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RULING
DOTSE, JSC:-
By this application, the
Plaintiff/Applicant, hereafter
referred to as the Applicant is
seeking a review of the decision
of the ordinary bench of this
court, delivered on 29th
July 2015 wherein the Defendant/
Respondent, hereafter referred
to as the Respondent, was
adjudged as having been
successful in the appeal
launched by him which
accordingly set aside the
decision of the trial court and
allowed the appeal of the
Respondent herein.
In order to understand in proper
context, the issues upon which
the Applicant herein filed the
instant review application, we
have decided to set out in
extenso, the relevant parts of
the affidavit of the Applicant
in support of the application
for review as follows:-
The Applicant deposed to in
paragraphs 8, through to 23 as
follows:-
8. ”Incidentally, after
the denial of this title and my
father had positively evinced an
intention to eject them from the
land, the respondent and his
brother offered to appease him
by sending a cheque by letter to
his lawyer as rent advance for
ten years, but my father refused
to accept the cheque to pay
him rent so he did not cash the
cheque and allowed it to go
stale.
9. As part of his case
my father made reference in his
statement of claim to this offer
to pay him rent to induce him to
get him to waive his right to
forfeit the lease and contended
that because he did not cash the
cheque the forfeiture had not
been waived.
10. In his statement of
defence the respondent did not
deny the offer of the cheque to
induce my father to waive his
right to forfeit the lease and
that the cheque rejected by not
being cashed; rather the
respondent relied on the
offer of the cheque and the view
that the denial of title was by
their lawyer to plead that the
court ought to grant him relief
against forfeiture. He, however
never contended that though the
cheque was not cashed my father
had nevertheless did something
to waive the forfeiture.
11. Because of that the
case proceeded on only two
issues, namely, whether there
has been a denial of my father’s
title and whether relief could
be granted against forfeiture
upon denial of a landlord’s
title, but in its judgment the
court found the respondent and
his brother guilty of denying my
father’s title but said nothing
about the plea for relief
against forfeiture.
12. The respondent
appealed to the Court of Appeal
against the decision that he and
his brother had committed an act
amounting to denial of their
landlord’s title and also
raised a technical point that
the trial was a nullity because
the court did wrongly adopt the
prior proceedings in the case.
13. The Court of Appeal
allowed the appeal on the
jurisdictional point and the
case ordered to go back to the
High Court for a retrial to deal
with the issues raised on the
pleadings.
14. My father had then
died and I had been substituted
for him, so I appealed to the
Supreme Court complaining
against the decision of the
Court of Appeal nullifying the
trial court proceedings and the
Supreme Court allowed the
appeal.
15. However, instead of
returning the case to the Court
of Appeal to deal with the
merits of the appeal against the
trial court judgment so that, if
I was dissatisfied I would be
able to appeal to the Supreme
Court against any judgment given
against me, the Supreme Court
itself assumed jurisdiction to
hear the appeal against the
trial court judgment.
16. The Supreme Court
heard the appeal and gave
judgment on 29th July
2015 allowing the appeal, not on
the ground that the trial Judge
was wrong in holding that the
respondent and his brother had
not denied their landlord’s
title; it agreed that they had
denied his title but, to my
surprise, it proceeded to decide
that my father waived his right
of forfeiture although waiver
was never raised by way of a
defence to my father’s action
and plead what my father did
which constituted a waiver.
17. I am very much
aggrieved by how the Supreme
Court itself raised for the
respondent the defence of waiver
to my father’s action when the
respondent himself never raised
that defence without giving my
counsel the opportunity to
address it on waiver, which is a
question of mixed fact and law.
18. I am informed by
counsel that if he had had fair
notice that waiver was going to
be relied on by the Supreme
Court in giving its judgment
although it was not part of the
case at the trial court nor set
out as ground of appeal against
the trial court judgment, he
could have presented tangible
arguments to the effect that the
cheque was not tendered upon
demand by my father but was
volunteered, that a cheque is
not a legal tender like cash and
that the refusal to cash the
cheque was an implied rejection
of it by my father, so that no
unequivocal act was done by my
father between 1992 and 1994
clearly indicating that he still
regarded the lease as still
continuing after his title had
been denied and that the mere
delay in returning the cheque
till had it expired did not mean
that my father did receive the
amount of rent represented by
the cheque because my father was
not obliged to accept the cheque
by presenting to the bank to
cash it personally or through
his bank.
