nor the Court of Appeal is entitled to trespass on the exclusive jurisdiction of the
High Court in this regard. The Chairperson was also right to note that GECOM
lacks the legislative authority and the machinery to adjudicate those irregularities.
(b)
[42]
Interpreting Article 177
Article 177 of the Constitution addresses the deemed election46 of the President.
The President is deemed to have been elected because, in the electoral system, an
elector’s single ballot is really cast in favour of a list of candidates vying for seats
in the National Assembly. There is no separate election of a President, as there was
when the members of the National Assembly elected the President under the
Constitution that pre-dated the 1980 Constitution. Article 177(2)(b) simply states
that where there are multiple Presidential candidates, a person is ‘deemed to be
elected as President’ when ‘more votes are cast in favour of the list in which [that
person] is designated as Presidential candidate than in favour of any other list’. It
is this provision, and in particular the italicised words, that the Court of Appeal
majority, influenced by the terms of Order 60, ordered to mean ‘more valid votes
are cast’. The Court of Appeal majority erred in doing so for the following reasons.
[43]
Article 177(4) only affords jurisdiction to the Court of Appeal if the question raised
as to the validity of an election of a President depends upon the qualification of any
person for election or the interpretation of the Constitution. At [12] to [14] above
we set out Ms David’s complaints and the issues she placed before the Court of
Appeal. It is evident that the question(s) she placed before the Court of Appeal did
not depend on the qualification of any person for election or on the interpretation
of the Constitution. Ms David’s complaint was really about the impact of Order 60
and the conduct of GECOM, not about the interpretation of the Constitution. This
led the majority on the Court of Appeal to embark upon an exercise of interpreting
Order 60 and a consideration of the effect of that Order on the responsibilities of
GECOM. In neither instance was there any need or justification for an interpretation
of Article 177(2)(b) or any other Article of the Constitution. Article 177(2)(b) has
46
See Constitution (n 1), art 177(2)(a).