JELR 68330 (SC) 1

CHECK FOR UPDATES

[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

IN THE MATTER OF ARTICLE 99 OF THE 1992 CONSTITUTION OF

GHANA AND IN THE MATTER OF THE REPRESENTATION OF THE
PEOPLE LAW, 1992 (PNDCL 284) AND IN THE MATTER OF A
PARLIAMENTARY ELECTION FOR WULENSI CONSTITUENCY
HELD ON 7TH DECEMBER, 2000
(2003) JELR 68330 (SC)

SUPREME COURT · SUIT NO. CM 73/2003 · JAN. 15, 2003 · GHANA

CORAM

WIREDU C.J. (PRESIDING), ACQUAH J.S.C., AKUFFO (MS) J.S.C., AFREH J.S.C, DR.
TWUM J.S.C.

DR. S. TWUM, J.S.C.: On 7th December 2000, general elections were held in the country.

After the results were declared, Mr Fuseini Zakaria, a registered voter in the Wulensi constituency,
(hereinafter referred to as “the Respondent”) filed a petition under article 99 of the 1992
Constitution of Ghana and the Representation of the People Law 1992 (PNDCL 284) in the High
Court, Tamale, praying for a declaration that the election of the Appellant, Mr Samuel Nyimakan,
was void as he was not qualified to be so elected as a Member of Parliament for the Wulensi
constituency.

After a full trial at which evidence, both oral and documentary was taken, the High Court, presided
over by Aninakwa, J. (as he then was) delivered its judgment on 6th July, 2001, upholding the
petition. The court held that the Appellant was not qualified at the time of the election, to be elected
a Member of Parliament for the Wulensi constituency. Consequently his purported election was
void. The Appellant appealed against the judgment to the Court of Appeal on the same day that the

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High Court delivered its judgment. By a unanimous judgment the Court of Appeal dismissed the
appeal on 12th April, 2002. The Appellant filed yet another appeal to this court on 16th April 2002.

On 7th October 2002, the Respondent filed the present motion in this court praying that the appeal
be dismissed. The thrust of the motion is that this Court has no jurisdiction to hear and determine
the appeal.

The Respondent relied on three grounds in support of the motion. First, he submitted in his
Statement of Case that on a true and proper interpretation of those articles of the Constitution
governing the respective jurisdictions of the superior courts of judicature, where an appeal from the
High Court to the Court of Appeal is in respect of a matter which cannot be described as “a civil
cause or matter”, there can be no appeal as of right from the Court of Appeal judgment, decree or
order to the Supreme Court unless there are express provisions in the Constitution to that effect.

The second ground was based on the principle that where a statute creates a new right which
previously did not exist at common law and the statute provides a forum or machinery for protecting
that right, a person wishing to claim appropriate relief for an infringement of that right must resort to
the forum or the machinery set up by the statute. The Respondent’s third ground was predicated on
the maxim “generalia specialibus non derogant”.

On 5th December 2002, the Appellant filed an affidavit in opposition to the motion. Paragraphs 3, 4
and 5 of the affidavit encapsulated the Appellant’s answer to the motion and we reproduce them
below.

“3. That I am advised by counsel and verily believe same to be true that the Application and
its accompanying statement is misconceived.”

“4. That the plain language of the Constitution, namely, Article 99 is clear, unambiguous and
admits of no construction or interpretation.”

“5. That the plain and ordinary meaning of the relevant provision of the Constitution which
spell out the appellate jurisdiction of the Supreme Court, namely article 131 (1) (a) equally is
clear and unambiguous and admits no over-elaborated construction.”

These three paragraphs were expanded in the rest of the affidavit in opposition. In our opinion, the
quintessence of the Appellant’s answer to the motion, gathered from that affidavit, was that the
Supreme Court has appellate jurisdiction to entertain the appeal.

Learned counsel for the Respondent set out articles 140 (1) and (2), 137 (1) and 131 (1) (a) of the
Constitution in his Statement of Case as the relevant articles for consideration. These articles
govern in part, the jurisdictions of the High Court, the Court of Appeal and the Supreme Court,
respectively.

