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RULING
MRS. J. BAMFORD-ADDO, J.S.C.:
This is a motion for special
leave to a Appeal to the Supreme
Court under Article 131(2) of
the 1992 Constitution.
The Appellate jurisdiction of
the Supreme Court can be found
in Article 131 clauses (1) and 2
thereof which provides as
follows:
"Article 131.(1) An appeal shall
be 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 leave of the Court of
Appeal, 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.
(2) 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."
The right of Appeal in Article
131(1)(a) is as of right but
that under (1)(b) requires leave
from the Court of Appeal. If
refused application could be
made for special leave under
Article 131(2). The application
for special leave where leave
has been refused by the Court of
Appeal is governed by Rule 7(2)
of C.I. 16. Rule 7(4) governs an
application for special leave
made straight to the Supreme
Court as permitted in Article
131(2) of the Constitution.
Whereas in the grant of special
leave under Rule 7(2) time limit
of 14 days was prescribed, that
under Rule 7(4) provides no time
limit:
Rule 7(4) states:
"Notwithstanding sub rules (1)
to (3) of this rule an
application for special leave to
appeal under clause (2) of
Article 131 shall be entertained
by the court and the court may
grant leave on such terms as the
court may consider fit having
regard to the circumstances of
the case."
In this present case the
judgment of the Court of Appeal
against which appeal is sought
is dated 23rd December 1999 and
the applicant had 14 days
therefrom to apply to the Court
of Appeal for leave to appeal to
the Supreme Court under Rule
7(1) C.I. 16, since the case
commenced in the Circuit Court.
Applicant failed to apply for
leave to appeal within the
specified limitation period to
the Court of Appeal. According
to him his failure to comply,
with the rule was due to the
fact that he had to look for a
lawyer and then his lawyer first
applied to the Court of Appeal
for Stay of Execution which was
dismissed before realising that
Application should have been
made within 14 days which time
had by then already passed.
It was after the dismissal of
the Stay of Execution that
Applicant's counsel realised
that he was out of time and
could not therefore apply for
leave under Rules 7(1) or 7(2)
as the time limited for applying
had expired. Since as was held
in Imbeah v. Ababio (2000) SC
GLR 259 the taking of a false
step by an applicant does not
prevent time from running
against him, the applicant had
no alternative than to availed
himself of Rule 7(4) of C.I. 16
which provided no time limit and
applied directly to this Court
for special leave to appeal.
According to Mr. Ahenkorah,
counsel for Applicant, not
having availed himself of Rules
7(1) and (2) he was entitled to
apply to the Supreme Court for
special leave under Rule 7(4) of
C.I. 1 6.
Mr. Awere for Respondent opposed
the application for special
leave on the grounds that where
the right of Appeal is given,
invariably time limit for
appealing is imposed, otherwise
a victorious party cannot
celebrate his victory. He
submitted that the time limit of
14 days within which to apply
for leave or special leave under
Rules 7(1) and (2) should apply
to also cases where leave is
sought under Rule 7(4) even
though no time limit was
specified under that rule, which
left the matter at large. The
special leave referred to by
Article 131(2) and Rule 7(4)
C.I. 16 is very special indeed
and it is also unfettered by any
rules or law since the grant of
leave was left entirely at the
discretion of the Supreme Court.
This leave is under S.4 (5) of
the Courts Act 1993 459 not
subject to any condition of
Appeal in the rules of Court
C.I. 16. It is a special favour
which is given to litigants who
have good and valid appeals to
enable them to appeal even
though they are under the rules
out of time within which to
appeal so as to prevent a
failure of justice. The
conditions and guidelines for
the grant of the said special
leave was discussed in the case
of Dolphyne (No.2) v. Speedline
Stevedoring Co. Ltd. (1996-97)
SC. GLR 373 where it was held
that:
"The provision in Article 131(2)
of the 1992 Constitution must
govern the provisions of Article
131(1)(a) and (b). The word
"Notwithstanding in Article
131(2) meant that without being
affected by the provisions of
Article 131(1), the Supreme
Court might entertain an
application for special leave to
appeal in respect of appeals
from any decision or judgment of
the Court of Appeal and no other
court. Thus the Supreme Court
might in appropriate cases
ignore the provision of Article
131(1) and grant special leave
to appeal bearing in mind the
facts of each case and need to
prevent a failure of justice . .
. . . . . .”
Holding 2:
"In exercising its unfettered
discretion under Article 131(2)
of the 1992 Constitution the
Supreme Court was not bound by
any rules of practice or
procedure nor any legislation"
Holding 3:
"The principles to be applied as
guides - on which the Supreme
Court might determine whether to
grant leave to appeal or not
were:
(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.
Nimoh v. Dadzie (1962) GLR 327
applied"
The Dolphyne case did not
specify a time limit within
which an application for special
leave could be brought but as
stated by Charles
Hayfron-Benjamin J.S.C in his
dictum at p.378 of the report:
"This court being the highest
court of the land must
necessarily be vested with
unfettered discretion to do
justice in appropriate cases and
that is the true intendment of
Article 131(2) of the 1992
Constitution."
I agree with him on this. As I
understand holding (2) above, it
refers to the "unfettered
discretion" of the Supreme
Court, to grant special leave.
Since no conditions were imposed
under the rules and the matter
was left at large in Article
131(2) and Rule 7(4), 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." See the dictum of Bowen
L.J. in the English case of In
Re Manchester Economic Building
Society (1883) 24 Ch. D 488 at
503, which was quoted with
approval in the Dolphyne case
supra. Bowen L.J. stated:
" . . . . . . . . . . . The
Rules leave the matter at large.
Of course it is to be exercised
in the way in which judicial
power and discretion ought to be
exercised, upon principles which
are well understood but which
had better not be defined in a
case except to far as may be
necessary for the decision of
that case - otherwise there is
great danger, as it seems to me,
of crystallizing into a rigid
definition that judicial power
and discretion which the
Legislature and Rules of the
Court have for the best of all
reasons left undetermined and
unfettered. If the Appellant is
asking for what is evidently
unjust it is clear that he ought
not to have it; if he is asking
for what may lead to injustice
he ought not have it except on
the terms which would prevent
any injustice possibly being
done, and for that reason, if
any of the Respondents here has
shewn that injustice was likely
to arise in their particular
case, I think terms ought to
have been imposed, but if the
person who is asking for leave
to appeal after twenty-one days
is only asking for what is just,
why should not he have it?"
The time within which an
application for special leave
under Rule 7(4) can be brought
as I said depends on the
discretion of the Supreme Court,
and the Court must also be
satisfied that the case involves
a substantial question of law or
is in the public interest. The
principles to be applied are as
set out in Holding 3 above in
the Dolphyne case supra. But
quite apart from the guidelines
provided in that case I hold the
view that the court's discretion
must be judicially and
reasonably exercised considering
such other matters as public
policy, and other principles
concerning the necessity for
finality in litigation as well
as the need for prevention of
delay in the administration of
justice. Bearing in mind that
inordinate delay in pursuing an
appeal could adversely affect
the acquired rights of other
parties with consequent
injustice to them. In Allen v.
