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Practice and
Procedure - special leave to
appeal - Discretionary power of
the Court - Land – Declaration
of title - General damages for
trespass - Perpetual injunction
– Whether or not the right of
appeal under the rules being
extinguished was a bar to the
application. - Article 131(2) of
the 1992
constitution - section 4
(2) of the
courts
Act, Act 459 and rule 7 (4)
HEADNOTES
The Applicant
as plaintiff instituted an
action in the Circuit Court
against the Respondent herein
for a declaration that the
plaintiff is the only person
lawfully entitled to possess and
use the land described in his
statement of claim as the Land
situate, lying and being at
Kokompe Accra and bounded on the
North West by the Lessor’s land
- - - on the south west by the
Lessor’s land and covering a
approximate area of 0.13 acres
more or less,
General damages for trespass,
perpetual injunction restraining
the defendant and his agents
from interfering with the
plaintiff’s workers on the land.
This action by the plaintiff was
vehemently resisted by the
Defendant who counter-claimed
for: a declaration that he had
been granted a prior lease of
the land in dispute from the
plaintiff’s lessors since 1998
and therefore any subsequent
lease of the same property to
the plaintiff was void.”
Perpetual injunction restraining
the plaintiff, his agents,
principals or any purported
lessors from entering upon or
carrying on any construction
work on the land in dispute
HELD
That averment
is a deliberate falsehood to put
the reason for the delay at the
doorstep of the court in order
to sway the court in the
exercise of its discretion in
favour of the Applicant. We must
express the court’s utter
disgust at such conduct of both
counsel and litigants that tend
to disable the court from
exercising its discretion in
such matters judicially. As
officers of the court our avowed
duty is to see to it that
Justice is done at all cost.
How does the
Applicant expect the court to
exercise its discretion in his
favour when he is not candid
with the court? For this reason
alone, the application for
special leave ought to be
dismissed. Another reason for
which this court would refuse an
application for special leave is
the need for prevention of delay
in the administration of
justice. Delay in pursuing an
appeal could adversely affect
the acquired rights of others
with consequent injustice to
them, The application for the
reasons assigned herein fails
and same is hereby dismissed
STATUTES
REFERRED TO IN JUDGMENT
1992
constitution;
courts Act,
Act 459
Supreme Court
Rules C. I. 16
CASES
REFERRED TO IN JUDGMENT
Allen vs Sir
Alfred Macalphine & Sons Ltd
[1968] AER 547
Dolphyne (No.
2) vrs Speedline Co. Ltd
[1996-97] SCGLR 373
Nyimoh vrs
Dadzie [1962] 1 GLR 327
Ansah and
others vrs Atsem and Others
[2001-2002] SCGLR 906
Kotey vrs
Koletey [2000] SCGLR 417
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
OWUSU (MS),
JSC:-
COUNSEL
DICK K. ANYADI FOR THE PLAINTIFF
RESPONDENT/APPLICANT.
DANIEL NTIM BOATENG FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
_________________________________________________________________________
R U L I N G
_________________________________________________________________________
OWUSU (MS),
JSC:-
The Applicant
herein is under
Article
131(2) of the 1992 constitution;
section 4 (2) of the courts Act,
Act 459 and rule 7 (4) of
the
Supreme Court Rules C. I. 16
praying for
special
leave to appeal to the
Supreme Court.
The
application is supported by 19
paragraphed affidavit on which
he relied on all the averments
contained therein.
The Applicant
as plaintiff instituted an
action in the Circuit Court
against the Respondent herein
for
–
“a. A
declaration that the plaintiff
is the only person lawfully
entitled to possess and use the
land described in his statement
of claim as the Land situate,
lying and being at Kokompe Accra
and bounded on the North West by
the Lessor’s land - - - on the
south west by the Lessor’s land
and covering a approximate area
of 0.13 acres more or less.”
“b. General
damages for trespass.”
“c. perpetual
injunction restraining the
defendant and his agents from
interfering with the plaintiff’s
workers on the land.”
This action
by the plaintiff was vehemently
resisted by the Defendant who
counter-claimed for:
“a. A
declaration that he had been
granted a prior lease of the
land in dispute from the
plaintiff’s lessors since 1998
and therefore any subsequent
lease of the same property to
the plaintiff was void.”
“b. Perpetual
injunction restraining the
plaintiff, his agents,
principals or any purported
lessors from entering upon or
carrying on any construction
work on the land in dispute.”
At the end of
the trial, Judgment was entered
for the plaintiff and the
Defendant’s counter-claim
dismissed.