Article 140

“(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all
matters, and in particular, in civil and criminal matters, and such original, appellate and other
jurisdiction as may be conferred on it by this Constitution or any other law” (emphasis
supplied)

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“(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and
Freedoms guaranteed by this Constitution.”

Article 137

“(1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine,
subject to the provisions of this Constitution, appeals from a judgment, decree or order of the
High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred
on it by this Constitution or any other law.”

Article 131

(1) “An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court:—

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been
brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in
the exercise of its original jurisdiction.”

Article 131 (2) provides that

“notwithstanding clause (1) of this article, the Supreme Court may entertain an application for
special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and
may grant leave accordingly.”

Arguing the first ground in the Statement of Case, counsel for the Respondent submitted that the
expression “in particular” coming so soon after the expression “all matters” shows that the general
jurisdiction of the High Court must of necessity include jurisdictions in respect of matters lying
outside its jurisdiction to deal with civil and criminal matters, otherwise the expression “in particular”
would be otiose. He categorised the matters which would be subsumed under those other
jurisdictions as “constitutional.” Learned Counsel related his interpretation to the facts of this motion
and submitted that “election petitions” are constitutional matters and consequently the Appellant
cannot proceed as of right to appeal from the Court of Appeal to the Supreme Court solely by virtue
of article 131(1)(a). At page 4 of the “Statement of Respondent-Applicant’s case for Dismissal of
Appeal Herein” filed on 19th November 2002, learned counsel for the Respondent summed up his
reasons for that proposition as follows: “it should be observed that it is only judgments in respect of
matters which fall within the category of “civil or criminal matters “and which originate at the High
Court that the jurisdiction exists” There is a serious flaw in that submission. A look at the
Constitution shows that different conditions define and delimit the respective jurisdictions of the
High Court and the Supreme Court. In article 131(1)(a) the litmus test for deciding the jurisdiction of
the Supreme Court is whether the High Court proceeding or action which has reached the
Supreme Court was a “civil cause or matter” The jurisdiction of the High Court as stated in article
140(1) covers all matters and it is irrelevant that for emphasis the Constitution seems to have
divided that jurisdiction into the “particular” (ie civil and criminal matters) and the “residual” (ie what
is left of the article 140 (1) jurisdiction). Learned counsel for the Respondent described what we
have called the “residual” jurisdiction as “constitutional”. In our view to describe it as “constitutional”
is to indulge in what Professor A. L. Hart stigmatised as “a definitional stop” The nature of that
jurisdiction is really part of what this court is expected to decide. Unless counsel for the Respondent
is suggesting that “all matters civil and criminal” is equivalent to “civil or criminal causes or matters”
then there can be no doubt that the appellate jurisdiction of the Supreme Court will not cover all

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actions, suits or proceedings within the entire spectrum of the High Court jurisdiction. The truth is
that it is not a requirement of the article 131(1)(a) appellate jurisdiction of the Supreme Court that
the civil cause or matter which was agitated in the High Court and which has ultimately been
appealed to the Supreme Court, must have been within only the “particular” or only the “residual”
jurisdiction of the High Court. Even if learned counsel for the Respondent is right in classifying the
“residual” jurisdiction of the High Court as “constitutional” he has not adequately explained why
those actions, suits or proceedings which would be within that jurisdiction should be excluded from
the appellate jurisdiction of the Supreme Court under article 131(1)(a). In short, a “civil cause or
matter” could arise out of any part of the jurisdiction of the High Court.

At the risk of repetition, it is to be noted that even though the judiciary as a whole has jurisdiction in
all matters, it is only the High Court that has, subject to the Constitution, jurisdiction in all matters.
The jurisdiction of the Supreme Court, which is the final court of appeal, is equally not all-
embracing, if one considers the provisions of article 131 (1) (a), carefully. Instead of the “all matters
and in particular civil and criminal matters” found in article 140 (1), the words used in Article 131 (1)
(a) are “civil or criminal cause or matter.” “Civil or criminal cause or matter”, is clearly different from
“Civil and criminal matters”. As Sowah J.S.C. put it in Amoako Tuffour v. Attorney-General (1980)
GLR 637, at 648 “we must take congnizance of the age-old fundamental principle of constitutional
construction which gives effect to the intent of the framers of this organic law. Every word has an
effect. Every part must be given effect”

It is trite law that all appellate jurisdiction must be conferred expressly by statute. Where the
Constitution provides for appellate jurisdiction in the Supreme Court as of right in a “civil cause or
matter” in respect of which an appeal has been brought to the Court of Appeal from a judgment of
the High Court, it is in essence the type of action, suit or other proceeding and not the court whence
the suit commenced that gives the Supreme Court jurisdiction.