Sir Alfred Mac Alpine and Sons
Ltd. (1968) 2 QB 299; 2 WLR 306
Court of Appeal at p.371 per
Lord Denning MR.
"The principle upon which we go
is clear when the delay is
prolonged and inexcusable and is
such as to do grave injustice to
one side or the other or to
both, the court may in its
discretion dismiss the action
straight away leaving the
plaintiff to his remedy against
his own Solicitor who has
brought him to his plight"
As to the principle that
litigation must come to an end
Apaloo J. stated in the case of
Agyilihav v. Tayee (1975) 1 GLR
433 that:
"In any event one should hold
that the conclusion of a case by
pronouncement of a decision must
exhaust the exercise of the
courts jurisdiction over the
eadem res. A court might not in
principle be held to have
perpetual jurisdiction over the
same matter."
It is for this reason that
normally time limits are fixed
in rules governing court
procedures. Example is that in
granting extension of the time,
limitation is imposed and in
this regard see Rule 8 of C.I.
16 which provided that an appeal
cannot be filed within a total
of 6 months time limit from the
date of the decision sought to
be appealed. This is designed to
avoid delay in litigation and to
enable courts to administer
swift justice. The case of
Darkwa and Others v. Kwabi IV
(1992-93) GBR. P.380 per Wuaku
J.S.C. (as he then was),
highlights these objectives. It
was held there that:
"The rules must prima facie be
obeyed otherwise, as it was held
by the Privy Council in Ratnam
v. Cumarasamy (1965) 1 WLR 8 PC,
a party would have unqualified
right to extension which would
defeat the purpose of the rules
which was to provide a
time-table for litigation. See
also the case of Revici v.
Prentice Hall Incorporated
(1969) 1 WLR 157 CA."
It seems to me that if only 6
months time limit is allowed in
an ordinary Civil Appeal where
the Appellant has been diligent
in applying for extension of
time to enable him to appeal, it
would be proper and fair for
this court to take this
particular point into account
when exercising its discretion
on account of time to grant
special leave, of course
depending on the circumstances
of each particular case. In some
cases 6 months time limit ought
be just and reasonable while in
others admittedly longer period
of time ought to be allowed. It
would be just however to ensure
that indolent litigants are not
allowed to benefit from their
sloth to the disadvantage of the
vigilant litigant. This is a
balancing act which the courts
have always performed creditably
and admirably.
Considering the grounds of
appeal there appears to be prima
facie errors on the face of the
judgment of the Court of Appeal,
and a decision of the Supreme
Court on those issues I think
would enure to the benefit of
the public.
Further the applicant attributes
the reason for the delay in
applying for leave to his
lawyer. He said in Pars 8 - 9 of
his affidavit that:
"8. That on contacting the
lawyer he informed me that while
busy working on the motion for
Stay of Execution it had escape
his mind that this is a case
commenced in a Circuit Court
which is below the High Court so
I cannot appeal to the Supreme
Court as of right but I require
leave of the Court of Appeal or
special leave of the Supreme
Court before an appeal could be
filed by me.
9. That I then asked him to
seek the necessary leave to
enable the appeal to be filed
but he told me that by that date
11th of this month the time for
applying for leave from the
Court of Appeal had expired and
so the only thing left was for
me to apply for special leave of
the Supreme Court to make the
appeal, hence this application"
If so, then it would be unfair
to penalize the Applicant for
the mistake of his counsel who
instead of first, applying for
leave, rather wasted time
applying for Stay of Execution.
In the case of Frimpong v.
Nyarko (1998-99) SC GLR p.734 at
holding (5) it was held that a
party is generally not to be
penalized for the misconduct of
a court official. See also the
English case of Gatti v.
Shoosmith (1939) 1 Ch.841 at
p.845-846 the Court of Appeal
per Sir Wilfred Greene M.R.
said:
"On the consideration of the
whole matter in my opinion under
the rule as it now stands, the
fact that the omission to appeal
in due time was due to the
mistake on the part of a legal
adviser, may be a sufficient
cause to justify the Court in
exercising its discretion. I say
"may be," because it is not to
be thought that it will
necessarily be exercised in
every set of facts. Under the
law as it was conceived to be
before the amendment, such a
mistake was considered to be in
no circumstances a sufficient
ground. What I venture to think
the proper rule which this Court
must follow is: that there is
nothing in the nature of such a
mistake to exclude it from being
a proper ground for allowing the
appeal to be effective though
out of time; and whether the
matter shall be so treated must
depend upon the facts of each
individual case. There may be
facts in a case which would make
it unjust to allow the appellant
to succeed upon that argument.
The discretion of the Court
being, as I conceive it, a
perfectly free one, the only
question is whether, upon the
facts of this particular case,
that discretion should be
exercised, I should have thought
it was this one. We are not, I
think concerned here with any
question at all as to the merits
of this case or the probability
of success or otherwise. The
reason for the appellant's
failure to institute his appeal
in due time as a mere
misunderstanding, deposed to on
affidavit by the managing clerk
of the appellant's solicitors -
a misunderstanding which, to
anyone who was reading the rule
without having the authorities
in mind, might very well have
arisen. The period involved is a
very short one, it is only a
matter of a few days, and the
appellant's solicitors, within
time, informed the respondent's
solicitors by letter of their
client's intention to appeal.
That was done within the strict
time, and the fact that the
notice of appeal was not served
within the strict time was due
entirely to this
misunderstanding. On the facts
of this case, it appears to me
that the case is one where the
discretion of the Court ought to
be exercised, and accordingly,
leave will be given."
The above case has relevance to
this particular case. Applying
the guide lines enumerated above
and considering the
circumstances of this particular
case I am of the view that this
is a proper case in which to
exercise our discretion in
favour of the applicant and
grant him special leave to
enable him to appeal.
I will accordingly grant special
leave to applicant to appeal.
KPEGAH, J.S.C.:
I have decided to offer no
written opinion in this case but
will vote that the application
be allowed.
ADJABENG, J.S.C.:
This is an application for
special leave to appeal to this
Court against the decision of
the Court of Appeal which had
reversed the judgment of the
trial Circuit Court, Somanya,
sitting at Krobo Odumase. It is
the contention of the
Applicant's Counsel that the
Applicant has the right to be in
this Court for special leave
even though he had not first
applied to the Court of Appeal
for leave. Counsel for the
Respondent contends otherwise.
The Court of Appeal gave
judgment for the Respondent
herein on the 23rd of December,
1999, in an appeal lodged by the
Respondent against a decision
given by the said Circuit Court,
Somanya, in favour of the
Applicant herein in respect of a
piece of land in the possession
of the Applicant.
