The substantive case

Counsel for the applicant invoked articles under the 1992 constitution to support his argument and added that the Commission failed to comply with the Public Elections Regulations. He therefore sought remedies such as certiorari to quash the decisions made by the Commission in exercise of its statutory duty. Counsel for the Commission admitted that the EC has made an administrative error and they have demonstrated in Exhibit GIA5 how the mistake was made. However, since the results of the elections have been published, only the law and not the Commission can make the correction. Counsel argued that certiorari was the wrong remedy. Mr Cudjoe, Counsel for Mrs Adotey supported this view and added that certiorari applies only in three instances:

(a) Where there is a breach of natural justice (b) Where there is an error of law apparent in the face of records, and (c) Where there is excess or lack of jurisdiction.

Again several cases were cited by all parties with Counsel for the Respondents citing four main cases: Ex Parte Fry [1954] All E R 118, Regina vrs Metropolitan Police Commissioner's Ex Parte Parker [1954] WLR 78, Buckoke vrs Greater London Council [1971] CH and R vrs Statutory Visitors to St. Lawrence Hospital Ex Parte Pritchard [1953] All E R 766.

Judge Dordzie said at page 21, "I have examined all these cases in detail and have found their ratio decidendi to be completely different from the case in issue. ... The English Courts at that time held that the bodies were not acting in a judicial or quasi-judicial capacity so certiorari will not lie" She cited several cases and text books from both Ghana and England to support her view and remarked at page 25 "A new era has dawn and it is clear from the current judicial decisions and text cases as well as the provisions of the 1992 Constitution that apart from inferior Courts and bodies or persons acting judicially, judicial review remedies in the form of certiorari, mandamus and prohibition will lie against Administrative bodies and officials. In particular, she referred to Lord Diplock's quotation in Council of Civil Service [1985] A C 374 at page 140: "Judicial review has I think developed to a stage today when ... one can conveniently classify under three headings the grounds upon which administrative action is subject to control by judicial review. The first ground I call "illegality", the second "irrationality" and the third "procedural impropriety". She went on to add that the scope of certiorari had broadened ever since the cases counsel relied on were decided. These decisions are no longer the law. Supporting her inference that "a new era has dawn", Justice Dordzie submitted that in Ghana decisions appear to have followed previous English decisions which held the view that judicial review remedies by way of the prerogative writs could only be sought when there is a breach of the three rules enumerated by Counsel for Mrs Adotey. But the developments in these prerogative remedies prompted the late Justice Cecelia Koranteng Addow in the case of Republic vrs Minister for Interior, Ex-Parte Bombelli [1984] GLR 204 at page 211 to break new grounds in this area of the law when she stated: "In the exercise of statutory power directly affecting the interest of individuals it is nearly always reviewable at the instance of the persons having appropriate locus standi". She concluded her ruling by finding on all fours with the application, the view of Lord Denning, Master of the Rolls, in the celebrated Peachey Property case (R vrs Paddington Valuation Officer and Another Ex Parte Peachey Property Corporation Ltd (1965) 2 All E R 836]. At page 841-842 the Master of the Rolls said, "...The first respondent is a public officer entrusted with a duty. He has legal authority or power to determine questions affecting the rights of subjects.... This power carries with it a duty to act "judicially" which means, I think, fairly and justly in accordance with the statute. If he declines or fails to carry out the duty, he is amenable to mandamus; and ... to be quashed on certiorari".