What is the meaning of the expression “cause or matter?” and how does it differ from “civil and
criminal matters.”? “Civil” and criminal” are the two broad categories into which matters that go to
court may be classified. In this context “civil” is the opposite of “criminal.” The expression “cause or
matter” is a term of art. The words have acquired a technical meaning and must be interpreted as
such. Order 1, rule 1 of the High Court (Civil Procedure) Rules 1954 (LN 140 A) defines the word
“matter” as including “every proceeding in court not in a cause.” The word “cause” is defined as
including “any action, suit or other original proceeding between plaintiff and defendant.” If the two
definitions are read together, that is, if the definition of “cause” is substituted for it in the definition of
“matter”, “matter” would then be defined as “including every proceeding in court not in any action,
suit or other original proceeding between Plaintiff and defendant.”

Is there, then, any contentious matter before the court?. The answer is “Yes”. There is a disputation
regarding the status of the incumbent Member of Parliament for the Wulensi Constituency. The
Respondent was not one of the contestants in the elections. He was a registered voter. He was not
claiming any relief for himself. The basis of his petition was not a private wrong but a wrong
allegedly suffered by the electorate of the Wulensi Constituency as a polity. The Respondent was
asserting a direct and substantial interest in maintaining the effectiveness of the votes cast in the
constituency during the elections so as to uphold the integrity of the Constitution and other electoral
laws of Ghana. The Respondent’s interest in the petition was a constitutional right exercisable by all
electorates of the Wulensi Constituency.

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The Respondent’s petition was therefore a proceeding in Court but not in a cause. The petition was
a proceeding asking for a construction or interpretation of the Constitution. In such a proceeding,
there would be neither a defendant nor a plaintiff so-called as the terms are commonly employed in
ordinary proceedings in our courts. Such proceedings are “matters” within the definition of order 1
rule 1. In Vandepuije v. Akwei (1971) 1GLR 242 @ 245, Hayfron-Benjamin J. pointed out that the
word “matter” is used to denote proceedings under the prerogative writs, grants of probate and
letters of administration and such other proceedings as are usually entitled: “In the matter
of..........................”. Needles to say, the Respondent’s petition was righty entitled. “In matter of
Article 99 of the 1992 Constitution, etc.” In Moore v. Kennard 10 Q.B.D. 290, the Court held that an
election petition was a “cause or matter”. Again in Re Credit Co. 11 Ch. D. 250, it was held that a
winding-up petition was also a “cause or matter”. We hold that the Respondent’s petition was a
“cause or matter”.

In the light of the analysis above, can it seriously be argued, as learned Counsel for the
Respondent sought to do in his Statement of Case, that on a true and proper interpretation of
article 131(1)(a) the Supreme Court, which after all, has plenary responsibility for the enforcement
of the Constitution, is precluded from entertaining any appeal merely because the action that was
started in the High Court was in respect of a constitutional issue? In our opinion, that proposition is
untenable and we reject the Respondent’s first ground of the preliminary objection, accordingly.

The second matter which was canvassed by learned counsel for the Respondent was put thus:

“a perusal of the Constitution shows that whenever the constitution directly creates a right and
imposes an obligation, it goes further on to indicate or set up an organ or forum for its
enforcement........ The constitution sets up the parameters indicating the extent and limits of
the organ or forum. If the constitution makes use of an organ or forum it has already created,
it indicates to what extent it is using it or modifying it for use. It is never left for general
jurisdictions already set up to simply operate upon the rights or obligations so created or
imposed.”

In his “Judicial Review of Administrative Action”, 3rd edition p.316, the learned author, S.A. de
Smith, wrote:

“it is a general rule that where Parliament has created new rights and duties and by the same
enactment has appointed a specific tribunal or other body for their enforcement, recourse
must be had to that body alone.”