19. I could easily have
appealed to the Supreme Court
against such a decision if the
appeal had been allowed to go
back to the Court of Appeal to
be heard on its merits and the
Court of Appeal had decided that
my father waived the forfeiture
because, according to my lawyer,
according to law waiver by
taking rent consists of either
the landlord demanding the rent
after knowledge of the act of
forfeiture in case or by cashing
a cheque tendered for payment of
rent.
20. In my father’s case,
he did not demand any rent from
the respondent and his brother
who rather volunteered to pay
his rent by cheque, yet the
cheque was never cashed but
returned before he exercised the
right of forfeiture, not by
means of peaceable re-entry but
by issuing a wriit of summons
21. I am advised by
counsel and verily believe that
the circumstances under which
the Supreme Court came to give
its own ruling and thereby
deprived a fair hearing by not
giving my counsel the
opportunity to contest the
appeal on the question of waiver
and so caused substantial
miscarriage of justice to me.
22. As matters stood on
the pleadings and during the
trial no issue of waiver was
raised as a defence to my
father’s claim so the Supreme
Court should have left the case
alone after it had agreed with
the trial Judge that the
respondent and his brother
denied my father’s title.
23. If the Supreme Court
was minded to give judgment in
favour of the respondent, the
only thing it could have done
was to look at the question of
relief against forfeiture which
was raised and fought at the
trial court but that court
failed to deal with, but not the
question of waiver of forfeiture
which was never raised at all.”
Emphasis supplied
From the above depositions, it
appears that, the misconception
working in the mind of the
Applicant stems from her
inability to comprehend the
procedure that was adopted by
the Supreme Court to adjudicate
the issues raised once and for
all to finality. The procedure
adopted by this court cannot be
faulted, as this court has by
article 129 (4) of the
Constitution 1992, all the
powers of other courts
established under the
Constitution 1992. See also
section 2 (4) of the Courts Act,
1993, Act 459. This means that,
this court can exercise, all the
powers of the trial High Court
and the Court of Appeal in order
to completely, and effectually
adjudicate all issues in
controversy.
It is also to be noted that the
review jurisdiction of this
court has been stated in Article
133 of the Constitution, 1992,
section 6 of the Courts Act,
1993, Act 459, and Rules 54 - 60
of the Supreme Court Rules C.I.
16. This means that, the said
review jurisdiction is statutory
and it is to those provisions
that we must turn attention to
in order to determine the
fortunes of this application.
Rule 54 of the Supreme Court
Rules, C. I. 16 provides as
follows:-
“The Court may
review a decision made or given
by it on the grounds of
(a)
Exceptional circumstances which
have resulted in a miscarriage
of justice.
(b)
The discovery of new and
important matter or evidence
which, after the exercise of due
diligence, was not within the
applicant’s knowledge or could
not be provided by the applicant
at the time when the decision
was given.”
We believe that it is because of
the above that the respondent
deposed to as follows in the
affidavit sworn in opposition to
the instant review application
by Counsel on his behalf as
follows:-
5. “That there is no
legal basis for the present
application.
6. That no exceptional
circumstances have been laid
forth by the applicant.
7. That all the legal
points raised in the application
have been dealt with already in
the judgment of the Supreme
Court.
8. That applications for
review are not meant to be
attempt at a second “bite of the
cherry”.
We have perused the statements
of case filed by learned counsel
for both parties. Unfortunately,
learned counsel for the
Applicant Mr. James Ahenkora
spent a considerable portion of
his statement of case and the
continuation statement, as if
this case was an appeal, and not
a review. In review
applications, it is not
permissible to an Applicant to
refer copiously again to the
proceedings before the trial
High Court and the Court of
Appeal. The authorities are
quite settled that the review
application is not a process for
which a losing party in the
Supreme Court may seek to have
another bite of the cheery.