In his affidavit in support of
the application, the Applicant
deposed, inter alia, as
follows:—
"4. That after the judgment of
the Court of Appeal I decided to
engage a new lawyer to handle
the proposed appeal and related
application for stay of
execution but as the last
Christmas was only one day from
the date of the judgment and
everybody, including lawyers,
was very busy preparing for
Christmas I could not get a
lawyer before the Christmas who
would listen to me and decide if
he could be of help to me.
5. That consequently it was not
until after the Christmas that I
could get a lawyer who accepted
to handle the appeal for me but
since, as stated above, my fear
was that unless prompt steps
were taken in that direction the
judgment in favour of the
Defendant might at any time be
enforced against me I instructed
the lawyer to act quickly in
getting a motion for stay of
execution filed for me.
6. That as he was new to the
case the lawyer asked to be
given time to study the appeal
record to the Court of Appeal a
copy of which I furnished him
later as a result of that and
because his office was closed
for the Christmas holidays it
was not until 5th of this month
that he was able to give me a
motion for stay of execution
which I filed in the Court of
Appeal that same day.
7. That on filing the motion I
took a copy to Somanya that day
for service on the Defendant for
him to become aware that it was
not possible for him to enforce
the judgment given in [his]
favour on the counterclaim; . .
.
8. That on contacting the
lawyer he informed me that while
busy working on the motion for
stay of execution it had escaped
his mind that this is a case
commenced in a Circuit Court
which is below the High Court
and so I cannot appeal to the
Supreme Court as of right but I
required leave of the Court of
Appeal or special leave of the
Supreme Court before an appeal
could be filed by me.
9. That I then asked him to
seek the necessary leave to
enable the appeal to be filed
but he told me that by that
date, 11th of this month, the
time for applying for leave from
the Court of Appeal had expired
and so the only thing left was
for me to apply for special
leave of the Supreme Court to
make the appeal, hence this
application."
The Applicant has listed in his
affidavits in support of the
application more than eleven
grounds upon which he intends to
appeal. It is the Applicant's
contention that the Court of
Appeal failed to take into
account some matters in coming
to its decision. Some of these
matters as listed in the
original affidavit in support
are as follows:—
"d. The sale transaction could
not in all probability have been
in relation to part only of the
land which I was already in
occupation since the purchase
price was agreed by the two of
us at ¢50,000.00 and I fully
paid it to the Defendant for
which he issued a receipt,
although that receipt purports
to say that only part of that
land had been sold.
e. Having received full payment
allegedly for part only of the
land sold or to be sold to me,
the Defendant immediately came
under an equitable obligation to
define the extent of the land
sold or to be sold to me, if
that part was not already
defined, since I had all along
been in occupation of the whole
land and thereafter continued to
do so and that by neglecting to
expressly define the portion
sold or to be sold to me the
Defendant had impliedly
demarcated that portion by
reference to so much of it as I
thereafter to his knowledge and
without his objection, occupied
as a purchaser in possession.
f. The failure of the Defendant
to give any tangible reason for
his failure to demarcate the
portion sold or to be sold to me
when he had taken the full
purchase money from me and I had
been in possession of the whole
land without paying rent from
1989 when the 1985 tenancy
agreement was to expire
signified that he had impliedly
delivered possession of the
entire land to me as a purchaser
who had paid the full purchase
price and so fully performed all
that I was required to do under
the contract of sale.
g. As two Ghanaians, the 1986
transaction between me and the
Defendant prima facie suggested
a transaction under customary
law so as to make me owner of
the land when I had paid the
purchase money in full and had
been allowed to go into
occupation as owner by the
seller.
h. The rule, certum est qui
certum reddi in relation to the
problem of certainty, is
applicable to this case once I
had been occupying the land
since 1986 as purchaser.
i. The sheer inequitable nature
of the Defendant's counterclaim
made in 1997 for recovery of the
whole land when I had already
paid the full purchase money to
him since 1986, a whole period
of 11 years earlier, and had all
that period been in possession
and the sale transaction had not
been mutually rescinded or
abrogated and he was and is
still keeping the purchase money
thereby unjustly enriching
himself at my expense.
j. Allowing the Defendant's
counterclaim was tantamount to
enabling him to take advantage
of his own wrong of having
neglected during a whole period
of 11 years to demarcate the
part of the land sold or to be
sold to me when he had already
taken the full purchase price
from me and had every
opportunity to make such
demarcation as I was all the
time on the land and therefore
available to participate in any
such demarcation.
k. The sheer repugnancy to
equity and good conscience of
the Defendant's counterclaim
when if the extent of the land
sold or to be sold really still
remained undefined, then that
was due to his own fault and I
was completely blameless and
had, on the assumption that I
owned the land as a purchaser,
made considerable expenditure in
improving the land."
The Applicant, therefore,
deposed in paragraph 11 of his
affidavit as follows:—
"11. That I am advised by
Counsel and verily believe the
same to be true that the matters
raised above are sufficient to
show that the judgment of the
Court of Appeal must be wrong
and unfair to me since it has
deprived me, not only of the
¢50,000.00 I paid since 1986,
but also of the benefit of the
expenses I incurred in
developing the land as a
purchaser who had lawfully been
put into possession by his
vendor since 1986 or at least
since the end of April, 1989
when the tenancy agreement of
1985 was supposed to end."
The Respondent's answer to the
application is of a technical
nature. In paragraphs 4 and 5 of
his affidavit in opposition, the
Respondent has deposed as
follows:—
"4. That I am informed by my
Solicitor and I verily believe
to be true that the Applicant's
motion for special leave to
appeal was statute barred at the
time he filed the motion, since
it was not brought within the 14
days of the judgment delivered
by the Court of Appeal on the
23rd day of December, 1999.
5. That again I am informed by
solicitor and I verily believe
same to be true that the
combined effect of paragraphs
(1), (2) and (4) of Rule 7 of
C.I. 16 is that the intended
Appellant against the Court of
Appeal's judgment, who needs
special leave to appeal when the
case emanated below High Court,
as in the instant case, has 2
forums open to him, that is, he
could either go to Court of
Appeal for the said special
leave or go to Supreme Court for
the same special leave but in
any event he must do so within
14 days from the date of
judgment against which special
leave to appeal is sought from
either of the 2 forums, for,
(a) it cannot be said that in
event of special leave to appeal
to Supreme Court under Rule 7(4)
the intended Appellant has no
time limit within which he is to
seek the said leave, and
(b) it is unwarranted to say
that in procedural law
concerning appeal against a
decision or judgment the Law
Maker would not set up time
limit within which to take a
step; if this were so then a
victorious party would never
know when to celebrate and enjoy
the fruits of victory of the
litigation, and no litigation
shall ever end."
