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DOTSE, JSC:-
This is a Ruling premised upon
an application at the instance
of the
Plaintiffs/Respondents/Respondents/Applicants,
hereafter referred to as the
Applicants praying for a review
of the unanimous judgment of the
ordinary bench of this Court
delivered on the 21st
day of June, 2017 which allowed
an appeal filed by the 1st
Defendants/Appellants/Appellants/Respondents
hereafter referred to as the
Respondents.
The application for review was
supported by a 52 paragraphed
affidavit, sworn to by Mr. Kwame
Pianim, who described himself as
the legal representative of the
Applicants herein.
The Respondents herein
vehemently opposed this
application for review and in
this respect a forty paragraphed
affidavit in opposition was
sworn to by Robertson Kpatsa
Esq., who described himself as
Head of Legal Department of the
Respondent Bank.
GROUNDS OF THE REVIEW
APPLICATION
This application for review has
been brought on the following
grounds:
i. The Judgment of the
ordinary bench of the Supreme
Court delivered on 21st
June, 2017 was given per
incuriam relevant case law and
statute law.
ii. The ordinary bench
of the Supreme Court misapplied
the facts and the ratio
decidendi in the case of
Naos Holdings v Ghana Commercial
Bank [2005-2006] SCGLR 407
and wrongfully declined to
exercise their power to amend
the Applicant’s writ, thereby
occasioning a gross miscarriage
of justice; and
iii. The demands of
justice make the exercise of the
court’s review jurisdiction
extremely necessary to avoid
irremediable harm to the
Applicant.
ARGUMENTS OF COUNSEL
Even though learned counsel for
the parties have all relied on
their affidavits and statements
of case filed, they were all
given some time to expatiate on
these processes and grounds by
oral submissions in court as
follows:-
BY COUNSEL FOR APPLICANTS
Learned counsel for the
Applicants, Nene Amegatcher in
his submission argued as
follows:-
1. That, the ordinary
bench of this Court in it’s
judgment held that the
Applicant, having failed to name
the foreign beneficiaries and
their resident addresses on
behalf of whom the action had
been mounted were in breach of
Order 2, r. 4 (2) of the High
Court, (Civil Procedure) Rules,
2004 (C.I. 47) and therefore
lacked capacity to even commence
the action.
Learned counsel however argued
that, under Order 4 r 13 of C.
I. 47 (already referred to
supra), the Applicants were
entitled to sue as “a
trustee” without the need to
join the beneficiaries of the
trust or estate and accordingly,
there was no need to also
endorse the names of and
addresses of such persons.
Learned counsel also referred to
the Court, a long line of cases
decided by this court in respect
of which this court applied
order 81 rules (1) and (2) of
C.I. 47 to rectify non
compliance with the rules of
court.
See cases of Hydrafoam
Estates (Gh) Limited v Owusu
(per Lawful Attorney) Okine and
others [2013-2014] 2 SCGLR 1117
and Ghana Ports and Harbours
Authority v Issoufou [1991] 1
GLR 500, just to mention
a few.
In further argument, learned
counsel for the Applicants
contended that, this Review
bench should apply Order 81 r
(1) and (2) and rectify the non
compliance in order to achieve
substantial justice in this
case.
It was the contention of learned
counsel that, not having raised
this issue of capacity in the
High Court and the Court of
Appeal, it was wrong for the
Respondents to have raised this
issue of capacity in the Supreme
Court to which they did not have
the opportunity to really
respond.
In this respect, learned counsel
argued that, in the capital
market it is difficult to
disclose all the beneficiaries
who may be about 500, 500,000 or
1,000,000 and even more. It is
because of this difficulty that
normally Trustees are appointed
to mount such cases as is
provided under Order 4 r. 13 of
C.I. 47.
Learned counsel contended
further that, the issues of non
compliance and lack of capacity
are two different matters that
deserve separate and distinct
considerations. In this respect,
learned counsel concluded this
aspect of his submissions that,
on the basis of the maxim
“generalia specialibus non
derogat” Order 2 r. 4 (2) is
incompatible with Order 4 r. 13
(1) which allows Trustees to
dispense with the endorsement of
the resident status and
addresses of the persons on
behalf of whom the trustee has
sued.
