trial proceedings, His Lordship held that "A statutory time-limit for instituting an election petition is not akin to an ordinary procedural timeline that can be extended or overlooked; it is a condition attached to the right of action itself. Since the timeline is a statutory precondition, defences founded on estoppel or acquiescence are clearly untenable, for estoppel is not, and cannot operate to suspend or override, the prescriptions of statutes— in this instance, Article 99 of the 1992 Constitution vis-à-vis PNDCL 284."[12].
On the substantive merits, notwithstanding the jurisdictional finding, His Lordship held that "in the instant matter, the petition did not convincingly demonstrate that the irregularities in the 41 polling stations actually altered the outcome of the Kpandai election… I hold that the alleged irregularities in 41 polling stations, even if assumed to be true, were insufficient to materially affect the overall result of the Kpandai parliamentary election"[13].
On the allegation of fraud raised against the Applicant, His Lordship held that "I reject the 1st Interested Party's allegation of fraud as unfounded and unproven. The allegation was neither specifically pleaded in the original action nor properly substantiated, being strangely raised only in an affidavit in opposition before this Court"[14].
On why certiorari, rather than appeal, was the appropriate remedy, His Lordship held that "given the peculiar circumstances of this case, the remedy of certiorari presents itself as the most suitable and effective form of relief. For these reasons, I had no hesitation in granting it"[15].
CONCURRING OPINION – ASIEDU JSC
On the 1st Interested Party's claim that he relied on the Applicant's representation as to the gazette date, His Lordship held that "it is therefore not within the right of the 1st Interested party to depose that he relied on a deposition of the applicant to the effect that the result of the Parliamentary election of the Kpandai Constituency was gazetted on the 6th of January 2025. The 1st Interested party cannot constitute the applicant into an agent to inform him of the date that the result of any general election was gazetted"[16]. His Lordship added that "the gazetting of a Parliamentary election result is a matter of public knowledge. It is a fact about which the Court can take judicial notice"[17].
On the validity of the two gazette dates, relying on the Court's earlier decision, His Lordship held that "the issue as to which of the gazette publications of 24th December 2024 or that of 6th January 2025 is valid... is not a question confronting this court for the first time in the instant matter. In Civil motion number J5/37/2025 (Unreported) dated the 11th June 2025, titled The Republic vs. High Court 3, Koforidua, Ex-parte Ernest Yaw Kumi, (Hon. Henry Boakye Yiadom and 2 Others, Interested Parties) the court held... that 'the gazette notification No. 234 dated the 24th December 2024 was the valid one'... This court, therefore, has no reason to depart from the finding of fact made in the Akwatia case. Consequently, I hold that as far as the Kpandai Parliamentary election is concerned, the gazette published on the 24th December 2024 is valid and supersedes the re-publication made by the 2nd Interested party on the 6th January 2025"[18].
On the consequence of late filing, His Lordship held that "… the petition was filed about thirty-two (32) days after the results of the election had been gazetted instead of being filed within twenty-one (21) days after the gazette as required by law. It follows therefore that the petition was contrary to and in flagrant disobedience of the law as provided in PNDC Law 284. The said petition, in suit number NR/TL/HC/E13/22/25 is therefore invalid and could not have invoked the jurisdiction of the High Court, Tamale"[19].
His Lordship concluded that "I am very satisfied that in entertaining the petition of the 1st Interested party herein in suit number NR/TL/HC/E13/22/25 and in delivering judgment in that suit, the High Court, Tamale acted without jurisdiction... I will therefore grant the instant application and make an order that the proceedings in that case together with the judgment delivered by the High Court Judge on the 24th November 2025 be brought up to this court to be quashed and I proceed to quash, by the prerogative writ of certiorari, the said proceedings and the judgment dated the 24th November 2025"[20].
