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RULING
ACQUAH JSC:
The issue for determination in
this ruling is whether or not a
party’s statement of case filed
woefully out of time, can be
permitted to be amended,
especially where the defaulting
party has not asked for leave to
rectify the default. But first,
the brief facts.
On 13th April 1981, the
Plaintiff took action at the
Accra High Court against the
Defendants, claiming as later
amended:-
(a) “A declaration that in or
about June/July 1979 she was the
owner of all that piece or
parcel of land situate at Madina
and known as House NO. B/MDN/14
and fully described in the
attached plan and Deed
Registered as No. 4446/1978.
(b) That the sale of the said
property by the 1st Defendant to
the 2nd Defendant in June 1979
is null and void.
(c) General Damages”.
Later on, one Osmanu Alhassan
was joined as Co-plaintiff. On
14th August 1989, the trial High
Court dismissed the action with
costs against the Plaintiff and
Co-plaintiff. An appeal to the
Court of Appeal was also
dismissed on 25th July 1995. A
further appeal to the Supreme
Court was once again dismissed
on 17th June 1998. Still
undaunted the plaintiff and
co-plaintiff filed a motion on
2nd July 1998 for a review of
the Supreme Court’s judgment. It
is in respect of this review
application that the plaintiff
and Co-plaintiff/Applicants now
seek leave to amend their
statement of case. The basis of
this application, as outlined in
paragraphs 3 to 6 of their
supporting affidavit, is as
follows:
“3. On 2nd July 1998 we filed a
motion for review of this
Honourable Court’s said
judgment of 17th June 1998, a
certified copy of which became
available only in late August
2001, whereupon we filed the
written submission of our case
for review.
4. In our hurry to file our
written submission on time we
omitted specifying the statutory
basis of our case, namely that
this Court’s decision was given
per incuriam of the vital
section 93(2) of the
Administration of Estates Act,
1961 (Act 63), and of the
relevant decided authorities on
the effect of illegality.
5. We now specifically seek
leave to supply this omission by
a proposed amendment of our said
written submission contained in
the paper bearing the heading
“Proposed Amendment of Written
Submission of Plaintiff and
Co-plaintiff’s case for review”.
6. And we pray for leave
accordingly.”
The Defendants/Respondents
resist the application on two
grounds – first that there is,
in law, no statement of case by
the applicants, to be amended,
and secondly the rules of the
Supreme Court governing review
application do not have
provisions permitting amendment
of a party’s statement of case,
and that the grant of any such
amendment has therefore been an
exercise of the court’s inherent
jurisdiction. And since there is
no properly filed statement of
case, this Court should not
exercise his discretion in
favour of the applicants.
Now as to why there is no proper
statement of case of the
applicants, the Defendants quote
rule 56, and continue:
“1.2. On 2nd July 1998, the
applicants filed a Notice of
Motion for Review (Civil Motion
No. 49/98) with only an
“….Affidavit in support of
Review Action”.
1.3. The Applicants did not file
with the application for a
review a statement of their case
as mandatorily required under
rule 56(1) of C.I. 16.
1.4 In fact the Applicants filed
their Statement of Case for
Review well over 3 years after
the motion and affidavit in
support for review had been
filed, specifically on 17th
September 2001.
1.5 The Applicants Statement of
Case for Review is therefore
incompetent. It is also not
properly before the Court for an
order amending it to be made by
this Honourable Supreme Court.”
In his response to these
objections, the plaintiff and
Co-plaintiff/respondents contend
that the issue for determination
in their review application is:
“Whether or not this Court’s
judgment in favour of 2nd
defendants is illegal and void
by reason of section 93(2) of
the Administration of Estates
Act, 1961 (Act 63). Section 93
(2) requires that immovable
property comprised in an
intestate estate must be sold by
two or more administrators. The
judgment of this Court upholding
the unilateral oral sale of the
house in dispute by one alone of
two administrators was given per
incuriam of section 93(2) of Act
63, the governing statutory
provision, and is consequently
void and unwarranted”.
They further allege that the
original 2nd defendant knew
Chief Seidu and his family as
fellow worshippers at Madina
Mosque, and he must therefore be
deemed to know that the property
did not belong to Chief Seidu’s
son. This presumed knowledge
disqualified the 2nd defendant
from being a bona fide purchaser
for value without notice.