Rule 7(4) of the Supreme Court
Rules, 1996 (C.I. 16), upon
which this application is based,
provides as follows:—
"(4) Notwithstanding sub rules
(1) to (3) of this rule an
application for special leave to
appeal under clause 2 of article
131 shall be entertained by the
Court and the court may grant
leave on such terms as the Court
may consider fit having regard
to the circumstances of the
case. "
Clause 2 of article 131 of the
1992 Constitution mentioned in
sub rules (2) and (4) of rule 7
of the Supreme Court Rules, 1996
(C.I. 16), provides as follows:—
"(2) 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."
This Court had the opportunity
in the case of Dolphyne (No.2)
vrs. Speedline Stevedoring Co.
Ltd. [1996-97] SCGLR, 373, to
pronounce on the above
Constitutional provision. In the
headnote of the said report at
page 374, this Court held as
follows:—
"(1) The provision in article
131(2) of the 1992 Constitution,
must govern the provisions of
article 131(1)(a) and (b). The
word 'Notwithstanding' in
article 131(2) meant that
without being affected by the
provisions of article 131(1),
the Supreme Court might
entertain an application for
special leave to appeal in
respect of appeals from any
decision or judgment of the
Court of Appeal and no other
court. Thus the Supreme Court
might in appropriate cases
ignore the provisions of article
131 (1) and grant special leave
to appeal - bearing in mind the
facts of each case and need to
prevent a failure of justice. To
so hold would not be opening the
'floodgates' to incompetent
appeals as contended by the
Respondents in opposing the
application....
Per curiam. In . . . our opinion
. . . application to this court
for special leave to appeal from
a decision of the Court of
Appeal cannot be considered a
fruitless second bite at the
cherry. This court being the
highest court of the land must
necessarily be vested with
unfettered discretion to do
justice in appropriate cases and
that is the true intendment of
article 131(2) of the 1992
Constitution."
The guiding principles which
ought to be applied in granting
such an application for special
leave to appeal have also been
stated by this Court in its
holding (3) in the said Dolphyne
case (supra). Holding (3) states
as follows:—
"(3) The principles - to be
applied as guides - on which the
Supreme Court might determine
whether to grant special leave
to appeal or not were:
(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.
Nyimoh vrs. Dadzie [1962] 1 GLR
327 applied.
Per curiam. We would .... like
to observe a close similarity
between the grounds for the
grant of special leave as
enunciated in Nyimoh ver. Dadzie
(supra) and article 131(1)(b) of
the 1992 Constitution where in
granting leave, the Court of
Appeal might be 'satisfied that
the case involves a substantial
question of law or is in the
public interest' ."
It is quite clear from sub-rule
4 of Rule 7 of the Supreme Court
Rules, 1996 (C.I. 16), and from
its parent provision, article
131(2), both quoted above, that
the Supreme Court has an
unfettered discretion to grant
an application for special leave
to appeal in appropriate cases.
This, as correctly held by this
court in the Dolphyne case,
quoted above, is to enable this
Court, being the highest court
of the land, to have unfettered
discretion to do justice in
appropriate cases in order to
prevent a failure of justice or
injustice. And this discretion
is not to be affected by the
time limit of 14 days mentioned
in Rule 7(1) and (2) of C.I. 16.
It means therefore that the
Supreme Court can grant an
application for special leave to
appeal from a decision of the
Court of Appeal even though it
was not filed within 14 days
from the date of the judgment or
order sought to be appealed
against, or even if the
prospective appellant had failed
to first apply to the Court of
Appeal. That is the meaning of
article 131(2) of the 1992
Constitution, and Rule 7(4) of
C.I. 16.
In the light of the above, it is
clear that the contention of the
Respondent's Counsel in the
present application before us
that this Court cannot entertain
this application since it was
not filed within 14 days is
untenable. No time limit has
been set under Rule 7(4) or
article 131(2) of the
Constitution.
This Court also held in its
holding (2) in the Dolphyne case
(supra) that
“(2) In exercising its
unfettered discretion under
article 131(2) of the 1992
Constitution, the Supreme Court
was not bound by any rules of
practice or procedure nor any
legislation.”
At first, I thought that the
above pronouncement was too wide
as an appeal ought to be brought
within a limited period
according to the rules and that
if it is not brought within that
period it cannot be a valid
appeal. For example, including
the period within which the
Court can extend the period, an
appeal must be brought within
six(6) months from the date of
the judgment or order appealed
against. See Rule 8 of the
Supreme Court Rules, 1996 (C.I.
16). However, on reading
carefully section 4 of the
Courts Act, 1993 (Act 459),
which section deals with this
court’s appellate jurisdiction,
I have come to the conclusion
that this court's said
pronouncement in its holding (2)
in Dolphyne case, quoted above,
is correct. That is to say that
under article 131(2) of the 1992
Constitution, and under its
reproduced one in section 4(2)
of the Courts Act, 1993 (Act
459) and in Rule 7(4) of the
Supreme Court Rules, 1996 (C.I.
16), this Court has an
unfettered discretion to grant
an application for special leave
to appeal to the Supreme Court
from any decision of the Court
of Appeal, and that in
exercising this discretion, the
Court is not bound by any rules
of practice or procedure or any
legislation. I say so firstly
because article 131(2) of the
Constitution does not prescribe
any restriction, condition or
time limit in respect of the
exercise of the discretion given
under it. Secondly, the Court’s
Act, 1993, (Act 459), which
reproduces the above
constitutional provision in its
section 4(2), also does not
impose any restriction in the
exercise of the discretion given
to the Court. But, more
importantly, subsection 5 of
section 4 of the said Court’s
Act, Act 459, which prescribes
that "the Supreme Court shall
not entertain any appeal unless
the appellant has fulfilled all
the conditions of appeal
prescribed under the Rules of
Court", exempts subsection 2 of
the Court’s Act from any such
conditions. In other words, the
Court’s discretion to grant
special leave to appeal under
article 131(2), of the
Constitution, section 4(2) of
the Courts Act, and rule 7(4) of
the Supreme Court Rules is not
subject to any conditions of
appeal prescribed under the
Rules of Court. Consequently,
all the conditions listed in
Rule 8 of the Supreme Court
Rules, 1996 (C.I. 16) including
time limits, would not apply
when this court is exercising
its discretion to grant special
leave to appeal under article
131(2) of the Constitution, or
the Courts Act, or under the
Rules.
Having come to the conclusion
that this Court can entertain
the present application before
the Court, I must now consider
whether or not the application
merits the exercise of our
discretion. In my view, the
Applicant has raised serious
legal questions about the
judgment of the Court of Appeal
which ought to be considered on
appeal by this Court. And in
order not to prejudice the
appeal which is yet to be filed,
I do not intend to go into
details. I would only say that
after reading the judgment of
the Court of Appeal and the
grounds stated in the
Applicant’s original and
supplementary affidavits, I am
of the view that there was
evidence that the Respondent
took money from the Applicant
and issued a receipt on it in
which he stated that the money
was the purchase price for land
he had sold to the Applicant. It
does not seem that the Court of
Appeal gave this issue the
serious consideration it
deserved, especially when there
was evidence that the Applicant
was in possession of the
property for a long time. Nor
did the court seem to have given
the receipt issued by the
Respondent the correct
appreciation.