CONCURRING OPINION – KWOFIE JSC
On the applicable law, Kwofie JSC set out section 18 of the Representation of the People Law, 1992 (PNDCL 284) in full, noting that "The law is therefore clear that Parliamentary Election petition must be filed within 21 days after the results of the Election to which the petition is related have been gazetted. It follows, therefore, that any Parliamentary Election Petition filed before the Election results to which the petition relates is gazetted or a Petition filed more than 21 days after the gazetting of the results of the Election to which the petition relates is invalid"[21].
On the operative gazette date, relying on the Court's earlier decision, His Lordship held that "this Court in the case of the Republic vs. High Court 3 Koforidua Ex-parte Ernest Yaw Kumi, (Hon. Henry Boakye Yiadom, Electoral Commission, Clerk of Parliament, Interested Parties) Civil Motion no. J5/37/2025 dated 11th June 2025 had the opportunity to establish that Akwatia Constituency Election results was published in Gazette notification number 234 dated 24th December 2024... It is worth noting that the same Gazette Notification No. 234 was attached to the applicant's Affidavit in Support, and it clearly shows that the Kpandai Constituency Parliamentary Election held on the same 7th December 2024 was published in the same Gazette Notification 234 on 24th December, 2024 and I accordingly find that the Kpandai Parliamentary Election result was Gazetted on the 24th December 2024 and not 6th January 2025"[22].
On the consequence of late filing of the Election, His Lordship held that "so, looking at the law on the time for filing Parliamentary Election Petition in terms of section 18(1) of P.N.D.C.L 284 and the evidence before me that the Petition of the 1st interested party was filed on the 25th of January 2025, I find that the Petition was filed 32 days after the Publication of the Gazette and therefore filed out of time and therefore invalid"[23].
On the "re-gazetting" argument advanced by counsel for the 1st Interested Party, His Lordship held that "we reject that contention and the whole concept of Re-gazetting as submitted by counsel for the 1st interested party and state unequivocally that there can only be one Gazette Publication in respect of a Parliamentary Election result. Once there has been a Gazette notification of the Parliamentary election results of 7th December 2024 on 24th December, 2024, there could not be a second gazette of the same parliamentary results on 6th January 2025...there cannot be a Re-gazetting of the same results as that will be unlawful and in violation of P.N.D.C.L 284, which regulates Parliamentary Elections"[24].
His Lordship concluded that "on the whole, I am of the view that the application for Judicial Review in the nature of Certiorari is unanswerable and must be granted and accordingly same is granted"[25].
DISSENTING OPINION – PWAMANG JSC
Pwamang JSC, presiding, dissented from the majority, holding instead that "…the applicant is not without remedy in that he has filed an appeal which will afford him an opportunity to overturn the findings that he did not win the vote on the merits if indeed he won the election"[26], and that "what the applicant is urging on the court are technicalities and slavish application of the statute but the statute was never intended to trap and exclude persons with genuine grievances, especially after those grievances have been found by a superior court to have real merit"[27].
His Lordship held further that "the … authorities require us to consider certiorari applications from a broader perspective of the circumstances of each case and we may refuse it even if the grounds for its grant are made out... there was no question of wrong time of filing of the second petition raised from the start of the case to finish. The court ought not to close its eyes to the silence of the EC in particular"[28].
Accordingly, His Lordship held that "it is for the above reasons that I hereby exercise my discretion and refuse the application for certiorari and advise the applicant to pursue his appeal if he seeks a remedy"[29].
CRITIQUE OF THE SUPREME COURT’S DECISION
The Majority's Failure to Reconcile the Twenty-One-Day Bar with Article 99(2) of the 1992 Constitution.
The majority decision of the Supreme Court, in treating the twenty-one-day limitation period as a jurisdictional bar capable of ousting the High Court's constitutionally-granted jurisdiction under Article 99(1), failed to have regard to Article 99(2) of the 1992 Constitution, which contemplates that a person aggrieved by the determination of the High Court under that article may appeal to the Court of Appeal.
Article 99(1)(a) of the 1992 Constitution of Ghana provides in mandatory and unconditional terms that: "The High Court shall have jurisdiction to hear and determine any question whether — (a) a person has been validly elected as a member of Parliament..."
