ZAKARIA v. NYIMAKAN

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 n