Instead, an applicant in a
review application has to point
out from the judgment reviewed
from the exceptional
circumstances which have
resulted into a miscarriage of
justice. None was however
offered by the applicant in this
case.
See cases like
1. Afranie v Quarcoo
[1992] 2 GLR 561 at 591-959
where Wuaku JSC had this to say
“There is only one Supreme
Court. A review court is not an
appellate court to sit in
judgment over the Supreme Court”
2. Mechanical Lloyd
Assembly Plant Ltd. v Nartey
[1987-88] 2 GLR 598
3. Quartey v Central
Services Co. Ltd [1996-97] SCGLR
398 per Abban C. J., at 399
where he stated thus:-
“A review
jurisdiction is a special
jurisdiction and not an
appellate jurisdiction conferred
on the court, and the court
would exercise that special
jurisdiction in favour of an
applicant only in exceptional
circumstances.”
4. Pianim (No. 3) v
Ekwam [1996-97]
5. Koglex (GH) Ltd. v
Attieh [2001-2002] SCGLR 947
6. Attorney-General (No.
2) v Tsatsu Tsikata (No. 2)
[2001-2002] SCGLR 620
7. Internal Revenue
Service v Chapel Hill School
Ltd. [2010] SCGLR 827, at 850
per Dr. Date-Bah JSC
We have observed that, quite
often, counsel and their clients
have resorted to the review
jurisdiction in much the same
way as they resort to appeals
from one level of court to the
other. However, it is important
to emphasise the fact that the
principle of finality of
judgments of courts, especially
of the final appellate court
such as the Supreme Court, must
be respected by all.
This principle is expressed in
it’s latin maxim as follows:-
“Interest res publicae ut finis
sit litium” meaning it is the
function of the final court of
the land to bring finality to
the resolution of disputes. “
The above principle was
expressed in it’s narrow context
by Date-Bah JSC in his opinion
in the case of GIHOC
Refrigeration and Household
Products (No. I) v Hanna Assi
(No. I) 2007-2008 SCGLR 1, at
page 12.
In the instant review
application, learned counsel for
the applicant, Mr. James
Ahenkora has not shown by any
credible arguments why the
decision of the ordinary bench
should be reviewed. Instead,
counsel appeared to have been
unsettled by the procedure used
by this court to expeditiously
deal with the appeal.
For instance, learned counsel
for the applicant has not
established or shown that the
decision of the ordinary bench
was given per incurriam, or that
it is void and or contains a
fundamental and inadvertent
error. In short, the instant
application is one that has been
employed just to test the
resilience of the court.
In dismissing this review
application as devoid of any
merit, we wish to endorse the
words of our distinguished
brother, Dr. Date-Bah JSC, in
his seminal book, titled
“Reflections on the Supreme
Court of Ghana” page 110 where
the learned author observed as
follows:-
“In sum, the review jurisdiction
of the Supreme Court is one held
in reserve by the court to be
deployed in exceptional
circumstances to correct
fundamental error committed by
the ordinary bench”
Since no such exceptional
circumstances have been proven
to exist, this review
application must fail.
The common thread running
through all the cases referred
to is that, a review panel must
not countenance an applicant’s
case being that of a losing
party seeking to re-argue it’s
appeal under the garb of a
review application.
Unfortunately, this is exactly
what the applicant has sought to
do by the instant review
application. We have already
referred to in extenso the
affidavit of the applicant in
support of the review
application. In substance, what
the applicant has anchored her
case on is the fact that the
ordinary bench considered the
appeal on the ground of waiver
of forfeiture instead of relief
against forfeiture. However, a
quick reference to paragraph 23
of the affidavit in support
shows that, at the trial High
Court, the question of relief
against forfeiture was raised
and contested during the trial,
but the court did not make any
pronouncement on the issue.
We have verified from the record
of proceedings and confirmed
that the pleadings infact attest
to these depositions. That being
the case, the ordinary bench of
this court was clearly within
its jurisdiction when it decided
to raise the issue of waiver of
forfeiture which is a legal
issue arising from the pleadings
and deal with it. This is
because, as a legal issue, it
can be raised before this court
for the first time and dealt
with.