It is the view of
learned counsel that order 4 r.
13 which is a specific provision
dealing with beneficial interest
in trust property or an estate,
takes precedence over order 2 r.
4 (2) which is a more general
provision dealing with
plaintiffs who sue in a
representative capacity.
2. In respect of
arguments on the second ground
of this review application,
learned counsel argued that the
ordinary bench relied very
heavily on this court’s decision
in the case of Naos Holdings
Inc. v Ghana Commercial Bank
[2005-2006] SCGLR 407 which
according to the Applicants is
distinguishable from the instant
review application.
Learned counsel argued that, the
ordinary bench should have
applied Order 81 of C. I. 47 as
was used by the Supreme Court in
the case of Owusu Domena v
Amoah [2015-2016] 1 SCGLR 790.
3. Finally, in respect
of the third ground of this
review application, learned
counsel argued that this review
bench must ensure that
substantial justice is seen to
be done. This is because if the
ordinary bench decision is
allowed to stand, it will amount
to substantial miscarriage of
justice as the cause of action
arose in 2009 and the Applicants
would be deemed to be statute
barred.
It was further contended that,
the amount involved is huge, in
excess of USD60 million and
still counting. Learned counsel
therefore prayed the Court to
grant the review application.
BY COUNSEL FOR RESPONDENTS
COMPETENCE OF THE REVIEW
APPLICATION
Learned counsel for the
Respondents, Benson Nutsukpui
argued that, the application has
not passed the threshold of a
review application and therefore
urged the court not to consider
the merits of the application.
This is because all the matters
raised by the Applicants for the
review of the decision of the
ordinary bench had been
exhaustively dealt with by the
judgment of the court.
In that respect, learned counsel
for the Respondent argued that
the instant application is
nothing more than the Applicants
attempting a second bite of the
cherry which is tantamount to
unsuccessful litigants turning
this review jurisdiction into a
forum to re-argue their case.
Learned counsel also argued that
no exceptional circumstances
have been shown to exist in this
case and the reveiw application
must therefore be dismissed.
Counsel referred to the
unanimous decision of this court
in the case of Okudzeto
Ablakwa (No.3) and Another v
Attorney-General & Obetsebi
Lamptey (No.3) [2013-2014] 1
SCGLR 16.
On the merits of the case, the
arguments of substance of
learned counsel for the
Respondents will briefly be
summed up thus:-
1. Counsel argued that
there is no contradiction
between Order 4 rule 13 (1) and
Order 2 rule 4 (2) for the maxim
“generalia specialibus non
derogat” to apply in the
first place as it does not arise
at all. According to learned
counsel, order 4 r 13 (1) is
rather the general provision
referring to Trustees whilst
order 2 r 4 (2) makes specific
reference which is applicable in
terms to Trustees who sue on
behalf of persons not resident
in the jurisdiction. Learned
counsel contended that, non
compliance with requirements of
Order 2 r. 4 (2) cannot
therefore be waived.
2. Secondly, learned
Counsel for Respondents argued
that, the decision of this court
in the NAOS case actually turned
on the conclusion of the court
that the writ was void for
failure to state the residence
of the Plaintiff and that the
ordinary bench did not misapply
the facts and ratio decidendi in
the Naos case.
3. Finally, learned
counsel for the Respondents
argued that the decision of the
ordinary bench has not
occasioned any miscarriage of
justice. Counsel also contended
that the relationships between
the investors and Sphynx Capital
Markets PCC and Iroko Securities
are not governed by Ghanaian Law
and the Ghana Statute of
Limitations is irrelevant to the
determination of a cause of
action under English law.
Counsel therefore concluded that
any bonafide holder for value of
the promissory notes issued by
Eland International Ghana
Limited has always had the
opportunity to institute an
action on its own and not
dependent on the Plaintiff’s
action.
Responding to the arguments that
the arguments on order 2 r. 4
(2) was raised in this court for
the first time, learned counsel
stated that the Applicants could
have called in aid Rule 76 of
the Supreme Court Rules, C. I.
16 which allows this court under
some conditions e.g. interest of
justice and the special
circumstances of the case to
permit the adduction of evidence
in this court. That not having
been done, learned counsel
prayed that the application for
review lacks substance and must
be dismissed.