Professors H.W.R Wade and C.F. Forsyth in their “Administrative Law, 7th edition, explain the
principle at page 728. In their opinion, the principle covers situations where the right given by the
statute does not exist at common law. And as Lord Watson put it in Barraclough v. Brown (1897) AC
615 at 622, the right is given uno flatu and one cannot be dissociated from the other. (Uno flatu
translates as “with the same breath and the same intent”) Professor J. F. Garner has given the
reason behind the principle: “This is based not so much on the express terms of the statute, as on
the situation which Parliament must have intended to result as a consequence of an express
remedy being provided by the statute. (See Garner: “Administrative Law”, 3rd edition pages 159-
160).

Several decided cases illustrate the principle. Where a taxing statute gives a right of appeal to the

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Commissioner of Inland Revenue on a disputed assessment, the court will not grant a declaration
that the taxpayer is entitled to certain allowances; Argosam Finance Co Ltd v. Oxby (1965) Ch. 390;
or that he is not the owner of the property assessed. Re Vandervell (1971) AC 912. Similarly, where
a river authority is given statutory right to recover certain expenses in a magistrates’ court, it was
held that it could not obtain a declaration from the High Court that its claim is good. (Barraclough v.
Brown) (1897) AC 615. In Commissioner of Income Tax v. Fynhout (1974) 1 GLR, the Company
applied by certiorari to quash an assessment of tax on it arguing that it was not assessable to tax.
The High Court rejected the application but on an appeal to the Court of Appeal, that decision was
reversed. The Commissioner then applied to the Full Bench of the Court of Appeal to review the
decision of the Ordinary Bench. Allowing the review application, the Full Bench held that the
Ordinary Bench fell into grave error when they quashed the determination of the Commissioner. It
pointed out that once the assessment had been made the proper procedure for the Company to
challenge it was by raising an objection under paragraph 49 of the Income Tax Decree, 1966
(N.L.C.D.78). Since they had not availed themselves of that paragraph, the Commissioner was not
expected to make any further express finding. The court said it was only when that stage had been
reached that the Court of Appeal would have jurisdiction in the matter.

As Learned Counsel for Respondent pointed out, our Constitution is replete with examples where it
has created new rights not previously known to the common law and has provided special forums
and procedures for their enforcement. For example, Article 2(1) creates a right to have an
enactment or an act inconsistent with the Constitution set aside. The forum for its enforcement is
the Supreme Court and the procedure prescribed by the Supreme Court Rules, is a writ. Another
example is articles 33 of the Constitution. This is for the protection of the fundamental human rights
and freedoms guaranteed under the Constitution. This right did not exist at common law. We may
also mention the regime of judicial committees of the traditional councils for the adjudication of
causes or matters affecting chieftaincy under the Constitution. In the case of chieftaincy disputes
the law specifically gives exclusive jurisdiction to these judicial committees with ultimate appeal to
the Supreme Court under articles 273 - 275 of the Constitution and the Chieftaincy Act 1971 (Act
370).

Now let us consider in some detail the law governing election petitions.

Article 99 (1) gives jurisdiction to the High Court to hear and determine any question whether —

(a) “a person has been validly elected as a member of Parliament or the seat of a member
has become vacant”

Section 16 of the Representation of the People Law 1992, (PNDC Law 284) states:

“(1) the validity of an election petition to Parliament may be questioned only by a petition
brought under this part”

(2) Every election petition shall be presented before the High Court for hearing.

Section 18 (1) of the Law (PNDC Law 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” and section 18 (2) says “the presentation of an election petition under subsection
(1) shall not be valid unless within the time specified in subsection (1) the petitioner gives C20,000
as security for costs.” Finally section 26 (1) prescribes that the rules of procedure for presentation

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and hearing of a petition under this part shall be the same as the rules of procedure applicable to a
civil cause or matter before the High Court.

