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RULING
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 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)
“(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
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.
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 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 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”.
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 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.
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 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.
In 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 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,
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. E. O. Appiah with Mr. E. K.
Musah for the Respondent.
Mr. Kwaku Baah for the
Appellant. |