COMPETENCE OF THIS REVIEW
APPLICATION
In the case of Arthur
(No.2) v Arthur (No.2)
[2013-2014] 1 SCGLR 569 at 579 –
580, this court in a
unanimous decision in a review
application, after evaluating
the scope of review applications
generally pursuant to Rules 54
and 55 of the Supreme Court
Rules, 1996 C. I. 16, and
considering the effect and
application of the following
cases, laid down a road map that
must be complied with to ensure
a successful review application.
Some of the cases referred to
were,
i. Mechanical Lloyd
Assembly Plant Limited v Nartey
[1987-88] 2 GLR 598 at 664
ii. Quartey v Central
Services Co. Limited [1996-97]
SCGLR 398
iii. Bisi v Kwayie
[1987-88] 2 GLR 295, SC
iv. Koglex (GH) Limited v
Attieh [2001-2002] SCGLR 947
v. Internal Revenue
Service v Chapel Hill Limited
[2010] SCGLR 827 at 850,
especially at 852 – 853, just to
mention a few.
This is what the court laid down
in the Arthur (No.2) v Arthur
(No.2) case supra.
“We
are therefore constrained to
send a note of caution to all
those who apply for the review
jurisdiction of this court in
respect of rule 54 (a) of C. I.
16 to be mindful of the
following which we set out as a
road map. It is neither an
exhaustive list nor one that is
cast in iron such that it cannot
be varied depending upon the
circumstances of each case.
i.
In the first place, it must be
established that the review
application was filed within the
time lines specified in rule 55
of C. I. 16.
ii.
That there exists exceptional
circumstances to warrant a
consideration of the
application.
iii.
That these exceptional
circumstances have led to some
fundamental or basic error in
the judgment of the ordinary
bench.
iv.
That these have resulted into
miscarriage of justice (it could
be gross miscarriage or
miscarriage of justice
simpliciter).
v.
The review process should not be
turned into another avenue as a
further appeal against the
decision of the ordinary bench.
vi.
The review process should not be
used as a forum for unsuccessful
litigants to re-argue their case
It is only when the above
conditions have been met to the
satisfaction of the Court that
the review panel should
seriously consider the merits of
the application.” Emphasis
1. There is unanimity
that the decision of the
ordinary bench was rendered on
21st June 2017. There
is also no doubt that this
review application was filed in
the Registry of this Court on 20th
July 2017, thereby complying
with Rule 55 of the Supreme
Court Rules, C. I. 16 which
provides that an application for
review shall be filed in the
Registry of the court not later
than one month from the date of
the decision sought to be
reviewed. The first requirement
in the road map in the Arthur
(No.2) case supra has therefore
been complied with. We will deal
with the requirements in (ii) to
(iv) set out in Arthur
(No.2) supra together as
a common principle.
2. In order to
adequately deal with the
resolution of the above
requirements and others, we have
to turn to the judgment of the
ordinary bench for guidance. Our
respected brother, Benin JSC,
through whom the entire ordinary
bench spoke with unanimity
considered the appeal on the
basis of what was described as a
“technical but profound
legal objection to the entire
proceedings on ground on non
compliance with the provisions
of order 2 Rule 4 (2) of the
High Court (Civil Procedure)
Rules, 2004 C. I. 47 and urged
the court to dismiss the action.
Indeed they were
challenging the capacity of both
the original and the substituted
Plaintiff, per paragraph 4.0 of
the Statement of case.” Emphasis
The ordinary bench then dealt at
length with the said order 2
Rule 4(2) of C. I. 47. It was in
the course of their analysis of
the said rule and it’s
application that the decision of
this court per Sohpia Akuffo JSC
(as she then was) in the case of
NAOS Holding PSC v Ghana
Commercial Bank [2005-2006]
SCGLR 407 was relied
upon. The court then proceeded
to state the Respondent’s
herein, therein Appellants
arguments in respect of this
NAOS case as being on all fours
with the instant case. The Court
then stated thus:-
“That case” a
reference to the NAOS case,
“like the instant, involved the
issuance of promissory notes
which has been guaranteed by the
defendant bank. “The
Plaintiff sued in its capacity
as the holder in due course of
the promissory notes. The
defendant entered conditional
appearance and applied to have
the writ dismissed on this
relevant ground that the
existence of the Plaintiff as a
foreign entity was not disclosed
and so too was its address not
provided in the endorsement.