Appeals:

Article 99 (2) provides that “a person aggrieved by the determination of the High Court under this
article may appeal to the Court of Appeal”

There is no doubt that the procedures governing election petitions are substantially different from
the procedures governing ordinary causes or matters heard by the High Court. First, the limitation
period is only 21 days from the relevant date. The normal limitation period has a minimum of 3
years (personal injury claims) to 12 years (recovery of land). Secondly, under order 65 rules 5-7 of
the High Court (Civil Procedure) Rules 1954, (LN 140 A) security for costs will be ordered only on
an application by the defendant if the plaintiff who is ordinarily resident out of the jurisdiction, brings
an action in the High Court. It is only when the plaintiff defaults in giving security for costs within the
time prescribed that his action may be dismissed for want of prosecution. The final difference to be
noted is that notwithstanding the general appellate jurisdiction of the Court of Appeal stated in
article 137 (1) of the Constitution, article 99 (2) expressly provides that

“a person aggrieved by the determination of the High Court under this article may appeal to
the Court of Appeal.”

That clearly takes it out of the article 137(1) jurisdiction of the Court of Appeal in respect of appeals
to the Supreme Court.

In Yeboah v. J. H. Mensah (1998-99) SCGLR 492, the Plaintiff brought an action in the Supreme
Court invoking the court’s enforcement jurisdiction under articles 2 and 130 of the Constitution for a
declaration, inter alia, that under article 94(1)(b), the defendant was not qualified to be a Member of
Parliament. The defendant objected to the propriety of the action on the ground that the Plaintiff’s
action was, in substance and reality, an election petition determinable only by the High Court under
article 99 (1) (a) of the Constitution. The Supreme Court upheld the objection, holding that the
Plaintiff could not ignore the provisions of Article 99 (1) (a) of the Constitution which had provided a
specific remedy at the High Court for determining challenges to the validity of a person’s election to
Parliament. In his opinion stated at p 498 of the Report, Hayfron-Benjamin JSC added his weight to
the principle as follows: “when a remedy is given by the Constitution and a forum is given by either
the Constitution itself or statute for ventilating that grievance, then it is to that forum that the Plaintiff
may present his petition.”

The Appellant, in paragraphs 14 and 15 of his affidavit in opposition tried to meet the Respondent’s
argument when he deposed as follows:

14. “That it is submitted further that in this particular case both the facts and the
circumstances as well as the ratio in the Yeboah v. Mensah (1998-99) SCGLR 492 is not
applicable”.

15. “That an ouster of jurisdiction of the Supreme Court which is also by Article 129 (1) the
final court of appeal in order to be sustained must be precise, specific and definitive and not
to be construed or inferred”.

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The Respondents’ case is that the Constitution provides only two courts for dealing with election
petitions—the High Court and the Court of Appeal—by Article 99. In our opinion, the Yeboah v.
Mensah case (supra) illustrates the principle enunciated above and fits the facts of the
Respondent’s case. The Respondent says apart from these two courts, no other forum is
designated and the Appellant cannot seek to do otherwise. It is the Constitution that chose the
machinery. It is not a question of an ouster of the jurisdiction of the Supreme Court. It is the framers
of the Constitution, who knowing that they were creating a new right chose an appeal procedure
which ended at the Court of Appeal. There is a fallacy in the Appellant’s argument when he
suggests that he could appeal to the Supreme Court because under article 129 (1) the Supreme
Court is the final court of appeal. The word “final” in the context in which it is used in Article 129 (1)
simply means that where a party has properly appealed to the Supreme Court and that court has
given judgment there can be no further appeals. In our view the Appellant’s appeal to the Supreme
Court is caught by the principle and we uphold the Respondent’s second ground of preliminary
objection .

The final matter raised by the Respondent as we have stated earlier, is based on the maxim
“generalia specialibus non derogant” (general words do not derogate from special). This maxim
may be explained as follows:—

“Where there is a general enactment in a statute which if taken in its most comprehensive
sense, would over-ride a particular enactment in the same statute, the particular enactment
must be operative, and the general enactment must be taken to affect only the other parts of
the statute to which it may properly apply.” (See Halsbury’s Laws of England: 4th Edition Vol.
44 para 875 at page 534)