Moreover, I strongly believe
that it would be unjust to blame
the Applicant personally for the
difficulties in which he found
himself. The one who brought
about these difficulties is the
Applicant’s solicitor. He filed
the wrong application, an
application for stay of
execution of the judgment, when
the proper thing to file in such
circumstances would be either a
notice of appeal or an
application for leave to appeal.
In this case the Applicant’s
lawyer should have filed an
application for leave to appeal
since the action started from
the Circuit Court and not the
High Court. If the application
filed at the Court of Appeal on
5th of January, 2000, was the
proper application, that is, for
leave to appeal, it would have
been within the 14 days required
by the rules since the judgment
of the Court of Appeal was
delivered on the 23rd day of
December, 1999. This shows that
the Applicant went to see the
lawyer early but the lawyer who
should know what application to
file, and not the Applicant who
engaged him, filed the wrong
application within time. It
would be most unjust in the
circumstances to blame the
Applicant and deny him his right
to appeal even though he seems
to have a good case. In the
English case of Gatti vrs.
Shoosmith [1939] 1 Ch. 845-46,
the English Court of Appeal
said:
"On consideration of the whole
matter, in my opinion under the
rule as it now stands, the fact
that the omission to appeal in
due time was due to a mistake on
the part of a legal adviser, may
be a sufficient cause to justify
the Court in exercising its
discretion."
From the reasons given above, I
am of the firm view that this is
a proper case in which this
Court ought to exercise its
discretion under article 131(2)
of the 1992 Constitution, and
Rule 7(4) of C.I. 16 in favour
of the Applicant and grant him
special leave to appeal.
I would therefore grant the
application.
ACQUAH, J.S.C.:
My Lords, the issue for
consideration in this ruling is
whether an application for
special leave to appeal to the
Supreme Court under article
131(2) of the 1992 Constitution
is regulated by time. But first
the background of the case.
One Joseph Kotey, the applicant
in this application, issued a
writ of summons on the 8th
January 1997 at the Somanya
Circuit Court against Peter Kofi
Koletey for the following
relief:
"The plaintiff's claim from the
defendant is for specific
performance of the agreement for
the sale of a plot of land at
Ahiawoma at Somanya Zongo
opposite to SSNIT office at
Somanya being an area measuring
100 x 100 feet where plaintiff
has been moulding cement blocks
for sale. Defendant has give
possession but refuses to
execute an indenture in favour
of plaintiff".
The defendant, on the other hand
counter-claimed in respect of
the same land for
1. Declaration of title to the
land described in paragraph 3
above,
2. Damages for breach of
contract,
3. Damages for trespass of law
described in paragraph 3,
4. Recovery of possession, and
5. Perpetual Injunction
restraining the plaintiff, his
workmen, servants assigns and
agents from entering or
remaining on the land in
dispute.
On 19th August 1998 the trial
circuit court judge gave
judgment for the plaintiff and
dismissed the defendant's
counter-claim. The Court of
Appeal on 23rd December 1999
allowed the appeal of the
defendant and entered judgment
for the defendant on his
counter-claim for ¢500,000
damages for breach of contract,
and damages for trespass. The
damages for trespass was
assessed as the arrears of rent
from the expiration of the lease
agreement to the date of
judgment. What happened
thereafter is narrated by the
plaintiff in paragraphs 3 to 9
of his affidavit filed on 17th
January 2000 in support of his
application for special leave:
"3. That not being satisfied
with the judgment of the Court
of Appeal I desired to appeal to
the Supreme Court, but in view
of the Court of Appeal judgment
in favour of the defendant on
his counterclaim against me my
immediate concern was to obtain
an order of stay of execution
from the Court of Appeal against
enforcement of its judgment
since I entertained the fear
that the defendant might seek to
enforce it against me before the
appeal contemplated by me could
be filed.
4. That, after the judgment of
the Court of Appeal I decided to
engage a new lawyer to handle
the proposed appeal and related
application for stay of
execution but as the last
Christmas was only one day from
the date of the judgment and
everybody, including lawyers,
was very busy preparing for the
Christmas I could not get a
lawyer before the Christmas who
would listen to me and decide if
he could be of help to me.
5. That consequently it was not
until after the Christmas that I
could get a lawyer who accepted
to handle the appeal for me but
since, as stated above, my fear
was that unless prompt steps
were taken in that direction the
judgment in favour of the
defendant might at any time be
enforced against me I instructed
the lawyer to act quickly in
getting a motion for stay of
execution filed for me.
6. That as he was new to the
case the lawyer asked to be
given time to study the appeal
record to the Court of Appeal a
copy of which I furnished him
later as a result of that and
because his office was closed
for the Christmas holidays it
was not until 5th of this month
that he was able to give me a
motion for stay of execution
which I filed in the Court of
Appeal that same day.
7. That on filing the motion I
took a copy to Somanya that day
for service on the defendant for
him to become aware that it was
not possible for him to enforce
the judgment given in his favour
on the counterclaim; it was
after I had done these I went
back to the lawyer to collect
and file the papers for the
appeal to the Supreme Court
which I had proposed to make.
8. That on contracting the
lawyer he informed me that while
busy working on the motion for
stay of execution it had escaped
his mind that this is a case
commenced in a Circuit Court
which is below the High Court
and so I cannot appeal to the
Supreme Court as of right but I
required leave of the Court of
Appeal or special leave of the
Supreme Court before an appeal
could be filed by me.
9. That I then asked him to seek
the necessary leave to enable
the appeal to be filed but he
told me that by that date, 11th
of this month, the time for
applying for leave from the
Court of Appeal had expired and
so the only thing left was for
me to apply for special leave of
the Supreme Court to make the
appeal, hence this application".
In his affidavit filed on 28th
February 2000 opposing the
application, particularly at
paragraphs 4 and 5, he averred:
"4. That I am informed by my
solicitor and verily believe to
be true that all the facts
stated in the supporting
affidavit of the Applicant's
motion do not constitute grounds
for seeking the special leave of
this Honourable Court to appeal.
5. That again I am informed by
solicitor and I verily believe
same to be true that the
combined effect of paragraphs
(1), (2) and (4) of Rule 7 of
C.I. 16 is that the intended
appellant against the Court of
Appeal's judgment, who needs
special leave to appeal when the
case emanated below High Court,
as in the instance case, has 2
forums open to him, that is, he
could either go to Court of
Appeal for the said special
leave or go to Supreme Court for
the same special leave but in
any event he must do so within
14 days from the date of
judgment against which special
leave to appeal is sought from
either of the 2 forums, for,
(a) it cannot be said that in
event of special leave to appeal
to Supreme Court under Rule 7(4)
the intended appellant has no
time limit within which he is to
seek the said leave, and
(b) it is unwarranted to say
that in procedural law
concerning appeal against a
decision of judgment the Law
Maker would not set up time
limit within which to take a
step, if this were so then a
victorious party would never
known when to celebrate and
enjoy the fruits of victory of
the litigation, and no
litigation shall ever end".
