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Review - Out
of time - Extension of time -
Vexatious litigation and Abuse
of process - Rule 79 - Supreme
Court Rules, 1996 (C.I.16) –
Whether one can apply to relist
same. If application was
withdrawn and was not dismissed
on merit
HEADNOTES
The ordinary
bench of this court gave
judgment against the applicant
in favour of the respondent. The
applicant sought a review but
was out of time, so he applied
for extension of time to do so.
He was granted leave by this
court presided over by a single
judge. He was granted ten days
from 26th June 2013,
the date of the order, in which
to file the application for
review. He filed the application
within time on July 5 2013. When
the application came up for
hearing before the review panel,
Counsel for the applicant
decided to withdraw it
apparently because it was filed
in disregard to the rules of
practice and procedure.
Thereafter the applicant took
some other steps to bring into
fruition his desire to have the
court’s judgment of 24th
May 2013 reviewed, but he failed
at each and every attempt made.
This is the third bite at the
cherry.
HELD
I have taken
into consideration the fact that
a review process is the ultimate
step which is open to a party to
seek redress from the Court;
thus unless there is no means
legally permissible to salvage
an application for review a
party should not be shut out
from court. I am equally mindful
of the hardship and
inconvenience the tardiness in
bringing the application will
cause the respondent. But I
think the respondent could be
compensated by way of costs. I
would accordingly grant the
application and restore the
application filed to the cause
list. The second relief to amend
is also granted. The applicant
will be allowed seven days to
effect the amendment. The
applicant is ordered to pay
costs of GH¢5,000.00 to the
respondent.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules, 1996 (C.I.16)
CASES
REFERRED TO IN JUDGMENT
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BENIN, JSC
COUNSEL
BRIGHT
AKWETEY ESQ. PLAINTIFF/APPELLANT/APPLICANT.
BRIGETTA OSEI
OWUSU ESQ.WITH HER OBENG SEKYI
FOR THE DEFENDANT
/RESPONDENT/RESPONDENT.
__________________________________________________________________
RULING
__________________________________________________________________
BENIN, JSC:-
On 24th
May 2013 the ordinary bench of
this court gave judgment against
the
plaintiff/appellant/applicant
hereinafter called the applicant
in favour of the
defendant/respondent/respondent
hereinafter called the
respondent. The applicant sought
a review but was out of time, so
he applied for extension of time
to do so. He was granted leave
by this court presided over by a
single judge, Akamba JSC. He was
granted ten days from 26th
June 2013, the date of the
order, in which to file the
application for review. He filed
the application within time on
July 5 2013. When the
application came up for hearing
before the review panel, Counsel
for the applicant decided to
withdraw it apparently because
it was filed in disregard to the
rules of practice and procedure
in the sense that no reference
was made therein to the Judge
who had made the order and the
date thereof. The court
accordingly struck it out as
withdrawn.
Thereafter
the applicant took some other
steps to bring into fruition his
desire to have the court’s
judgment of 24th May
2013 reviewed, but he failed at
each and every attempt made.
This is the third bite at the
cherry. One wonders whether the
applicant does not know what he
is doing for the impression is
that he is just gambling around
the rules in the hope that one
will be favourable to him. One
should not lose sight of the
fact that the principles against
vexatious litigation and abuse
of process should equally apply
to applications to the court
especially when the object
sought by them is the same, as
in this case. Nonetheless in the
interest of justice I have
decided to consider the
application on its merits.
By the
present application filed on 29th
August 2014, the applicant is
asking for two reliefs from this
court, viz: (i) for an order to
relist the application for
review filed on 5th
July 2013, and (ii) for leave to
amend the said application.
Counsel’s argument was simply
that the application was
withdrawn and was not dismissed
on merit so they could apply to
relist same. On the other hand
counsel for the respondent cited
rule 79 of the Supreme Court
Rules, 1996 (C.I.16) and
submitted that the applicant was
barred from coming back since
the court did not waive the
irregularity in the application
when it struck it out.
Rule 79 of
C.I.16 provides:
Where a party
to any proceedings before the
court fails to comply with any
provision of these Rules or with
the terms of any order or
direction given or with any rule
of practice or procedure
directed or determined by the
Court, the failure to comply
shall be a bar to further
prosecution of proceedings
unless the Court considers that
the non-compliance should be
waived.
Under this
provision the Court could decide
to dismiss an application for
non- compliance with the terms
of its order, or it could
disregard the non-compliance and
admit the application, or
postpone it and allow the
applicant to comply with it. In
this case the applicant decided
to withdraw and the court
allowed him. The Court at this
stage could have barred him from
further prosecution of the
application but it did not; it
only struck it out. When an
application is struck out
unconditionally it leaves the
party with liberty to come back.
Thus the application which was
struck out could be revived upon
appropriate steps being taken.
I have taken
into consideration the fact that
a review process is the ultimate
step which is open to a party to
seek redress from the Court;
thus unless there is no means
legally permissible to salvage
an application for review a
party should not be shut out
from court. I am equally mindful
of the hardship and
inconvenience the tardiness in
bringing the application will
cause the respondent. But I
think the respondent could be
compensated by way of costs. I
would accordingly grant the
application and restore the
application filed to the cause
list. The second relief to amend
is also granted. The applicant
will be allowed seven days to
effect the amendment. The
applicant is ordered to pay
costs of GH¢5,000.00 to the
respondent.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
BRIGHT
AKWETEY ESQ. PLAINTIFF/APPELLANT/APPLICANT.
BRIGETTA OSEI
OWUSU ESQ.WITH HER OBENG SEKYI
FOR THE DEFENDANT
/RESPONDENT/RESPONDENT. |