In Reg v. Ramasamy (1965) AC 26 the Privy Council was called upon to decide which of two
enactments, namely; the Criminal Procedure Code and the Evidence Ordinance of Ceylon should
be applied in criminal prosecutions. On the one hand there was the Evidence Ordinance which
contained precise and detailed codification of the rules that were intended to govern the admission
and rejection of evidence. Among them was section 27; which had always been regarded as
removing all objections to the statements that it deals with. On the other hand, there was the
criminal Procedure Code, not primarily concerned with rules of evidence at all but containing
regulations for the special procedure of investigation under chapter 12 and manifesting a clear
general intention, based on the peculiarities of the procedure, to keep material produced by it out of
the range of evidence to be used when a trial takes place. Applying the maxim, “generalia
specialibus non derogant” the Privy Council concluded that evidence falling within section 27 can
lawfully be given at a trial even though it would otherwise be excluded as a statement made in the
course of investigations under section 22.

The Appellant has argued that the plain and ordinary meaning of the said relevant provisions of the
Constitution which spelt out the appellate jurisdiction of the Supreme Court, namely article 131(1)
(a), equally is clear and unambiguous and admits of no over-elaborated construction”. With respect
to learned counsel for the Appellant, this way of stating the issue begs the question. The real
matter for decision is whether the special provision set out in article 99(2) for appealing against a
High Court determination under article 99(1) should give way to the general jurisdiction given to the
Supreme Court by article 131(1)(a). In our humble view, the matter is clearly covered by the above
cited maxim. Admittedly, in a wider sense, it may be said that Article 131(1)(a) should give a further

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right of appeal to the Appellant. But as we have pointed out above, article 99(1) creates a special
remedy and in that remedy the appeal process ends at the Court of Appeal—article 99 (2). It is
quite clear that the framers of the 1992 Constitution intentionally did that. It cannot be said that
when they wrote article 99 in the form we find it in the Constitution they were oblivious of the
general appellate jurisdiction of the Supreme Court. We are fortified in our view by a consideration
of article 33, dealing with fundamental human rights remedies. By article 33(3) a further right of
appeal is expressly enacted giving the Supreme Court jurisdiction. This gives the clearest indication
of the intention of the framers of the Constitution that they deliberately discriminated between
appeals against election petitions, and fundamental human rights’ appeals. In order that that clear
intention of the framers of the Constitution may not be aborted we are convinced that this is a
proper case to apply the maxim “generalia specialibus non derogant”. We hold that the appeal
provision in article 99 (2) supercedes the general appellate jurisdiction of the Supreme Court in
article 131(1)(a).

We are aware of our ruling on ground one of the Respondent’s application. But it is precisely
because we accept that article 131(1)(a) confers appellate jurisdiction in constitutional matters on
the Supreme Court that it became necessary for us to decide which of the two rival appeal
procedures—i.e under article 99(2) or the general appellate jurisdiction of the Supreme Court in
article 131 (1) (a) should have priority in respect of election petitions. We have opted for article 99
(2).

In the result the motion succeeds. We hold that there is no right of further appeal from the Court of
Appeal to the Supreme Court. Consequently, we declare that this court has no jurisdiction to
adjudicate on the substantive appeal filed in this matter by the Appellant.

E.K. WIREDU

CHIEF JUSTICE

G.K. ACQUAH

JUSTICE OF THE SUPREME COURT

D. K. AFREH

JUSTICE OF THE SUPREME COURT

DR. SETH TWUM

JUSTICE OF THE SUPREME COURT

SOPHIA A.B. AKUFFO, JSC.: It has been my privilege to have prior access to the majority’s ruling
in this matter and I have given it the most thorough consideration. I agree that the expression ‘in
particular’ as used in Article 131(1)(a) of the Constitution is not intended to create a distinction
between matters arising from the civil and criminal jurisdiction of the High Court, on the one hand
and matters that arise from the High Court’s jurisdiction as may be conferred by the Constitution or
any other law (what the Applicant calls ‘the constitutional jurisdiction’ of the High Court).
Consequently, I wholeheartedly attach myself to the conclusion that the first ground of the
Applicant’s preliminary objection is untenable and must be rejected. Unfortunately, beyond this
point, I must with all due respect part company with my esteemed brothers.

