such as Article 177(4) are therefore to be strictly construed,
22
an exercise which
logically and constitutionally ultimately falls to this Court.
[29]
Without a doubt, where the Court of Appeal hears and determines ‘any question as
to the validity of an election of a President in so far as that question depends upon
the qualification of any person for election or the interpretation of this
Constitution’, there can be no appeal of that determination to this Court. The Court
of Appeal’s decision would then be final, unappealable to this Court. That finality,
we would add, is not in tension with either the High Court’s or this Court’s
jurisdiction.
[30]
But, it must be stressed, it would be an entirely different matter if no question as to
the validity of an election of a President was before the Court of Appeal, or, if a
question as to the validity of an election of a President was before that court, that
question did not depend upon the qualification of any person for election or upon
interpretation of the Constitution. In either case, the Court of Appeal would be in
error in assuming jurisdiction to hear and determine that question.
Its
determination in that regard could not then be said to have been made “under”
Article 177(4) and that Article’s finality clause would therefore be inoperable.
[31]
Worse, the Court of Appeal would likely then be trespassing on the exclusive
jurisdiction of the High Court set out at Article 163 of the Constitution.23 It would
also, potentially, be infringing on the jurisdiction of this Court which is entitled
ultimately to hear appeals from proceedings that begin in the High Court and which
properly fall under Article 163. In short, the Court of Appeal would be acting in
such instances in a manner that is contrary to the clause in the Constitution24 that
declares its supremacy.
22
See for example, R v Hughes [2002] UKPC 12, (2001) 60 WIR 156 [35] (Lord Rodger); AG v Joseph [2006] CCJ 3 (AJ), (2006) 69
WIR 104 [8] – [12] (Pollard JCCJ) and [2] – [7] (Bernard JCCJ) ; Thomas v Attorney-General (1981) 32 WIR 375, 393 - 394; HMB
Holdings Ltd v Cabinet of Antigua and Barbuda [2007] UKPC 37, (2007) 70 WIR 130 [30]; Lee v Ashers Baking Co Ltd [2018] UKSC
49, [2020] AC 413 [88].
23
Article 163 is referred to in greater detail at [40] below and is set out fully in the Appendix
24
Constitution (n 1), art 8.