This is a constitutionally entrenched, mandatory grant of jurisdiction to the High Court. It is not a discretionary power. The word "shall" imposes an obligation on the High Court to assume jurisdiction over valid parliamentary election petitions. The constitutional provision does not admit of any limitation or condition.
The critical constitutional question which the majority did not resolve is whether Section 18(1) of PNDCL 284, being a legislation enacted under a military government can legally restrict, limit, or oust this constitutionally conferred jurisdiction on the High Court.
It is submitted that the 1992 Constitution is supreme law as stipulated in Article 1(2) the 1992 Constitution thus, "This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void."
The majority applied the twenty-one day limitation period as though it were an absolute and unchallengeable jurisdictional bar on the High Court.
In spite of the above the Supreme Court has acknowledged the complex interplay between constitutional jurisdiction and statutory limitation in the Republic v. High Court, Koforidua; Ex parte Dr. Kofi Asare; Baba Jamal Mohammed Ahmed[30] wherein the Supreme Court confirmed the exclusive constitutional jurisdiction of the High Court under Article 99 of the 1992 Constitution to determine parliamentary election disputes, but did not resolve the issue of whether statutory limitation can oust the constitutionallygranted jurisdiction of the High Court over parliamentary election petitions.
Again, in the case of the NPP v. Electoral Commission; Amoo v. Electoral Commission[31] the court recognised that the constitutional framework for parliamentary elections must be read holistically.
It is contended that where the limitation period under PNDCL 284 is triggered by an ambiguous event created by the Electoral Commission (namely, the issuance of two Gazette Notices), and where the petitioner acted reasonably and in good faith in computing time from the Second Gazette Notice, the application of the limitation bar as an absolute jurisdictional ouster conflicts with:
- Article 1(2) of the 1992 Constitution — constitutional supremacy;
- Article 99(1)(a) of the 1992 Constitution — the mandatory grant of jurisdiction to the High Court;
- Article 17(1) of the 1992 Constitution — the right to equality before the law and equal protection;
- Article 19(1) of the 1992 Constitution — the right to a fair hearing, which encompasses access to a court.
The majority treated the twenty-one day filing period as an absolute jurisdictional condition. However, Ghanaian jurisprudence draws a distinction between:
Absolute jurisdictional conditions, where a court is entirely barred from entertaining a matter, regardless of circumstances; and
Procedural conditions, which a court may, in the exercise of equitable or constitutional discretion, treat flexibly where their strict application would occasion injustice.
The Supreme Court has previously exercised discretion in relation to procedural irregularities that affect jurisdictional timelines as in the case of Republic v. High Court, Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd — Interested Party)[32] wherein the Court confirmed that Order 81 Rule 1 of C.I. 47 vests the court with discretion to waive non-compliance with procedural rules where the interests of justice demand it. The Supreme Court applied that discretion to prevent a petition from being declared a nullity.
In the case of In re Ayawaso Central Parliamentary Election: Ofei Agyemang v. Sheikh IC Quaye & Electoral Commission [2009] digested in the Election Manual: the court confirmed that the provisions of Section 18 of PNDCL 284 are clear but also acknowledged that surrounding circumstances must be examined in the exercise of judicial discretion.
The majority's failure to engage with this constitutional distinction, whether a statutory limitation period can constitute an absolute jurisdictional bar on constitutionally conferred jurisdiction is a fundamental error of constitutional law.
The Constitutional Supremacy Principle
The Supreme Court has consistently and emphatically affirmed the supremacy of the 1992 Constitution in a long line of cases.
In Mensima v Attorney-General[33], the court noted as follows, “Article 1(2) of the 1992 Constitution is the bulwark which not only fortifies the supremacy of the Constitution but also makes it impossible for any law or provision inconsistent with the Constitution to be given effect to… For article 1(2) contains a built-in repealing mechanism which automatically comes into play whenever it is found that a law is inconsistent with the Constitution.”