We have perused the judgment of
the ordinary bench of this court
delivered on the 29th
of July 2015 and are satisfied
that the issue of forfeiture and
the circumstances under which it
could be waived had been
adequately dealt with.
From the authorities referred to
supra, it is clear that, instead
of the applicant, indicating the
exceptional circumstances in the
decision of the ordinary bench
which have resulted into a
miscarriage of justice, learned
counsel for the applicant spent
considerable time dealing with
the application as if it was an
appeal from both the trial High
Court, and the Court of Appeal
to this court.
In this respect, learned counsel
for the respondent, Ekow Kum
Amuah-Sekyi was spot on when he
stated in his statement of case
as follows:-
“The Supreme Court per Baffoe
Bonnie JSC had fully examined
the law on forfeiture of a lease
and its attendant consequences.
It is not open to the applicant
to seek to re-argue the legal
principles of forfeiture and
camouflage same as an
application for review.”
From the facts of this
application, we are certain that
the applicant has not shown the
existence of any exceptional
circumstances which if not
addressed would perpetuate a
miscarriage of justice. And
since a review application is
not an avenue for an applicant
to re-argue an appeal that has
failed, the application herein
is dismissed.
On the basis of the above
analysis, we hereby dismiss the
applicant’s review application
of the judgment of the ordinary
bench delivered on 29/7/2015.
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
CONCURRING OPINION
BENIN, JSC:-
I am in entirely agreement with
both the decision and reasoning
expressed by my able brother
Dotse, JSC. However, in view of
the fact that I had formed an
opinion which I had committed to
paper before I received my
learned brother’s opinion, I
would like to say a few words to
express my thoughts on the
issues raised by this
application for review. The
grounds for the application have
been set out extensively in the
lead opinion so I will not
repeat them.
It is true, as stated by Counsel
for the applicant, that the case
was contested on two issues
before the trial High Court
namely whether the defendant had
denied the plaintiff’s title and
if so whether the defendant
should be relieved against
forfeiture. It is significant to
note that the summons for
directions was filed by the
plaintiff and he added what I
may term an omnibus issue, for
want of an appropriate
expression, namely ‘any other
issue raised by the pleadings’
What this omnibus issue means is
that it enables the court to
deal with every conceivable
issue that the pleadings throw
up especially those on which
admissible evidence has been led
by the parties. But even in the
absence of this omnibus issue
the court should nevertheless be
at liberty to examine any issue
that arises on the pleadings
directly or by necessary
implication or inference,
whether it has been agreed upon
or not. The only caution is that
there must be credible and
legally admissible evidence on
the record to support the
court’s decision.
Therefore what should engage the
court’s focus is whether on the
state of the pleadings the issue
of waiver of the right to
forfeiture was raised either
directly or by necessary
implication. Thereafter the
court would have to find out
whether evidence was adduced on
the record on the issue. If
these two conditions are
satisfied, this court would be
at liberty to decide without any
further recourse to Counsel
under rule 6(8) of the Supreme
Court Rules (1996) C.I 16,
contrary to the position taken
by counsel for the applicant.
First of all let us look at the
pleadings. The issue of waiver
of the right to forfeiture is
ordinarily one for the defendant
to raise it in his pleadings, in
other words waiver is a defence
to a claim for forfeiture. But
curiously in this case it was
the plaintiff himself who first
raised it in his statement of
claim. Paragraph 7 reads:
The plaintiff says that he has
not waived the forfeiture as he
refused to accept overtures by
the defendant and his late
brother to appease him by
tendering a cheque for £12,000
in a supposed payment of rent
for the property covering a
period of ten years………………
In the statement of defence, the
defendant referred to a letter
written by his lawyer to the
plaintiff through his
(plaintiff’s) lawyer in which he
“enclosed a cheque in
recognition of your client’s
title…..” The defendant went on
to plead that on these facts the
court should grant him relief
against forfeiture and also
denied that the plaintiff was
entitled to any of his reliefs.
On these pleadings it is very
clear that the waiver of the
right to forfeiture was raised
as a triable issue, although
admittedly it was not set down
by the trial court. It was clear
from the pleadings that the
waiver was founded on the
presentation by the defendant of
a cheque for rent advance with
the declared object of
recognizing the plaintiff’s
title for the relationship of
landlord and tenant to continue.