The defendant's objection
therefore is that the plaintiff
ought to have come within 14
days from the date the Court of
Appeal delivered its judgment,
which was 23rd December.
Now from the facts, this is a
case which emanated from the
Circuit Court, that is, a court
below the High Court and
therefore appeal from the
judgment of the Court of Appeal
is required by article 131(1)(b)
of the constitution to be with
the leave of the Court of
Appeal. And regulation 7(1) of
Supreme Court Rules 1996 C.I. 16
governs applications for such
leave. The rule reads:
"7(1) An application for leave
to appeal under paragraph (b) of
clause (1) of article 131 of the
constitution shall be by motion
on notice in the Form 2 set out
in Part 1 of the Schedule to
these Rules and 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".
Thus the leave to appeal under
article 131(1)(b) must be filed
within 14 days. But as the
applicant herein concedes he had
not complied with this
requirement and therefore now
seeks special leave under
article 131(2).
Application for special leave to
appeal is provided in regulation
7(2) and 7(4) of C.I. 16 these
rules read:
"7(2) An application for special
leave to appeal under clause (2)
of article 131 of the
constitution shall be by motion
on notice in the Form 3 set out
in Part 1 of the Schedule to
these Rules, and shall be filed
with the Registrar of the Court
within 14 days of the refusal of
the Court below to grant leave
to appeal.
(4) Notwithstanding sub rules
(1) to (3) of this rule an
application for special leave to
appeal under clause (2) of
article 131 shall be entertained
by the Court and the Court may
grant leave on such terms as the
court may consider fit having
regard to the circumstances of
the case".
What is the import of these two
regulations both of which talk
of special leave under article
131(2) of the Constitution?
It is indeed important to
appreciate that the concept of
granting special leave to appeal
is not new in our jurisprudence.
It existed in the Courts Act
1950 (CA. 9) section 8(1)
proviso (a)(I) wherein the High
Court had power under certain
circumstances to grant special
leave to appeal to the then
Supreme Court. And in the case
of the Supreme Court's power to
grant special leave, the 1969
Constitution granted same in
article 105(4), the 1979
Constitution in its article
117(2), while as we have seen,
the 1992 Constitution granted
the same power in article
131(2). The language of the
constitutional provisions in the
1960, 1979 and 1992 Constitution
in respect of special leave to
appeal are the same.
However, the Supreme Court Rules
1970 (now repealed) regulation 7
thereof which dealt with appeals
by leave and special leave under
the 1969 constitution, did not
have any regulation like
regulation 7(4) of the present
C.I. 16. The whole of regulation
7 of C.I. 13 read:
"7.(1) An application for leave
to appeal pursuant to the
provisions of paragraph (c) of
clause (1) of article 105 of the
Constitution shall be by motion
on notice in the Form 2 set out
in the first Schedule to these
Rules which 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.
(2) An application for special
leave to appeal pursuant to the
provisions of clause (2) of
article 105 of the Constitution
shall be by motion on notice in
the Form 3 set out in the First
Schedule to these Rules, which
shall be filed with the
Registrar of the Court within
fourteen days of the refusal of
the court below to grant leave
to appeal.
(3) Whole leave to appeal is
granted the appellant shall file
a notice of appeal in accordance
with the provisions of these
Rules".
Rule 7(2) of C.I. 16 therefore
made it clear that the Supreme
Court's power to grant special
leave as provided in article
105(2) of the 1969 Constitution
ought to be invoked within
fourteen days from the date the
court below refused an
application for leave. As to
whether regulation 7(2) of C.I.
16 really expressed the intent
of article 105(2) of the 1969
Constitution is now an academic
matter.
As said earlier on, regulation 7
of C.I 16 which regulates
appeals by leave and special
leave has two provisions on
special leave, that is, 7(2) and
7(4).
Regulation 7(2) of C.I. 16 in
plain language provides that an
application for special leave
under article 131(2) should be
filed within fourteen days from
the date the court below refused
to grant leave to appeal. Read
alongside article 131(1)(b) -
the provision that grants leave
to appeal in cases where the
suit began in court lower than
the High Court - it shows that a
person who has been refused
leave to appeal in 131(1)(b) may
come to the Supreme Court only
by asking for special leave
under regulation 7(2). And in
such circumstances the
application for special leave
must be filed within 14 days
from the date the Court of
Appeal refused to grant leave to
appeal.
But then 7(4) also provides that
notwithstanding 7(1)(2) and (3),
the Supreme Court may entertain
an application for special leave
under article 131(2) on such
terms as the court may consider
fit. It is this regulation 7(4)
which obviously gives power to
grant special leave if even the
applicant has not complied with
regulations 7(1) (2) and (3).
Regulation 7(4) is really in
line with section 4(5) of the
courts Act 1993 act 459 which
empowers the Supreme Court to
entertain an application for
special leave even if he has
fulfilled all the conditions of
appeals imposed on him. For
section 4(2) of Act 459
reproduces article 131(2) which
confers the power to grant
special leave. And to ensure
that the Supreme Court's
exercise of this power is not
circumscribed by any procedural
requirement section 4(5) of Act
459 provides:
"4(5) subject to sub-section (2)
of this section, the Supreme
Court shall not entertain any
appeal unless the appellant has
fulfilled all the conditions of
appeal prescribed under the
rules of Court".
It is clear therefore that in
the face of section 4(5) of Act
459, a subsidiary legislation
like C.I. 16 cannot impose any
limitations on the Supreme
Court's power to grant special
leave under article 131 (2).
Applications for special leave
may therefore under C.I. 16, be
brought either under regulation
7(2) or 7(4). An application for
special leave under regulation
7(2) is meant for the situation
where the suit originated from a
court lower than the High Court,
and the Court of Appeal has
refused to grant leave to appeal
to the Supreme Court. In such a
situation one has to initiate
his application for special
leave within 14 days from the
date the Court of Appeal refused
to grant leave. If not the
applicant is out of court.
Applicants for special leave
under regulation 7(4) of C.I. 16
are those brought in pursuance
of article 131(2) of the
Constitution. Such applications
are not regulated by time nor
affected by the applicant's
non-fulfillment of all the
conditions of appeal.
This is a very potent power
given to the highest court of
the land to exercise it in the
supreme interest of justice in a
fit and proper situation. The
power is not in any way meant to
negate the time honoured
principle that there should be
an end to litigation.