In New Patriotic Party v Attorney-General (31st December Case)[34]Amua-Sekyi JSC in supporting the majority decision of the court noted as follows "As the fundamental or basic law the Constitution, 1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.”
In the case of NPP v. Attorney-General (CIBA Case) [1997-98] SCGLR 729 the Supreme Court affirmed that any law inconsistent with the Constitution is void to the extent of the inconsistency.
The application of a statutory limitation to extinguish constitutionally guaranteed jurisdiction must be carefully scrutinized.
The majority's uncritical application of the twenty-one day limitation period as an absolute jurisdictional bar without engaging with the constitutional supremacy argument has occasioned a fundamental miscarriage of constitutional justice.
Deprivation of a Hearing on the Merits of Established Electoral Irregularities
The majority decision deprived the applicant and the people of Kpandai of a determination on the merits of documented electoral irregularities and inconsistencies contained in Form 8A, in respect of forty-one of the one hundred and fifty-two polling stations - irregularities which the trial court, after a full hearing of evidence from all parties, had already found to have affected the entire parliamentary election. Those factual findings remain on the judicial record and have never been contested or contradicted on their merits by any appellate court.
Attributing the Electoral Commission's Ambiguous Conduct to the Petitioner
The Principle of Legitimate Expectation
The doctrine of legitimate expectation is firmly established in Ghana's administrative and constitutional law. It provides that where a public authority makes a representation, whether by act, conduct, or publication upon which a person acts in good faith, that person is entitled to the benefit of that representation, and a court or authority cannot act contrary to it without affording the person an opportunity to be heard and without adequate justification.
In the Republic v. Interim National Electoral Commission; Ex parte Aggrey-Fynn[35] the Supreme Court recognized that the Electoral Commission, as a constitutional body, is held to its acts and representations, and that parties dealing with the Commission are entitled to act in good faith reliance on those representations.
The 2nd Interested Party, (Electoral Commission) is the constitutionally-mandated authority responsible for gazetting election results under Article 45(c) of the 1992 Constitution and Section 18(1) of PNDCL 284.
The 2nd Interested Party issued the second Gazette Notice on 6th January 2025. By issuing this notice in relation to the Kpandai results, the 2nd Interested Party created a legitimate expectation in the Applicant (and the public) that the second Gazette Notice was the operative notice for the purpose of computing the twenty-one day period.
The 2nd Interested Party itself confirmed before the Supreme Court that gazette notices were issued in batches, acknowledging both publications. The 2nd Interested Party did not at any stage rebuke the Applicant that the second Gazette Notice was legally inoperative or that the First Gazette Notice was the sole operative notice.
Relying upon the Second Gazette Notice, the Applicant filed his petition on 25th January 2025 within twenty-one days of 6th January 2025. In these circumstances, to hold that the Applicant's petition was out of time when the very time bar was generated by the 2nd Interested Party's own ambiguous administrative conduct is to attribute to the Applicant the legal consequences of an error that was not of his making.
Penalizing a Party for a Third Party's Conduct
It is a foundational principle of justice that a party should not be penalized for the acts or omissions of a third party over whom he has no control, especially where those acts create the very legal obstacle being used against him.
The Applicant had no control over the Electoral Commission's decision to issue a Second Gazette Notice. He acted reasonably, diligently, and in good faith.
To visit upon him the jurisdictional consequences of the 2nd Interested Party's own administrative ambiguity and thereby permanently extinguish his constitutional right to a judicial determination on the merits of the parliamentary election petition is a patent miscarriage of justice.
The Precedential Danger of the Decision
The majority decision establishes the dangerous precedent that:
Electoral Commissions may issue multiple Gazette Notices in respect of the same election results, and that the courts will apply the first notice as the operative one for limitation purposes, regardless of the sequence of events or the conduct of the parties thereby creating a trap for election petitioners who rely in good faith on subsequent official notices.
A winning parliamentary candidate may strategically allow election petition proceedings to run their full course before the High Court consuming months of court time and resources and then challenge jurisdiction by certiorari in the Supreme Court after an unfavourable outcome, where he is not prejudiced by the proceedings.