Dissatisfied
with the Judgment, the Defendant
appealed to the Court of Appeal.
By its Judgment dated 5th
day of November 2009 the Court
of Appeal reversed the decision
of the trial court and entered
Judgment for the Defendant.
Under Article
131(b) of the constitution, if
the plaintiff wanted to appeal
against the Court of Appeal’s
Judgment to the Supreme Court,
he needed leave of the Court of
Appeal.
Article
131(1) of the constitution reads
as follows:
“An appeal
shall lie from a judgment of the
Court of Appeal to the Supreme
Court –
“(a) as of
right in a civil or criminal
cause or matter in respect of
which an appeal has been brought
to the Court of Appeal from a
Judgment of the High Court or a
Regional Tribunal in the
exercise of its original
Jurisdiction; or
“(b) With
the leave of the Court of Appeal
(e.s.) in any other cause or
matter, where the case was
commenced in a court lower than
the High Court or a Regional
Tribunal and where the court of
Appeal is satisfied that the
case involves a substantial
question of law or is in the
public interest.
The Applicant
has in the instant case
commenced the action in the
Circuit Court.
The leave to
be applied for under Article
131(1) (b), shall be filed with
the Registrar of the court below
within fourteen days of the date
of the decision against which
leave to appeal is sought.
The
Applicant’s case is that being
seriously aggrieved by the
Judgment of the Court of Appeal,
he made up his mind to appeal
against it but resolved to
appoint new lawyers to take up
his further appeal.
The crucial
averments in the affidavit and
indeed the pillars on which the
application stands are:
“8. That when I
eventually got introduced to my
new lawyers, Messrs Dick K.
Anyadi & Associates, they
insisted on seeing a copy of the
Judgment of the Court of Appeal
before deciding what step to
take in the matter.
Paragraph 9
which turned out to be false
reads as follows:
“That by the
time I was able to procure the
judgment for them to study, the
time limited for an application
for leave to further appeal to
this Honourable court had
expired.”
10. “That
although my said lawyers did
file an application for
extension of time to apply for
leave in the Court of Appeal,
they had to withdraw same as
there is no provision for
extension of time under
rule 7 of the Supreme Court
Rules 1996, C. I. 16.”
Feeling
strongly about the need to
appeal, he has come to this
court to pray for special leave
to appeal under Article 131(2)
of the constitution.
The said
Article states as follows:
“Notwithstanding clause (1) of
this article, the Supreme Court
may entertain an application for
special leave to appeal to the
Supreme Court, in any cause or
matter, civil or criminal, and
may grant leave accordingly.”
There is no
time frame within which such an
application may be brought. It
must however be brought
timeously. See the case of
ALLEN VS
SIR ALFRED MACALPHINE & SONS LTD
[1968] AER 547
In the case
of
DOLPHYNE (No. 2) VRS SPEEDLINE
CO. LTD [1996-97] SCGLR 373,
the court said the discretion
given to the court is unfettered
and the reason for this is not
far fetched. The court being
the highest court is given this
wide
discretionary power to do
Justice in appropriate cases.
In holding
two indeed the court held that
in the exercise of this
unfettered discretion, the court
is not bound by any rules of
practice or procedure or any
legislation.
The
principles to be applied as
guides on which the Supreme
Court might determine whether to
grant special leave to appeal or
not had been set down in the
DOLPHYNE (No. 2) case by the
court as follows:
“(a) where there was a prima
facie error on the face of the
record; or
(b) a general principle of law
had arisen for the first time;
or
(c) a decision
by the Supreme Court on the
point sought to be appealed
against would be advantageous to
the public”, relying on and
approving the ruling of scott J.
sitting in the High Court, Cape
Coast in the case of
NYIMOH
VRS DADZIE [1962] 1 GLR 327”
The holding
in that case amply sets out the
conditions upon which special
leave may be granted thus:
“Held: Special
leave will not be granted unless
(a) there is a prima facie error
on the face of the record; or
(b) a general principle of law
has arisen for the first time;
or (c) a decision by the Supreme
Court on the point sought to be
appealed against will be
advantageous to the public.”
In arguing
the application, counsel was
called upon to satisfy the court
as to whether his statutory
right of appeal having
extinguished, there was any need
for the application to be
considered. He successfully
satisfied the court that the
fact that
his right of appeal under the
rules was extinguished was no
bar to the application.