This court affirmed the decision
of the courts below that had
upheld the application to
dismiss the writ.”
The ordinary bench then
proceeded to set out the
arguments of the Appellants
therein, herein Respondents
which are as follows:-
1. That the writ of the
Applicants herein, therein
Respondents did not disclose the
fact that the Plaintiff is suing
on behalf of foreign based
persons.
ii. Secondly, that the
foreign residential address of
the investors or companies the
Plaintiff represents has not
been disclosed on the writ.
iii. Finally, that the
persons on whose behalf the
Plaintiff issued the writ were
not disclosed or identified with
specificity.”
The court then proceeded with
diligence by setting out in
detail the various metamorphosis
that the Plaintiff’s (Applicants
herein) writ had undergone since
the issuance of the writ.
The Applicant’s writ commenced
with the description of the
Plaintiffs as suing on
behalf of certain Investors.
The certain investors were
not disclosed, but an amendment
of the writ which was granted by
the High Court on 21st
June 2010 led to the amendment
which introduced the expression
“on behalf of certain
investors in promissory notes”
which introduced Sphynx
Capital markets PCC Investors
and also Tricon Trade Management
Limited as the investors on
whose behalf the writ was issued
by the Plaintiff.”
The ordinary bench proceeded to
analyse further the amended
pleadings which gave a different
picture altogether. For example,
paragraph 13 of the amended
statement of claim reads thus:
“On the 23rd day of
May 2007, Edland
International Ghana Limited,
through Iroko Securities Limited
of London, United Kingdom
discounted the said promissory
notes to investors of Sphynx
Capital Market PCC, a Mauritian
incorporated entity and others”
emphasis
What this means is that, Sphynx
are not the Investors per se and
that there are others besides,
Sphynx. The ordinary bench
proceeded further to introduce
another dimension in paragraph
18 of the Statement of Claim.
The Applicants herein, therein
Respondents argued in response
to the said analysis and claims
of the Respondents herein that
the Writ was in breach of Order
2 r. 4 (2) of C. I. 47 as
follows. This is how the
ordinary bench captured these
arguments.
“In response to the issue that
they did not state the address
of Syhynx and Tricon on the
writ, the Respondent counsel in
paragraph 24 of their statement
of case stated that the address
of Sphynx was to be found in
exhibit C which was tendered at
the trial. Yet they concede that
the address of Tricon was not
disclosed anywhere. But they
stated that “for purposes of
serving court processes SBOTCJ
and it’s replacement, Dominion
Corporate Trustees Limited were
always available. This point
can quickly be disposed of in
the sense that the rule does not
require the address for service
of the plaintiff; what is
required is rather the address
of the foreigner on whose behalf
the Plaintiff has sued. And
there are good reasons why this
requirement is in place.”
Emphasis
Throughout this review hearing
the Applicants have been
re-arguing the same points they
made before the ordinary bench
contrary to the settled practice
of this court.
The ordinary bench then
considered the other arguments
of the Applicants herein,
therein Respondents that the
said defect in the writ can be
cured by the court and relied on
some decisions of this court,
notably, Opoku (No. 2) v
Axes Co. Ltd (No.2) [2012] SCGLR
1214 and the case of
Nana Yaw Owusu & Others v
Hydrafoam Estates Limited
referred to supra. See also the
cases of Republic v High
Court, Ex-parte Allgate Co.
Limited (Amalgamated Bank Ltd-
Interested Party) [2007-2008]
SCGLR 1041, Halle & Sons v Bank
of Ghana & Anr [2011] 1 SCGLR
378 at 384 and
finally Obeng v Assemblies of
God, Church Ghana [2010] SCGLR
300 at 324, just to mention a
few.
It must be noted that, we have
taken pains to refer to some of
the cases referred to and relied
upon by the Applicants to
illustrate in this ruling that
the ordinary bench indeed
considered in detail all the
arguments made by the Applicants
in response to the incisive
arguments of the Respondents
before the ordinary bench. We
note also that the ordinary
bench considered the possibility
of allowing the Applicants to
amend the writ to supply the
address of SPHYNX and TRICON.