Systematic electoral irregularities found by a court of competent jurisdiction may be permanently insulated from judicial scrutiny if the petition is even one day outside a limitation period triggered by an ambiguous administrative act.
These precedents would be deeply damaging to Ghana's electoral democracy, the rule of law, and the integrity of the judicial system.
The Democratic and Constitutional Dimension of Electoral Petitions
Parliamentary election petitions are not ordinary civil disputes. They concern the most fundamental democratic right of citizens: the right to be governed by representatives they have genuinely and freely elected, in proceedings conducted in accordance with the law.
In re Wulensi Constituency Parliamentary Election: Zakaria v. Nyimakan[36] the Supreme Court affirmed that the constitutional mandate of the High Court under Article 99(1) exists precisely to ensure that the people's electoral mandate is authentic and untainted by irregularities.
The decision, by resolving a matter of profound public interest on a threshold procedural point rather than on the substantive merits of the election dispute, sets a concerning precedent for electoral justice and constitutional democracy in the country.
CONCLUSION
This article has argued that the majority's construction of the twenty-one-day limitation period elevated procedural formalism over substantive justice. By treating the limitation period as an absolute jurisdictional bar, the Supreme Court foreclosed judicial scrutiny of the judicially acknowledged electoral irregularities affecting forty-one polling stations - irregularities which the High Court Tamale had found capable of altering the outcome of the parliamentary election.
The majority's reasoning also failed to give full effect to the constitutional framework established by Article 99 of the 1992 Constitution. By construing the limitation period as extinguishing the High Court's constitutionally conferred jurisdiction to hear and determine parliamentary election petitions, the Supreme Court paid insufficient regard to Article 99(2), which expressly affords a person dissatisfied with the determinations of the High Court to file an appeal at the Court of Appeal. Equally problematic was the Supreme Court’s decision to visit upon the 1st Respondent the consequences of the Electoral Commission's own ambiguous administrative conduct concerning the gazette notification, a conclusion difficult to reconcile with the constitutional values of fairness and legitimate expectation.
The implications of the decision extend well beyond the immediate parties. Election petitions are constitutional proceedings through which the courts safeguard the integrity of the electoral process and vindicate the sovereign will of the people. Where credible allegations of electoral irregularities are insulated from judicial determination by procedural uncertainty attributable to a public authority, public confidence in both the electoral process and the administration of justice is inevitably weakened.
Limitation periods are indispensable to orderly adjudication, but they are a means of administering justice, not an end in themselves. Where their rigid application prevents the courts from determining whether the expressed will of the electorate has been lawfully ascertained, procedure ceases to serve justice and instead frustrates it.
[1] Section 18(1) of the Representation of the People Law, 1992 (PNDCL 284) provides that "an election petition shall be presented within twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates, except that a petition questioning an election on an allegation of corrupt practice and specifically alleging a payment of money or other award to have been made by the person whose election is questioned or to have been made on his behalf to his knowledge, may be presented within twenty-one days after the date of the alleged payment."
[2] Page 16
[3] Page 15
[4] Page 18
[5] Page 19
[6] Page 20
[7] Page 20
[8] Page 26
[9] Page 29
[10] Page 30
[11] Page 32
[12] Page 35
[13] Pages 40-41
[14] Page 45
[15] Page 46
[16] Page 53
[17] Page 53
[18] Page 58
[19] Page 60
[20] Pages 62-63
[21] Pages 74-75
[22] Page 75
[23] Page 75
[24] Page 76
[25] Page 76
[26] Page 86
[27] Page 86
[28] Page 85
[29] Page 87
[30] [2009] SCGLR 460
[31] [1997-98] 1 GLR 938 at 939
[32] [2007-2008] SCGLR 1041
[33] [1996-97] SCGLR 676
[34] [1993-94] 2 GLR 35, S.C
[35] [2000] SCGLR 591
[36] [2003-2004] SCGLR 1