In this wise
he referred the court to the
case of
ANSAH and others VRS ATSEM and
Others [2001-2002] SCGLR 906
at 910 where the most respected
sister of mine Bamford-Addo
J.S.C. (as she then was) quoting
from her own ruling in the case
of KOTEY
VRS KOLETEY [2000] SCGLR 417
said:
“Since no
conditions were imposed under
the ruled and the matter was
left at large under article 131
(2) and rule 7 (4) of C. I. 16,
the grant of special leave is at
the discretion of the court and
not fettered by any rules of
procedure or any law nor should
the court lay down a set of iron
rules on which the discretion of
the court was always obliged to
run.”
Touching on
the merits of the application,
counsel submitted that there are
errors of law in particular,
wrong invocation or
misapplication of various legal
doctrines and or principles by
the Court of Appeal in the
judgment, which, if he is able
to substantiate, would clearly
constitute a prima facie error
on the face of the record.
He argued
further that the Court of Appeal
fell into error in decreeing
specific performance of the
alleged contract between the
Defendant and the Vendor family
when there was no sufficient act
of part performance.
Are these the
type of errors envisaged under
the guiding principle as set out
in NYIMOH VRS DADZIE already
referred to and approved and
applied in DOLPHYNE (No. 2)
case?
The errors
complained of are such that the
Applicant could have addressed
them in an application for
ordinary leave to appeal.
The errors
are not prima facie errors on
the face of the record for which
reason the court must exercise
its discretion to grant special
leave.
In the
affidavit in support, the
applicant averred that it was
only when he succeeds in
substantiating the errors
complained of that they would
constitute prima facie errors.
This supposes that one would
have to read the record before
discerning these errors if
indeed they are errors of law.
The Applicant’s complaint
against the Court of APPEAL
Judgment is a matter to be
decided by an appeal if he had
obtained ordinary leave to
appeal.
In an attempt
to get this court to grant the
leave sought for, the Applicant
swore to an affidavit in which
he deposed to deliberate
falsehood that at the time he
obtained copy of the Court of
Appeal Judgment, time for filing
an application for leave to
appeal has run out.
This
deposition has already been
referred to.
The Judgment
of the Court of Appeal was
delivered on 5th
November 2009 and the instant
application was filed on 28th
May 2010. In the affidavit in
opposition, the Respondent in
paragraph 6 averred as follows:
“That I
vehemently deny paragraph 9 of
the affidavit in support and
further say that on the face of
Ex “A”, the Applicant, obtained
his copy of the Judgment on
11/11/2009, just six day (sic)
after the Judgment was delivered
on 5th November 2009.
- - -
Having been
served with this affidavit,
there was no reaction from the
Applicant. In court when
counsel’s attention was drawn to
this paragraph and an
explanation was called for, he
told the court this was a
mistake and that what the
Applicant actually meant was
proceedings instead of Judgment.
What proceedings did he need to
file the application for leave?
He had the statement of case he
filed in the Court of Appeal,
that of the Appellant and the
record of proceedings from the
trial court. All that he needed
was the Judgment copy of which
he had obtained on 11/11/2009.
That averment
is a deliberate falsehood to put
the reason for the delay at the
doorstep of the court in order
to sway the court in the
exercise of its discretion in
favour of the Applicant.
We must
express the court’s utter
disgust at such conduct of both
counsel and litigants that tend
to disable the court from
exercising its discretion in
such matters judicially.
As officers
of the court our avowed duty is
to see to it that Justice is
done at all cost.
How does the
Applicant expect the court to
exercise its discretion in his
favour when he is not candid
with the court? For this reason
alone, the application for
special leave ought to be
dismissed.
Another
reason for which this court
would refuse an application for
special leave is the need for
prevention of delay in the
administration of justice.
Delay in pursuing an appeal
could adversely affect the
acquired rights of others with
consequent injustice to them.
I must admit
that in the instant application,
the delay is not inordinate but
each application must be
considered on its own facts.
In paragraph
10 of the affidavit in
opposition, the Respondent avers
as follows:
“that great
hardship, injustice and
inconvenience will be caused to
me if the court re-opens the
right of appeal for the
Applicant, because I have acted
on the Judgment and have
commenced developing the land
forming the subject matter of
the suit.”
On the whole,
no good reasons have been given
for which the Applicant must be
given this special leave to
appeal. In the case of KOTEY
VRS KOLETEY already referred to,
Atuguba J.S.C. had this to say –
“although an
application for normal leave
must show some merits in the
intended appeal, an application
for special leave must do more
than that; it must also give
good and convincing reasons why
the application is special. - -
-
The
application for the reasons
assigned herein fails and same
is hereby dismissed.
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL:
DICK K. ANYADI FOR THE PLAINTIFF
RESPONDENT/APPLICANT.
DANIEL NTIM BOATENG FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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