The court however declined that
option because the rule is that,
the identity of these entities
as well as their addresses must
be in place before the issuance
of the writ of summons. They
concluded that the writ cannot
be amended after it had been
issued to comply with
requirements.
It is interesting to observe and
note that the ordinary bench was
very emphatic on the scope of
the rule in the NAOS and the
other cases as well. On the NAOS
case, the court was emphatic as
follows:
“In the NAOS case, the argument
that the Plaintiff’s address had
been disclosed in the Power of
Attorney did not find favour
with the court. The authority of
NAOS Holding is clear that if
the writ is issued without
satisfying the requirements
imposed by the rule, it is void.
The court cannot grant an
amendment to cure that which is
void.” Emphasis
The court also discussed all the
cases relied upon, and either
distinguished it’s application
or clearly stated its non
applicability to the principles
of law involved. This court has
been very consistent in its
desire in not turning our review
jurisdiction into a forum for
unsuccessful litigants embarking
upon an appeal.
Similarly, this court seriously
frowns upon litigants who fail
to find favour with the
exposition of the law by the
ordinary bench in forcing to
have their way by embarking upon
review as in this case.
Considering the road map set out
in Arthur (No. 2) supra, and
taking into consideration our
detailed analysis of the
judgment of the ordinary bench
we want to reiterate for the
purposes of emphasis the dictum
of Adade JSC (of blessed memory)
in the case of Mechanical
Lloyd Assembly Plant Ltd. v
Nartey, (supra)
“The review jurisdiction is not
intended as a try on by a party
losing an appeal; neither is
it meant to be resorted to as an
emotional reaction to an
unfavourable judgment”
emphasis
The ordinary bench took pains to
address all the procedural
issues that arose from it’s
application of Order 2 r 4 (2)
and Order 4 r. 13 and applied
the rules correctly in our view.
It is pointless to re-argue the
same points here. By the
combined import of all the
requirements stated in (Arthur
No. 2) supra, and other
principles for review, this type
of practice in turning reviews
into appeals etc. is not
allowed, and is indeed frowned
upon by the practice of this
court.
Before we conclude this matter,
we wish to refer to the
unanimous decision of this court
in Okudzeto Ablakwa (No.3)
and Another v Attorney-General &
Obetsebi Lamptey (No. 3)
supra, where the court held as
follows:-
“Indeed, the applicants based
their case for review primarily
on inviting this Court to depart
from its previous decision in
Nii Kpobi Tettey Tsuru III
(No.2) case. In our view, a
review application will usually
not be the right context in
which to exercise the power of
the Supreme Court to depart from
its own previous decision. This
is so particularly when the
applicant in question has not
previously invited the Court,
during the argument before it
prior to the judgment sought to
be reviewed, to depart from its
earlier binding decision. In
short, in our considered view,
the applicants have not made a
sufficient case for this court
to enter into a full review of
this case on its merits. This
is because they have not
established an essential element
in the legal concept of
“exceptional circumstances which
have resulted in miscarriage of
justice” as interpreted in the
case law. That essential
element is proof of a
fundamental error of law by the
Supreme Court. Rule 54 of the
Supreme Court Rules, 1996 (CI
16) requires reliance on either
exceptional circumstances or
discovery of new and important
matter or evidence.” Emphasis
From the ratio of the decided
cases of this court on review,
it is immaterial if the
applicant for a review considers
the decision of the ordinary
court to be wrong in law or has
an emotional reaction to it, as
in this case the magnitude of
the amounts involved or the
shutting of the door to
Applicants because of effluxion
of time in instituting a fresh
action. These are not factors
that a review bench normally
takes into consideration save
exceptional circumstances or
failure to prove fundamental
error.
CONCLUSION
Having considered the entirety
of the arguments made by the
Applicants for a review of the
decision of the ordinary bench
dated 21st June 2017
and considering all the
processes filed in respect of
this review application, we
conclude our decision as
follows:-
1. The judgment of the
ordinary bench of even date was
not given per incuriam relevant
case law and statute. For
purposes of emphasis we
reiterate the position that
failure to comply with the
pre-requisites for the issuance
of a writ under order 2 r. 4 (2)
renders the writ void and it
cannot be amended or waived.