Now in respect of the contention
that they have no valid
statement of case to be amended,
the Plaintiff and Co-plaintiff
plead that their notice for
review consisted of a motion
paper and a supporting
affidavit. And that
“a statement of their case could
not be filed with the motion
initially, because a certified
copy of the judgment of 17th
June 1998 was simply not
available within the time limit
for filing a review. It was
several months later that copies
of the perfected judgment became
available… Eventually the
statement of the Plaintiff and
Co-plaintiff’s case on review
was filed within normal time
after the Co-defendant obtained
a certified copy judgment.”
From the above averments, the
plaintiff and co-plaintiff
obviously admit that their
statement of case was filed
several months after their
notice of motion for review.
Indeed it was filed on 17th
September 2001, that is, over
three years after the filling of
the motion for review.
Rule 56 of C.I. 16 provides:
“56 (1) The application for
review shall be by motion
supported by an affidavit and
accompanied by a statement of
the applicant’s case, clearly
setting out and fully arguing
all relevant grounds on which
the applicants relies.
(2) The motion shall be on
notice to all parties affected
by the application”.
Clearly then, the plaintiff and
co-plaintiff’s application for a
review is incompetent in terms
of the above rule. And in the
language of Rule 79 of C.I.16
such failure to comply with the
rule constitutes a bar to
further prosecution or
proceedings in the action unless
the court decides otherwise.
Rule 79 of C.I. 16 reads:
“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
rules 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”.
In the instant case, the
plaintiff and co-plaintiff are
not even appealing to the Court
to waive and regularize their
failure to file their statement
of case as required by rule
56(1). Rather what they seek to
do is to justify their conduct,
and maintain that they were
right in so doing.
For, they claim that first, the
judgment was not available, and
that they had copies several
months thereafter. Secondly,
that they filed their statement
of case “within normal time
after the co-defendant obtained
a certified copy judgment”.
What is this normal time, one
may ask? Rule 56(1) does not
require the statement of case to
be filed within any period. What
is required is that the
statement of case must be filed
at the same time with the motion
paper and affidavit. Furthermore
we do not accept that failure to
obtain copies of the judgment in
time is a sufficient ground to
justify a party’s inability to
file his statement of case. The
parties and their counsel are
expected to be in the court room
so as to enable a party who
genuinely believes that he has a
case for a review of the
judgment, to set same out in his
statement of case for review.
Otherwise the application for a
review would appear to be
nothing but a pretext to have a
second bite at a reconsideration
of the case. Not a genuine case
for a review. As Adade JSC
rightly pointed out at pages 603
to 604 of Mechanical Lloyd
Assembly Plant vs. Nartey
(1987-88) 2 GLR 598:
“The review jurisdiction is a
special jurisdiction to be
exercised in exceptional
circumstances. It is not an
appellate jurisdiction. It is a
kind of jurisdiction held in
reserve, to be prayed in aid in
the exceptional situation where
a fundamental and basic error
may have inadvertently been
committed by the Court, which
error must have occasioned a
gross miscarriage of justice.
The review jurisdiction is not
intended as a try on by a party
after losing an appeal, not is
it an automatic next step from
an appeal; neither is it meant
to be resorted to as an
emotional reaction to an
unfavourable judgment”.
Indeed it is important to note
that Rule 56(1) does not
mandatorily require that a copy
of the judgment sought to be
reviewed should be filed
alongside the application for
review. What is required is the
statement of case setting out
fully the reasons for the
review.
The late receipt of the copies
of the judgment can therefore
not justify an applicant’s
failure to file a statement of
his case.
