CONCLUSION In modern times the courts do not apply or enforce the words of statutes but their objects purposes and spirit or core values. Our constitution incorporates its spirit as shown for example, in article 17(4) (d). This means that it should not be applied to satisfy its letter where its spirit dissents from such an application. Thus in Black v Value Capital Ltd.(1975) 1 WLR 6 Goulding J held as stated in headnote 2 thus: “That although he plaintiffs‟ proposed amendments could technically be brought under paragraph (f) or (i) and (j) of Order 11, r.1(1), they should not be allowed since to do so would be an application of the letter but not of the spirit of the rule, in that it would allow the trial in England of a dispute between foreigners merely because it concerned money in the hands of English bankers whose only interest therein was their proper bank charges, or because the agreements were expressed to have been executed in London, although the disputant companies were neither incorporated, resident nor trading in England, and the agreements were expressly to be governed by and enforced in accordance with Bahamian law (post, pp. 15G-16A); that in all the circumstances the only court that could effectively exercise jurisdiction was the Bahamian court which could act in personam against PRL and VCL and compel the use of their names and seals, and which was already seised of the winding up petitions, and leave to amend would therefore be refused (post, p. 16D-F)” The Mischief rule of construction is much the same as the spirit of a statute. In Catherine v Akufo-Addo (1984-86) 1 GLR 96 C.A at 104 Mensa Boison J.A in delivering the judgment of the Court of Appeal said: “It is a sound rule, where the words admit, that an enactment should be construed such that the mischief it seeks to cure is remedied, but no more.” Further allied is the rule of construction relating to absurdity, see Brown v Attorney-General (2010) SC GLR 183. It would indeed be absurd for the courts to hold as was done in Republic v Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame and Another [1978] 1 GLR 467 C.A (Full Bench) and do otherwise in this case. As stated in the headnote to that case: “Having been destooled by the Agona Ashanti Traditional Council, the Wiamoasehene appealed, and the National Liberation Council (N.L.C.) acting under Act 81, s.34 appointed a chieftaincy committee to inquire into the matter. The committee found the destoolment null and void and recommended that the appeal be allowed. The N.L.C. confirmed the findings by a notice in the Local Government Bulletin which also included the phrase “that the appeal be dismissed.” A corrective notice repeating the confirmation but using the phrase “That the appeal be allowed” was published in a subsequent Local Government Bulletin. This attempt at correction was challenged by certiorari proceedings on the grounds that when the second notice was published the N.L.C. was functus officio and had no right to effect corrections after the first publication; and even if it had such right, the party adversely affected should have been given an opportunity to challenge the correction. The High Court held that the N.L.C. was precluded from re-opening the matter and this decision was affirmed by the Court of Appeal. On an application for review by the full bench, Held, allowing he application: (1) on the facts, far from having a change of mind, the N.L.C. had from the outset been desirous of giving force to the decision of the chieftaincy committee. The deliberate and repeated use by the N.L.C. of the term “confirmed” made it clear that not only was the first publication contrary to the findings and recommendations of the chieftaincy committee, but also that an obvious mistake had occurred. The argument that a word once inscribed in print was beyond recall was contrary to good sense. Even the finality of res judicata permitted the correction of clerical mistakes by the contrivance of the “slip rule.”” (e.s) Indeed when the constitution itself or any statute commits an error this court rectifies it see Agyei Twum v Attorney-General Akwety (2005-2006) SC GLR 732 where a constitutional omission relating to the procedure for the removal of the Chief Justice was rectified by reading into the relevant provisions, the necessary addition. To sum up the result sought by the petitioners in this case would involve what Mackinnon J protested against in British Photomaton Trading Company, Limited v Henry Playfair, Limited (1933) 2 K.B 508 at 520 when he said: “this is a result against which one is inclined to struggle, because it tends to outrage both common sense and what is fair.” REFORMS This petition however has exposed the need for certain electoral reforms. I mention same of them. The Voters register must be compiled and made available to the parties as early as possible. A supplementary register may cater for late exigencies. The calibre of presiding officers must be greatly raised up. The pink sheet is too elaborate, a much simpler one to meet the pressures of the public, weariness and lateness of the day at the close of a poll etc. The carbon copying system has to be improved upon. The Biometric Device System must be streamlined to avoid breakdowns and the stress on the electorate involved in an adjournment of the poll. Invalidating wholesale votes for insignificant excess numbers is not the best application of the administrative principle of the proportionality test. The South African biometric system as judicially reviewed in The New National Party of South Africa v The Government of the Republic of South Africa, Case CCT 9/99 dated 13/4/1999 may be instructive. However it is judicially acknowledged that the Electoral Commission is the body mandated by the constitution to conduct Elections and Referenda in Ghana and their independence must be respected as required by article 46 of the constitution. Their subjection to judicial control under articles 295(8), 23 and 296 (a) and (b) must be operated within the well known principles of judicial review of administrative action. The case of Appiah v Attorney-General, supra therefore cautions that the reasonable exercise of a discretion by them in situations that may confront them ought not to be judicially impeded. K P M G I do not know how to express the gratitude of the judiciary and indeed of Ghana to KPMG for their unprecedented selfless and patriotic service so fully rendered this court with such professionalism and dedication. They are a rare species of Lover of Ghana and the cause of justice and democracy. We are also grateful to counsel for their industry. But in the end I am driven by the sheer justice of this case which hinges much on technicalities of the pink sheet, to dismiss the same subject to the useful electoral reforms it has exposed as necessary to enhance the transparency of the Electoral process of Ghana. (SGD) W. A. ATUGUBA JUSTICE OF THE SUPREME COURT
Posted on: Wed, 04 Sep 2013 12:34:15 +0000
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