Order 4 r. 13 cannot be used to
give validity to such a rule of
mandatory practice. The maxim
“generalia specialibus non
derogat” does not even
arise.
2. The ordinary bench as
has been explained supra did not
misapply the facts and the ratio
in the NAOS decision.
3. The circumstances of
this case does not merit the
consideration and grant of
ground three supra.
For the above reasons, the
application for review of the
decision of the ordinary bench
of this court dated 21st
June 2017 fails and is
accordingly dismissed.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
AKUFFO (MS), CJ:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
S. A. B. AKUFFO (MS)
(CHIEF JUSTICE)
ANSAH, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
ADINYIRA (MRS), JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
ATUGUBA, JSC:-
I have had the advantage of
reading beforehand the Ruling of
my industrious and able brother
Dotse JSC.
After considering this matter in
the round I am reluctantly
driven to concur in the
dismissal of this Review
application.
I was at the brink of preferring
cautious cowardice to perilous
certainty with regard to the
decision of this matter when I
felt compelled to retreat
therefrom.
It is trite learning that the
Legislature knows the law and
legislates with the existing law
in mind. That being so the
decision of the ordinary bench
in this case in holding the writ
in this case void for non
disclosure of the addresses of
the foreign persons on whose
behalf the applicant sued is,
with the greatest respect,
difficult to support. There has
been a long settled Judicial
attitude in favour of saving
actions and other processes from
perdition on account of
procedural blunders.
With Rules in pari materia
with the High Court (Civil
Procedure) Rules, 2004 (C.I.47)
the consistent path of the
courts has been exemplified by
principles to the effect, as
stated by Mensah Boison J (as he
then was) in Republic v Ga
Traditional Council and Another;
Ex parte Damanley (1980) GLR
609 at 622 that “The courts
have always been reluctant to
penalize parties for their
errors, especially procedural
errors, unless they result in
injustice to the other party.
In Republic v. Asokore
Traditional Council; Ex parte
Tiwaa [1976] 2 GLR 231, C.A.
the court, faced with a similar
situation affirmed that
principle. At page 238 of the
judgment the court relied on a
passage in Cropper v. Smith
(1884) 26 Ch.D. 700 at p. 710 by
Bowen L.J. which I respectfully,
adopt:
“it is well established
principle that the object of
Courts is to decide the rights
of the parties, and not to
punish them for mistakes they
make in the conduct of their
cases by deciding otherwise than
in accordance with their rights
. . I know of no kind of
error or mistake which, if not
fraudulent or intended to
overreach, the Court ought not
to correct, if it can be done
without injustice to the other
party.”
In the decision of the ordinary
bench emphasis is placed on the
fact that the requirements
breached in these proceedings
precede the filing of a writ.
However one would have thought
that all prerequisites to the
issue of a writ are matters that
precede the filing or issue of
the writ. Even with such
prerequisites non compliance
with them has not been held to
be fatal. Thus in Opata v.
Akussie (1979)GLR 262 Taylor
J (as he then was), was
confronted with the stark and
compelling prerequisites of
O.16, r.19 of the then High
Court (Civil Procedure) Rules,
1954 (L.N. 140A) as follows:
“Before the name of any
person shall be used in any
action as next friend of any
infant . . . such person
shall sign a written authority
to the solicitor for that
purpose, and the authority
shall be filed in the Registry
of the Court in which the cause
or matter is proceeding.”
This provision was clearly
breached. But as held in the
headnote of that decision “under
L.N. 140A, Order 16, r.19 the
concern of the court where an
action was brought on behalf of
an infant plaintiff, was to have
an adult able and willing to
exercise control of the
proceedings on behalf of the
infant and if necessary to give
security for the costs of the
defendant. The status and
powers of a next friend made it
clear that his consent to the
use of his name was not merely a
technical requirement and a
solicitor was under a duty
before he commenced an action to
obtain that consent and take
instructions from the next
friend and not the infant.
