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]DLSC2388

IN THE MATTER OF ARTICLE 99 OF THE 1992 CONSTITUTION OF GHANA AND IN THE MATTER... [2003]DLSC2388

Date	2003-01-15
Suit No.	SUIT NO. CM 73/2003
Citation No.	[2003]DLSC2388

WIREDU C.J. (PRESIDING)

ACQUAH J.S.C.

AKUFFO (MS) J.S.C.

AFREH J.S.C

DR. TWUM J.S.C.

MR. E. O. APPIAH WITH MR. E. K. MUSAH FOR THE RESPONDENT.

MR. KWAKU BAAH FOR THE APPELLANT.

[2003]DLSC2388
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													<main id="main" class="content" style="min-height: 60rem" >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<o:p></o:p>[SUPREME
COURT]<o:p></o:p>SUIT
NO. CM 73/2003<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15TH JANUARY, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
E. O. APPIAH WITH MR. E. K. MUSAH FOR THE RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MR.
KWAKU BAAH FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:&nbsp;
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

WIREDU,
C.J.&nbsp; (PRESIDING), ACQUAH, J.S.C., AKUFFO
(MS), J.S.C., AFREH, J.S.C., DR. TWUM, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>RULING<o:p></o:p>DR.
S. TWUM, J.S.C.:<o:p></o:p>On
7th December 2000, general elections were held in the country.&nbsp; <o:p></o:p>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.<o:p></o:p>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.&nbsp; The Appellant filed yet another appeal to
this court on 16th April 2002.<o:p></o:p>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.&nbsp; <o:p></o:p>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.&nbsp;
<o:p></o:p>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”.<o:p></o:p>On
5th December 2002, the Appellant filed an affidavit in opposition to the
motion.&nbsp; Paragraphs 3, 4 and 5 of the
affidavit encapsulated the Appellant’s answer to the motion and we reproduce
them below.<o:p></o:p>“3. That I am advised by counsel and
verily believe same to be true that the Application and its accompanying
statement is misconceived.”<o:p></o:p>“4. That the plain language of the
Constitution, namely, Article 99 is clear, unambiguous and admits of no
construction or interpretation.”<o:p></o:p>“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.”<o:p></o:p>&nbsp;<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>Article
140<o:p></o:p>“(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)<o:p></o:p>“(2) The High Court shall have
jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by
this Constitution.”<o:p></o:p>Article
137<o:p></o:p>(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 ma</main>