Accordingly, an applicant who
applies to the Supreme Court for
special leave under 131(2) must
in my view satisfy the Supreme
Court.
i. Why he did not avail
himself/herself of the usual
rights of appeal (i.e. as of
right and by leave) provided
ii. Why he should be granted
such special indulgence. In this
connection the applicant must
pass the tests set out in
Dolphyne (No.2) vrs. Speedline
Stevedoring Co. Ltd. (1996-97)
SCGLR 373.
In the instant case, the
applicant makes it clear that he
is out of time and therefore
seeks special leave under
article 131(2). From his
affidavit in support of his
application, it is clear that he
has undoubtedly committed some
procedural blunders. But he has
not relaxed in his efforts to
pursue his rights. Looking at
the time the Court of Appeal
delivered its judgment and the
closeness of the time within
which he had relentlessly being
seeking to appeal against that
judgment, it would be unfair to
deny him this request.
Accordingly, I would also grant
him special leave.
ATUGUBA, J S C.:
As the facts of this application
have been fully stated in the
opinions which have preceded
mine I am relieved from
restating them save where
necessary.
The application is for special
leave to appeal to this Court.
The applicant did not previously
apply to the Court of Appeal for
leave to appeal to this Court,
without success, and therefore
rule 7(2) of C.I. 16 does not
apply. That rule provides
"(2) An application for special
leave to appeal under clause (2)
of article 131 of the
Constitution shall be by motion
on notice in the Form 3 set out
in Part I of the schedule to
these Rules, and shall be filed
with the Registrar of the Court
within fourteen days of the
refusal of the court below to
grant leave to appeal".
The applicable rule to this
application therefore is rule
7(4) which provides:
"(4) Notwithstanding sub rules
(1) to (3) of this rule an
application for special leave to
appeal under clause (2) of
article 131 shall be entertained
by the court and the court may
grant leave on such terms as the
court may consider fit having
regard to the circumstances of
the case". (e.s)
The wording of this rule must be
contrasted with that of article
131(2) of the Constitution
itself, as follows:
"(2) 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".
In view of the discretionary
terms in which this court's
jurisdiction is expressed under
article 131(2) of the
Constitution I would read the
words "... shall be entertained
by the court..." in rule 7(4) of
C.I. 16 as if they were "shall
be capable of being
entertained", since it could not
have been the intention of the
Rules of Court committee to
derogate from the provisions of
article 131(2) of the
Constitution. Rule 7(4)
therefore is only enabling and
discretionary. Rules 7(1) to (4)
of C.I. 16 show that the Rules
Committee intended to follow the
Constitutional pattern for
special leave under article
131(2) of the Constitution. Rule
7(4) does not stipulate any time
limit for bringing an
application for special leave to
appeal to this court. This is a
casus omissus. But a casus
omissus in a statute may be
intentional, see AZORBLIE V.
ANKRAH II (1984-86) NYARKO V.
LUTTERODT (1984-86)1 GLR 437
C.A. and NAIR V. TEIK (1967) 2
All ER 34 P.C. Also, in REPUBLIC
V. HIGH COURT, ACCRA EX PARTE
DARKE XII (1992) 2 GLR 688 S.C.
this court held that where the
rules do not impose a time limit
for the taking of a step this
court cannot fill the lacuna by
resort to rule 5 of C.I. 16
which provides.
"Where no provision is expressly
made by these Rules regarding
the practice and procedure which
shall apply to any cause or
matter before the Court, the
Court shall prescribe such
practice and procedure as in the
opinion of the court the justice
of the cause or matter may
require".
I notice that in DEDE II V.
ANSAH (1980) GLR 746 Ampiah J,
held as follows in respect of a
conditional appearance under
Order 12 rule 24 of L.N. 140A.
"The effect of this rule is to
require the defendant who has an
objection to the issue or
service of the writ to apply to
the court to set aside the writ
or the service on him ... There
is no time limit within which
this application could be made,
but by necessary implication of
the English Court Rules, the
application is made within
fourteen days after the entering
of conditional appearance or
within such other time as may be
limited by the court.
Consequently, no time having
been fixed by the court, the
defendants were required to move
the court to set aside the writ
or the service on them within
fourteen days".
That course might be justified
under Order 74 of L.N. 140A
which required the High Court of
Ghana under L.N. 140A to follow
the practice and procedure of
the High Court of England where
no express provision was made by
those Rules.
A comparison between rule 7(2)
of the revoked Rules of this
court, C.I. 13 and rules 7(1) to
(4) of C.I. 16 shows that the
omission of a time limit for
applying for special leave is
quite intentional. Under C.I.
13, I believe, and I so stated
in NSIAH V. AMANKWAH (1996-97)
SCGLR 453 at 465 - 466 that a
time limit was provided under
rule 7(2) for applying for
special leave to appeal to this
court in a manner that was out
of joint with article 131(2) of
the Constitution. Rule 7(2) of
C.I. 13 is re-enacted with minor
differences in rule 7(2) of C.I.
16 but then it is quickly
followed up with rule 7(4),
which does not make a prior
application to the Court of
Appeal for leave to appeal to
this court a sine qua non to an
application for special leave to
this court. Rule 7(4) of C.I.
16, be it noted, has no
equivalent in C.I. 13, the
revoked Rules of this court. Its
introduction into C.I. 16
without time limit was therefore
intentional. This is confirmed
by section 4 of the Courts Act
(1993) Act 459 particularly
subsections 2 and 5 thereof, to
which my brother Adjabeng
J.S.C., kindly drew my
attention. They are as follows:
(2) Not withstanding subsection
(1) of this section, the Supreme
Court may entertain an
application for special leave to
appeal to the Supreme Court in
any cause or matter (including
interlocutory matter) civil or
criminal, and may grant leave
accordingly,
X X X
(5) subject to subsection (2) of
this section, the Supreme Court
shall not entertain any appeal
unless the appellant has
fulfilled all the conditions of
appeal prescribed under the
Rules of Court".
These are provisions in pari
materia with article 131 of the
1992 Constitution and rules 7(1)
to (4) of C.I. 16 and show that
there are no conditions of
appeal (including time limit) ex
facie rule 7(4) of C.I. 16 to be
complied with in applying for
special leave to appeal to this
court. It follows therefore that
rule 7(4) of C.I. 16 confers a
discretion, simpliciter on this
court with regard to an
application for special leave to
appeal to this court.
It is well established that a
discretionary power ought not,
unless statute provides
otherwise, to be fettered by the
introduction of fixed
preconditions. As forcefully
stated in the Editorial note to
BLUNT V. BLUNT (1942) 2 All ER
613: "The exercise of a
discretion cannot, from its very
nature, be made subject to
rules. Once a rule is
formulated, the discretion is
destroyed". And so it is trite
law that in the field of
judicial discretion, there are
no precedents properly so
called, see HYMAN V. ROSE
(1911-13) All ER 238, H.L. But
the discretion under Rule 7(4)
of C.I. 16 relating to
applications for special leave,
must, like, all other judicial
discretions be exercised
judicially.