Where, as in the instant case,
that consent had not been
obtained, the court to jealously
safeguard the infant’s interest,
should have recourse to Order
70, r.1 and should adjourn to
enable the written consent to be
filed.” (e.s)
Similarly in Seyire v Amemana
(1971) 2 GLR 32 C.A at 46-47 Azu
Crabbe J.A (Amissah and Anin
JJ.A concurring) said:
“In MacFoy v United Africa
Co., Ltd. [1962] A.C. 152,
P.C., the delivery of pleadings
in the long vacation without
the leave of the court or judge,
as was required under the
relevant rule of court, was
held to be an irregularity only,
and not a nullity, and it
was therefore a matter for the
discretion of the court whether
it should be set aside or not.
In Cooper v. Cooper [1964]
1 W.L.R. 1323, it was held
that the failure to obtain
the leave of a judge as required
by rule 3(2) of the Matrimonial
Causes Rules, 1957, resulted in
the filing of the petition being
an irregularity which the court
had jurisdiction to set aside,
but not a nullity which was
incurable. In that case
the court granted
retrospectively that leave which
should have been obtained when
the petition was filed so that
evidence in support of the
petition could be heard.
It seems clear, therefore, that
in this case failure to
obtain the direction of a judge
as to the mode of giving the
security for costs does not
automatically make the payment
through the bank a nullity.
It is still a matter for the
discretion of the court
whether it should be set aside
or not.”
The reasoning in these decisions
and similar ones has been
steadily followed by this court
in countless cases and it will
be sheer pedantry to repeat them
here.
It would appear that the
ordinary bench in its judgment
per Benin JSC with
characteristic dazzling
brilliance laid more emphasis on
the letter rather than the
purpose or spirit of O.4 r.(2)
of C.147. Furthermore O.4 r.2
of C 147 is not outside the
curative provisions of O.81 of
C147. It is starkly clear from
O.81 r.1(1) that “a failure to
comply with the requirements of
these Rules, whether in respect
of time, place, manner, form or
content or in any other respect,
. . . shall be treated as an
irregularity and shall not
nullify the proceedings, any
step taken in the proceedings,
or any document, judgment or
order in it”
Any setting aside of proceedings
is a judicial discretionary
exercise and not permissible
upon application after fresh
steps taken, see O.81 rules 1
(2) and 2.
Quite clearly no court has the
jurisdiction to nullify
proceedings etc for non
compliance with any of the Rules
under the High Court (Civil
Procedure) Rules, 2004 (C.I.47).
This rule has been construed in
the manner I have done here by
this court in several cases.
The purposive rule of
construction of statutes so
firmly entrenched in this court,
led by Dr. Date-Bah JSC during
his distinguished tenure in this
court and statutorily reinforced
by s.10(4) of the Interpretation
Act, 2009 (Act 792) heavily
militate against the decision of
the ordinary bench in this case.
The purpose of an address of a
person is to identify and trace
him when necessary and can
easily be cured by amendment
where it is not endorsed on a
writ, without injustice to the
other side. But for all this,
the Review jurisdiction of this
court is not a further appellate
one and must not be treated as
such.
It is pertinent to stress that
the ordinary bench went to the
extent of considering high
foreign judicial decisions and
academic writers to the effect
that procedural non compliance
relating to the exercise of a
party’s capacity is part and
parcel of that capacity and
invalidates it. However our
local O.81 has the final say as
far as the procedural aspects of
the invocation of capacity is
concerned.
Where therefore an application
has been brought for Review
based on exceptional grounds it
is difficult to say that where
the very issue involved has been
fully argued and exhaustively
considered on the same grounds
and relevant considerations,
statutory or otherwise, as in
this case, an error of the
ordinary bench can still be
considered as exceptional, on
the balance of the weight of the
decisions of this court which
have expounded the Review
jurisdiction of this court.
I therefore felt constrained to
dismiss this application but in
the hope that the decision of
the ordinary bench of this court
will soon be departed from in
subsequent cases.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
NENE AMEGATCHER WITH HIM
VICTORIA BARTH,JERRY DEI FOR
PLAINTIFF/RESPONDENT/RESPONDENT/APPLICANT.
NUTSUKPUI BENSON WITH HIM YAW
OPPONG,NUTIFAFA NUTSUKPUI FOR 1ST
DEFENDANT/APPELLANT/APPELLANT/RESPONDENT.
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