Next the allegation that the
decision of the ordinary bench
of this court is in violation of
section 93(2) of the
Administration of Estates Act,
1961 (Act 63), has not been
sufficiently made out to
convince us that there is a
genuine legal issue warranting a
review. For what were the
findings of the trial High Court
in respect of that issue and how
did the Court of Appeal treat
that finding, and how did the
Ordinary bench of the Supreme
Court arrive at its alleged
decision in relation to that
issue? It is important to note
that whenever a party intends to
impugn the legality of a
decision of a Superior Court,
the pleadings of that party must
sufficiently disclose enough
materials to demonstrate on the
face of his pleadings that that
decision was wrongly made and
deserve to be set aside. For a
mere allegation, as in the
instant case, that there is a
legal issue weighty enough to
vitiate a decision is not enough
to found our review
jurisdiction. As Adade JSC said
in Mechanical Lloyd’s case
supra, “the mere fact that a
judgment can be criticized is no
ground for asking that it should
be reviewed”. Indeed in this
case, although the plaintiff
sought in his claim to set aside
the sale alleged to be by the
1st defendant alone, the
co-plaintiff in his statement of
claim filed on 5th February 1986
pleaded in paragraph 6 thereof
that the property was sold by
the 1st defendant and his
brother Yahya Seidu. The said
paragraph reads:
“6. Meanwhile in or about June
1978 following upon the death
intestate of their father the
late Chief Seidu in or about
January 1979 the first defendant
and his brother, without any
lawful customary authority and
without taking letters of
administration of their father’s
estate, purported unlawfully to
sell the said property to the
2nd defendant, who has so far
not registered his purported
purchase under the Land Registry
Act 1962 (Act 122).”
Furthermore the record of
proceedings brought before the
ordinary bench in this case
disclose that before the
plaintiff and co-plaintiff
launched their instant action,
the High Court, Accra had given
judgment on 10th July 1980 in
suit No.174/80 titled: Alhaji
Abubakari vrs, Amadu Baba, Yahya
Seidu and Osmanu Alhassan in
respect of the sale of this
house by Amadu Baba and Yahya
Seidu. No appeal was lodged
against this judgment, and same
was held in the instant suit to
be binding on the plaintiff and
co-plaintiff herein. Thus if
even the plaintiff and
co-plaintiff succeed in their
alleged legal point there would
still be the subsisting 1980
judgment. It follows therefore
that no useful purpose would be
served by entertaining the
intended incompetent review
application, which seeks to set
aside the judgment in the
instant suit.
The instant suit started in 1981
at the Accra High Court, with
the plaintiff and co-plaintiff
losing at every stage of the
litigation up to and including
the Supreme Court. There must be
an end to litigation. And this
over twenty years old litigation
is not an exception to this
demand.
Rules of Court are not triflings
in the judicial process for one
to manipulate at his own
convenience and to the hardship
of the other. They are essential
prerequisites in the
administration of justice
without which there can be no
sanity in the proceedings of a
Court. The guiding principle in
waiving non-compliance has been
whether the non-compliance was
not due to any willful conduct
on the part of the defaulting
party, and that whether in the
interest of justice, the
non-compliance should be waived.
In the instance case, as stated
earlier, the Plaintiff and
Co-plaintiff, have not even
applied to waive their
non-compliance. They contend
that they are justified in
filling their statement of case
“within normal time after the
co-defend obtained a certified
copy judgment.” Rule 56(1) does
not provide for any such normal
time. There have been instances
where this court had waived
non-compliance when satisfied
that a proper case had been made
for the waiver, and other
occasions when the Court had
refused to waive. (See, Republic
vrs. High Court, Kumasi; ex
parte Atumfuwa, (2000) SCGLR
72.) In this case no proper case
had been made to persuade us to
exercise our discretion in
favour of the plaintiff and
co-plaintiff.
We are indeed satisfied that the
defense to the preliminary
objection is untenable and
wholly misconceived. The
preliminary objection therefore
succeeds, and we refuse the
Plaintiff and Co-plaintiff’s
application to amend their
statement of case. Since the
review application is
incompetent, we have no option
but to strike same out.
In the end the application for
review is struck out.
E. K. WIREDU
CHIEF JUSTICE
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT.
S. A. B AKUFFO
JUSTICE OF THE SUPREME COURT.
D. K. AFREH
JUSTICE OF THE SUPREME COURT.
DR. SETH TWUM
JUSTICE OF THE SUPREME COURT.
COUNSEL
MR. ADUMUAH BOSSMAN FOR THE
APPLICANT
MR. SOMUAH ASAMOAH FOR THE 2ND
DEFENDANT/RESPONDENT |
