THE REPUBLIC v. NANA OSEI KWADJO II

KPEGAH, J.S.C:

My Lords, I am not certain whether to describe this judgment as a valedictory judgment or not. However, since there may be a good possibility of it turning out to be so because I have to start listening to my body and the advice of my doctors after my spinal surgery. I have been advised that long hours of sitting is not advisable for a person who has the type of surgery that I had, and since this job is mainly sedentary, I have to start considering bowing out and find myself a more convenient way of life in the future. I will therefore be candid and frank in my views on a series of legal issues which I consider not only relevant to the appeal before us but also very critical to the development of our jurisprudence in the area of the protection of the fundamental rights of the individual as enshrined in chapter Five of our Constitution, 1992. Some of the legal issues I have in mind greatly informed my position in this case. And, since this might be the last time I may be sitting with my colleagues and speak from this court; that is to say, “EX-CHATHEDRA’, I cannot possibly suffer the judgment to be without my D.N.A. I will therefore be examining some of the decisions of the court which I have reservations about; especially those in which we have declined jurisdiction on grounds which appear to me to be too technical, or to be a clear case of misapprehension of the relevant law. The first of such cases is the case of: IN RE PARLIAMENTARY ELECTIONS FOR WULENSI CONSTITUENCY; ZAKARIA v NYIMAKAN [2003-2004] SCGLR 1.

The issue in this case before the Supreme Court was whether or not there is a right of appeal to the Supreme Court in respect of an election petition in the High Court as to whether a person has been validly elected as a member of Parliament. A person aggrieved by the decision of the High Court has a right of appeal to the Court of Appeal but the article which gives the right of appeal from the High Court to the Court of Appeal is silent on whether there is a further right of appeal from the decision of the Court of Appeal to the Supreme Court. In a 4:1 decision the Supreme Court held that no such right of appeal exists. This, in my humble view, is most regretable.

My reason for so saying will become apparent when I come to discuss the case vis-à-vis our jurisdiction as the final Court of the land. For the moment, however, I can say that I am in full agreement with the dissenting views expressed by my learned and respected Sister