Accordingly that judicial
discretion cannot be fettered
but must be guided by principles
of justice and fairness. Some of
the guidelines in considering an
application for special leave
are as follows:—
(1) 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 was
special, see KHOURY V. MITCHUAL
(1989-90) 2 GLR 259, NSIAH V.
AMANKWAH (1998-99) SC GLR 132
GATTI V. SHOOSMITH (1939) 3 All
ER 916 C.A followed in DOLPHYNE
V. SPEEDLINE STEVEDORING CO.
LTD. (1996-97)SC GLR 453.
(2) The application must be
brought timeously, having regard
to the circumstances of the
case, that is to say within a
reasonable time. See REPUBLIC V.
HIGH COURT, ACCRA, Ex parte
DARKE XII (1992) 2 GLR 688 S.C.,
KHOURY V. MITCHUAL, supra.
(3) Though there is no specific
time limit within which to apply
for special leave, the overall
maximum time limit for invoking
the appellate process revealed
by a consideration of the time
limits prescribed by C.I. 16 may
afford a useful guideline in
some cases as to whether an
application for special leave is
too tardy, see by analogy,
LUTTERODT V. MENSAH NYARKO
(1984-86) 1 GLR 237 C.A.
Headnote, holding (2).
(4) Where the respondent (or
third parties for that matter)
may be damnified irreparably,
the inconvenience to the court,
the conduct of the appellant in
all the circumstances, see by
analogy NYARKO V. LUTTERODT
(1984-86) 1 GLR 437 C.A., CARSON
V. CARSON (1983) 1 All ER 478
C.A.
(5) Even though failure to make
a prior application for leave to
appeal from the Court of Appeal
under rule 7(1) or to make the
application for special leave
within 14 days under rule 7(1)
of C.I. 16 after a refusal of an
application for leave by the
Court of Appeal, is not a bar to
an application to this court for
special leave, it is still pars
judicis to take those matters
into consideration in
determining an application for
special leave to appeal to this
court under rule 7(4) of C.I.
16. See KHOURY V. MITCHUAL,
supra, ADABLA V. GBEVLO AGAMA
(1939) 3 All ER 381 P.C.
(6) Special leave to appeal may
be granted
(a) where a general principle of
law has arisen for the first
time,
(b) a decision by the Supreme
Court on the point sought to be
appealed against will be
advantageous to the Public. See
DOLPHYNE (NO.2 V. SPEEDLINE
(1996-97) SCGLR 373, NSIAH V.
AMANKWAH (1998-1999) SCGLR 132.
(7) The overriding principle
however is that "... the
discretion is conferred on this
court by the Constitution and
will be exercised in appropriate
cases bearing in mind the facts
of each presentation and the
need to prevent a failure of
justice. It should be clear
concerning the principles on
which special leave will be
granted. They are to be applied
as guides from which the court
may determine whether to grant
special leave or not" see
DOLPHYNE (No.2) V. SPEEDLINE
STEVEDORING CO. LTD., supra.
The role the special
circumstances of a case can play
in the exercise of a discretion
is demonstrated by ADJEIODA V.
C.F.A.O. (1971) 2 GLR II where
Abban J (as he then was) granted
the applicant leave to go into
execution of a judgment obtained
17 1/2 years earlier under Order
42 rule 22 of L.N. 140A, which
had no time limit for such
applications provided 6 years
had elapsed after the judgment,
because of circumstances beyond
the control of the applicant.
Also in EASTON V. BROWN (1981) 3
All ER 278 Goulding J granted
extension of time to proceed on
an order for specific
performance after a lapse of 8
years.
On the facts of those cases, the
result would have been the same
even if the application had been
for special leave to appeal.
However the courts must guard
against the abuse of their
process even though there be no
time limit for a step to be
taken. Inconceivable as it may
sound, in WILLIS V. EARL
BEAUCHAMP (1911-13) All ER 515
C.A. the plaintiff had the
effrontery to bring an action to
revoke a grant of Letters of
Administration made 90 years
earlier, on the grounds of
nullity. At page 518 Bowen L.J.
said
"I think his action ought to be
stayed as being a vexatious
action within the meaning
attached to that word by the
courts. Because it can really
lead to no possible good".
Applying the above principles to
this case I agree with my
brother Adjabeng J.S.C. that the
facts of this case justify the
grant of the application for
special leave. The applicant
acted timeously in instructing
counsel, who did not diligently
attend to the matter and even
there not for an inordinate
period of time. It has been said
often that the sins of counsel
ought not to be visited on the
client's head. It is not however
an absolute principle and the
circumstances of the case will
dictate its application, see
GATTI V. SHOOSMITH applied in
DOLPHYNE V. SPEEDLINE
STEVEDORING CO. LTD. at 380,
supra and R. V. SECRETARY OF
STATE FOR HOME DEPARTMENT, ex
parte ALMEDAHWI (1989) 1 All ER
777 C.A. The applicant alleges
that he has paid ¢50,000 to the
respondent for part of land to
be sold to him by the
respondent. Though the exact
portion to be conveyed to him is
unspecified, that portion,
whatever it is, is part of a
larger piece of land the
identity of which is not in
issue, indeed the applicant says
he has been in possession of the
whole of it for many years. He
contends that in these
circumstances, applying the
maxim id certum est quid certum
reddi potest, it should be
possible to give effect to their
agreement.
In these circumstances I am of
the opinion that the application
raises a legal issue of general
public importance or
alternatively a matter of public
interest, whether on the
application of that maxim, it is
not possible to ascertain the
value of the whole property
whether at present or at the
time of the undeniable payment
of the ¢50,000.00 and convey so
much of the land as represents
that payment to the applicant.
After all in other contexts the
courts have given relief on the
basis of quantum meruit or
quantum valeat and I thought
similar considerations could
afford the applicant a remedy in
this case. I am far from saying
that if granted special leave to
appeal the applicant will
inevitably succeed, he may not,
but it is not clear that he will
certainly not succeed. In AHUMA
V. AKORLI (No.2) (1975) 1 GLR
473 the court was able to
overcome a not too dissimilar
problem of land sold but not
exactly ascertained.
In reaching this result I have
all along borne in mind that
this application is for special
leave to appeal as opposed to
other forms of leave and that
some of the guidelines I have
relied upon are applicable to an
application to the Court of
Appeal for leave to appeal under
Article 131(1)(b) of the
Constitution, but as noted by
this court in DOLPHYNE (No.2) V.
SPEEDLINE STEVEDORING CO. LTD
(1996-97) and by me in NSIAH V.
AMANKWAH (1996-97) SCGLR 132,
this is unobjectionable
coincidence.
I would therefore also grant
this application
COUNSEL
Mr. James Ahenkorah for
Applicant.
Mr. Awere Awuku for the
Respondent. |
