MANUAL AND STATUTES  ON ELECTIONS ADJUDICATING IN GHANA       

One Nyimakan was declared the elected member of parliament (MP) for the Wulensi constituency after the 2000 parliamentary election held on the 7 December 2000 throughout Ghana. The result was challenged by oneMr  Zakari, a registered voterin the constituency. He filed an election petition in the High Court Tamale under article 99(1) of the constitution 1992 seeking a declaration that the election of Mr Nyimakan was void because he was not qualified to be elected . The petition was granted by the High Court on 6 July 2001. The elected MP (herein called the appellant) appealed to the court of Appeal against the grant of the petition. The appeal was however dismissed on 12 April 2002. The appellant  further appealed on the on 16 April 2002 to the Supreme Court from the decision of the Court of Appeal. On 7 October 2002, Mr Zakaria, the registered voter, filed the instant application in the Supreme Court for an order to dismiss the appeal on the ground that the Supreme Court had no jurisdiction to hear and determine the appeal.

Held, granting the application for dismissal of the appeal from the Court of Appeal to the Supreme Court - Sophia Akuffo JSC dissenting: there was no right of further appeal from the Court of Appeal to the Supreme Court in respect of an appeal from an election petition determined by the High Court under article 99 (1) of the Constitution, 1992 because: (0 notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 137(1) of the Constitution, article 99(2) had expressly provided that a person aggrieved by the determination of an election petition by the High Court under article 99 (1), might appeal to the Court of Appeal. That provision had the effect of taking it, ie such an appeal out of article 13 1 (1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court; (ii) when a remedy had been given by the Constitution and a forum had also been given by either the Constitution itself or statute fur ventilating a grievance, it was to that forum that a plaintiff might present his petition. In the instant case, the Constitution had, by article 99 provided only two courts for dealing with election petitions, namely, the High Court and the Court of Appeal. It was the framers of the Constitution, 1992 who, knowing that they were creating a new right chose an appeal procedure whifh ended at the Court of ,Appeal; and (iii) on application of the maxim, generalia specialibus non derogant (general words do not derogate from special), the special provision set out in article 99 (2), granting the right of appeal to the Court of Appeal from the determination of the High Court for an election petition under article 99 (1), should supersede the general appellate jurisdiction of the Supreme Court under article 131 (1) (a). Yeboah v J H Mensah [1998-99] SCGLR 492 followed.

Per T wum JSc. Admittedly, in a wider sense, it may be said that article 13 1 (1) (a) should give a further right of appeal to the appellant. But ... article 99(1) creates a special remedy and in that remedy, the appeal process ends at the Court of Appeal under article 99(2).

It is quite clear that the framers of the Constitution, 1992 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 the 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) supersedes the general appellate jurisdiction of the Supreme Court under article 13 1 (1) (a).

Per Sophia Akuffo JSC dissenting. Admittedly, this provision, ie article 99(2) makes no mention of a further appeal to the Supreme Court. However, ... given the language of article 131 (1) and (2) and the structure of the Constitution, 1992 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 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 (1) and (2).