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The facts of the case that gave rise to this Application have been adequately summarised in the
majority’s opinion and I will not attempt to repeat them here. The fundamental issue raised by the
preliminary objection is whether or not the Supreme Court has appellate jurisdiction in a matter that
originated as an election petition to the High Court. Consequently, since it is the appellate
jurisdiction of the Supreme Court that is being questioned, the first point of call we need to examine
is what the Constitution has to say in this regard. Article 131, spells out the appellate jurisdiction of
this court, in part, as follows:—

“(1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court –

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been
brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in
the exercise of its original jurisdiction; or

(b) with the leave of the Court of Appeal, in any other cause or matter, where the case was
commenced in a court lower than the High Court or Regional Tribunal and where the Court of
Appeal is satisfied that the case involves a substantial question of law or is in the public
interest.

“(2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application
for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and
may grant leave accordingly.” (my emphasis)

To my mind, the net effect of these provisions is that, where the Court of Appeal makes a judgment
in a civil cause or matter which originated in the High Court or Regional Tribunal in the exercise of
their respective original jurisdictions, a party may appeal against such a judgment as of right.
Otherwise, if the matter originated in a lower court, the Supreme Court will have appellate
jurisdiction only if the Court of Appeal has granted the appellant prior leave or the Supreme Court
has granted prior special leave. Therefore, since a Petition is a civil matter within the original
jurisdiction of the High Court, an appeal from a decision of the Court of Appeal lies as of right to
this Court.

The Applicant’s case, however, is that since Article 99(2) speaks only of appeal to the Court of
Appeal and does not, specifically, make provision for an appeal from a decision of the Court of
Appeal in matters arising out an election petition brought before the High Court, there can be no
appeal to the Supreme Court in such a case. In support of this position, counsel for Applicant, by
his Statement of Case, makes the following arguments:—

a. Throughout the Constitution, whenever a right or duty is conferred, the forum for its enforcement
is also specified and the scope and limits of such enforcement power is spelt out and it is never left
for the general jurisdictions already created by the Constitution to simply operate upon such rights
and duties.

b. Appellate power is a creature of statute and, therefore, unless the right of appeal to a court is
expressly conferred by statute, no such power may be assumed by any court, in this case, the
Supreme Court.

c. Pursuant to the maxim generalia specialibus non derogant, where, in the same statute, there is a
particular enactment and a general enactment, and the latter taken in its most comprehensive

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sense overrides the former, then the particular must be taken as the operative one and the general
must be taken as affecting only such other parts of the statute as it may properly apply.

The applicant cites the cases of Edusei v. Attorney-General (1996-97) SCGLR 1 (affirmed on
review in Edusei (No.2) v. Attorney-General (1998-99 SCGLR 753) and Yeboah v. Mensah (1998-
99) SCGLR 492 to bolster his arguments. In the first of these cases, which involved the
enforcement of the fundamental human rights of the plaintiff therein, this court in a majority
decision, held that:—

“the effect of articles 33(1), 130(1) and 140(2) ... was to vest in the High Court, as a court of
first instance, an exclusive jurisdiction in the enforcement of the fundamental human rights
and freedoms of the individual. The Supreme Court has only appellate jurisdiction in such
matters. It has no concurrent jurisdiction with the High Court in the enforcement of
fundamental human rights contained in chapter five ... of the Constitution.”

In article 33(1) and 140(2) the Constitution explicitly confers on the High Court the jurisdiction to
hear applications for the enforcement of the fundamental human rights and freedoms. Furthermore,
by article 130(1), the original jurisdiction of the Supreme Court is expressly made subject to the
High Court’s original jurisdiction, conferred by article 33, in matters involving the enforcement of
these rights and freedoms. In the absence of such express provisions, the Supreme Court, would
have had original jurisdiction pursuant to the provisions of article 2. Clearly, therefore, it is because
of these clear provisions that the majority reached the conclusion it did in this case, which
conclusion was affirmed on review.