I will next examine the material
or relevant evidence. I do not
think I have to go into the
details of the evidence. Suffice
it to say that the plaintiff
actually took hold of the cheque
and was aware that it was
intended as a rent advance with
the object of continuing the
relationship of landlord and
tenant. The plaintiff did not
cash the cheque neither did he
return it to the defendant by
rejecting his offers. He rather
kept it for some nine months,
precisely from April 1992 to
February 1993, before purporting
to return it to the defendant.
All these facts are not in
dispute.
The legal position
As already stated, where there
is evidence available on the
record sufficient to satisfy the
evidential burden of proof, this
court as a court of last resort
will apply the law to the facts
in order to bring litigation to
a close. The issue of waiver was
directly linked to the relief
against forfeiture so parties
are not taken by surprise. With
the evidence on record it was a
matter of what inference to draw
from same which the court was
able to do and give the decision
which the courts below failed to
do, by virtue of Article 129(4)
of the Constitution, 1992. The
legal position is that where
money is accepted, it is a
question of fact whether it is
tendered and accepted as rent;
if it is so tendered and
accepted, then it is a principle
of law that, so long as the
landlord then knew of the
breach, the acceptance
constitutes a waiver. See the
case of Windmill
Investments (London) Ltd v.
Milano Restaurant Ltd. (1962) 2
QB 373; (1962) 2All ER 680.
The law is quite strict on
this; it may be so because it
seeks to protect the tenant who
is often regarded as the weaker
party in landlord-tenant
relationship. Thus in the case
of Central Estates
(Belgravia) Ltd v. Woolgar (No.
2), (1972) 1 WLR 1048, CA
where a managing agent’s
clerk accepted rent in error, it
was said to be binding on the
landlord and constitute a
waiver. Counsel for the
applicant cited another relevant
case, namely Matthews v.
Smallwood (1910) 1 Ch 977;
(1908-10) All ER Rep 536; 102 LT
228. The court decided
inter alia that waiver was a
defence to a claim for
forfeiture.
The facts constituting a waiver
by conduct, deed, action or in
action depend on the facts and
circumstances of each case. The
court has concluded that the act
of the plaintiff in keeping the
cheque for a considerable length
of time without any indication
to the defendant that he was
rejecting the offer amounted to
an acceptance and consequently a
waiver of the right of
forfeiture. It is common
knowledge that a cheque is valid
for clearance within a period of
six months from the date it
bears. Therefore it is
reasonable to expect that a
beneficiary of a cheque who
desires to reject it for
whatever reason should do so
within the six months period to
enable the issuer to have the
benefit of the cheque if he so
desires. If he keeps the cheque
for more than six months the
issuer would be entitled to
believe that it has been
accepted without any
equivocation or reservation. For
without communication from the
beneficiary that he does not
intend to accept the cheque, the
issuer would have no opportunity
to know his thoughts. The fact
that the plaintiff subsequently
returned the cheque to the
defendant at his own pleasure
did not revive the waiver which
had occurred in the
circumstances. Time was thus of
the essence in this case and a
clear decision to reject the
cheque was required in the
circumstances of this case.
It must be pointed out that the
defendant’s decision to re-write
another cheque did not resurrect
the waiver either, for as a
tenant the defendant was obliged
to pay rent for the unexpired
term of the lease and that is
the only reasonable inference to
be drawn from the second cheque
that the defendant issued. The
facts as well as the law
justified the conclusion of the
court. And even if for the sake
of argument the court erred this
per se would not ground a review
unless as pointed out in the
lead opinion a miscarriage of
justice had resulted therefrom.
And in the absence of any
exceptional circumstances which
have occasioned a miscarriage of
justice this is not a fit case
to review.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
JAMES AHENKORAH ESQ. FOR THE
PLAINTIFF/RESPONDENT
/APPELLANT/APPLICANT.
E. K. AMUA SEKYI ESQ. WITH HIM
ELEEN LADY ERSKINE (MRS.) ESQ.
FOR THE DEFENDANT/APPELLANT/
RESPONDENT/RESPONDENT.
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