CASE BRIEF: In re Parliamentary Election for Wulensi Constituency; Zakaria v. Nyimakan

CITATION: [2003–2004] 1 SCGLR 1

Facts of the case:

In this case, following Ghana’s general elections on 7 December 2000, Fuseini Zakaria, a registered voter in the Wulensi Constituency, petitioned the High Court in Tamale to challenge the election of Samuel Nyimakan as Member of Parliament. Zakaria argued that Nyimakan was not qualified to be elected.

On 6 July 2001, the High Court upheld the petition and declared Nyimakan’s election void on the ground that he was not qualified at the time of the election. Nyimakan appealed to the Court of Appeal, which unanimously dismissed his appeal on 12 April 2002. He subsequently appealed to the Supreme Court.

Zakaria then applied to the Supreme Court to dismiss Nyimakan’s appeal, arguing that the Supreme Court lacked jurisdiction to entertain a further appeal in a parliamentary election petition.

Legal issue:

The principal issue was whether a party could appeal to the Supreme Court against a Court of Appeal decision in a parliamentary election petition, despite Article 99(2) of the 1992 Constitution providing for an appeal from the High Court to the Court of Appeal.

To the Decision of the Court:

The Supreme Court, by a majority, upheld Zakaria’s application and held that it had no jurisdiction to entertain a further appeal in the parliamentary election petition. The appeal process provided under Article 99(2) ended at the Court of Appeal. The Court applied the Latin maxim generalia specialibus non derogant, meaning that general provisions do not override specific provisions where they deal with the same subject matter.

The Court reasoned that Article 99 establishes a special constitutional procedure for challenging the validity of a parliamentary election. That specific procedure takes precedence over the general appellate provision in Article 131(1)(a). The Court also considered the principle that where the law creates a special remedy and provides a specific procedure for pursuing it, a party must follow that procedure.

Importantly, Justice Sophia A. B. Akuffo dissented from the majority decision.

How do you apply this principle?

This case established that in parliamentary election disputes, the Court of Appeal is the final and last appellate court.