I n Yeboah v. Mensah, where the court found that, although, by his writ, the plaintiff purported to
invoke its enforcement and original jurisdictions under articles 2 and 130, the action was,
effectively, an election petition and, hence, governed by article 99(1)(a), it held that:—

“the High Court, and not the Supreme Court, was the proper forum under article 99(1)(a) of
the Constitution and Part IV of PNDCL 284 for determining the plaintiff’s action .... The plaintiff
should therefore not ignore the provisions of article 99(1)(a) of the 1992 Constitution, which
had provided for a specific remedy at the High Court for determining challenges to the validity
of a person’s election to Parliament, and resort to the enforcement jurisdiction of the Supreme
Court under articles 2(1) and 130(1) of the Constitution.”

In delivering his opinion in the matter, the learned Charles Hayfron-Benjamin, JSC stated, inter alia,
as follows:—

“... when a remedy is given by the Constitution and a forum is given either by the Constitution
itself or statute for ventilating that grievance, then, it is to that forum that the plaintiff may
present his petition”

Unless I have entirely misapprehended the import of these decisions and the rationales thereof, the
outcomes of these cases hinged on the express provisions of the applicable articles, which clearly
vested original jurisdiction in matters involving the enforcement of the fundamental human rights
and freedoms, and challenges to the validity of a person’s election to Parliament, in the High Court.
In my view, therefore, the decisions in these cases are not quite relevant to the current matter,
which involves article 99(2). Admittedly, this provision makes no mention of a further appeal to the
Supreme Court, however, it is my opinion that, given the language of article 131 and the structure

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of the Constitution, there was no need to do so and the mere fact that no such mention is
specifically made in article 99 cannot justify a conclusion that an appeal cannot not lie from a
decision of the Court of Appeal in such matters.

I am fortified in this view by the fact that, when the Constitution intends to limit the right of appeal to
the Court of Appeal alone, it does so specifically, as in article 48 where it is stated thus:—

“(1) A person aggrieved by a decision of the Electoral Commission in respect of a

demarcation of a boundary, may appeal to a tribunal consisting of three persons appointed by
the Chief Justice; and the Electoral Commission shall give effect to the decision of the
tribunal.

(2) A person aggrieved by a decision of the tribunal referred to in clause (1) of this article may
appeal to the Court of Appeal whose decision on the matter shall be final.”

(my emphasis)

There is no such finality clause in article 99(2) because none was intended.

In the Applicant’s statement of claim, he supported his assertions to the contrary with the argument
that the reason for limiting appeals in parliamentary election petitions to the Court of Appeal is to
save time and assure that a person who may be, indeed, unlawfully elected does not remain in
parliament for any undue length of time. I am not convinced by such an argument. An election
petition raises a question of the proper and lawful representation of the people, a crucial and
fundamental factor in constitutionalism and democratic governance. Consequently, if, in the name of
timesaving or for any other reason whatsoever, it were the intention of the Constitution (despite the
clear language of article 131) to eliminate the input of the highest court in the land in such a vital
matter it would have done so in clear terms and in so many words.

That there was no such intention may, also, be gleaned from the fact that, other than a stipulation
of the time within which an election petition may be brought before the High Court, Part IV of the
Representation of the People Law, 1992 (PNDCL 284) does not spell out any special time limit for
appealing to the Court of Appeal from a decision of the High Court in such a matter. Furthermore,
the Court of Appeal Rules, 1997 (C.I.19), as amended by C.I.21, contain no special provisions or
procedures for the disposal of appeals from the High Court in such matters with any special
despatch. Therefore, such an appeal would follow the normal course of civil appeals in the Court of
Appeal, unless special administrative arrangements are made to assure its speedy determination.
This is so because an election petition is nothing more than a civil proceeding. As such, therefore,
an appeal lies from a determination of the Court of Appeal in such a matter to the Supreme Court,
pursuant to article 131; and since it is a matter, which, under article 99, originates from the High
Court, such appeal is as of right and any concerns about undue delay (though justified in view of
the generally slow progress of cases through our courts) must be addressed by effective measures
to improve case management, rather than through the supply of words not clearly or by necessary
implication furnished by the Constitution.

It is for the foregoing reasons that, after deep reflection, I have dissented from the decision of my
learned brothers.

S.A.B. AKUFFO,

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JUSTICE OF THE SUPREME COURT

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APPEARANCES

MR. E. O. APPIAH WITH MR. E. K. MUSAH FOR THE RESPONDENT; MR. KWAKU BAAH
FOR THE APPELLANT.

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