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R U L I N G:
The applicant and three (3)
other accomplices were convicted
by the High Court, Accra on the
26th of August 2006
for the offences of conspiracy
to commit robbery and robbery
and were sentenced to 65 years
each In Hard Labour (IHL).
Applicant herein appealed to the
Court of Appeal which on the
23rd Day of October 2008
dismissed his appeal against
conviction and sentence. He
further appealed to the Supreme
Court and on the 18/1/2012 the
court dismissed his appeal
against conviction but reduced
his sentence to 40 years IHL to
run from the date of arrest
which was 2002.
This present application was
filed on the 5/8/2015 by the
applicant in person; not acting
through a lawyer. He described
the application in the motion
paper as follows: “Motion on
notice for leave to appeal for
review”. When one considers the
substance of the motion, it is
essentially an application for
extension of time to apply for a
review of the decision of the
regular panel of this court
which gave its decision on the
18/1/12. So I shall consider
the application as one for
extension of time.
Rule 55 of the Supreme Court
Rules 1996 (CI 16) provides as
follows: “An Application for
review shall be filed at the
registry of the court not later
than one month from the date of
the decision sought to be
reviewed.”
Rule 60 of CI 16 provides as
follows: “Any of the time limits
specified in this part may on
application be extended or
abridged by the court.”
Rule 60 of CI 16 does not set a
time limit within which an
application for extension of
time to apply for a review of a
decision of the court may be
filed. It is unlike rule 8(4)
of CI 16 on civil appeal and
rule 66 on the supervisory
decision of the court which both
set time limit for application
for extension of time.
Nevertheless I am being called
upon by the applicant to
exercise a discretion in his
favour and extend time for him.
Though the state has been served
with the application and with a
number of hearing notices
nothing has been filed on behalf
of the Attorney General. That
notwithstanding I am required to
consider the grounds of the
application as contained in the
affidavit in support of the
motion to determine whether a
proper case has been made for
time to be extended.
In the case of Botchway Vrs.
Appiah [2003/04] SCGLR 137,
Adade JSC stated as follows
at page 139; “If an extension of
time should be sought, it must
be for sound and convincing
reasons sufficient to induce the
court to sympathise with the
applicant and exercise its
discretion in his favour. It is
not enough merely to say “I
have delayed, I want an
extension of time.””
It is a settled principle of
law that where a statute allows
a party to apply for extension
of time within which to take a
step in proceedings but it does
not set a time limit within
which the application may be
brought, a party deciding to
apply for extension of time must
nonetheless make the application
timeously. In addition, the
applicant has to give
substantial and credible reasons
for failing to take the step
within the time as set by the
statute.
In the instant case the
application has been brought
after three years, eight-months
(3yrs 8mnths) of the decision
being sought to be reviewed.
This application is certainly
not being made timeously. The
courts have tended to be lenient
towards convicted prisoners who
are in lawful custody when it
comes to extending time but
3years, 8 months in the
circumstance of this case is
unreasonable delay in my
opinion. What is more, the
affidavit in support does not
provide any reason for the long
delay.
The review jurisdiction of the
Supreme Court as provided for
in Rule 54 of C.I. 16 is a
special one. In the case of
Agyekum vs Asakum Engineering
and Construction Ltd. [1992]
2GLR 635 François JSC said
at p651 as follows: “The
Supreme Court has expressed the
view many times before that the
review jurisdiction does not
provide the platform for
rehearing previous legal
positions, whatever new learning
or erudition are thrown into the
melting pot. The acid test
remains as always the existence
of exceptional circumstances and
the likelihood of miscarriage of
justice that should provoke the
conscience to look at the matter
again. I would consequently for
my part reject the invitation to
traverse known corridors
revisiting the pros and cons of
argument only to conclude that
the stance remains unswervingly
unshaken. I am firmly against
the attempt to turn the review
jurisdiction into a further
avenue for appeal. We have no
constitutional power to do so.”
Consequently, an applicant who
is seeking for extension of time
to apply for review ought to
show by his affidavit in support
grounds which prima facie show
exceptional circumstances which
has resulted in a miscarriage of
justice or new and important
matter of evidence which could
not be produced at the time the
decision was given.
I have carefully read the
affidavit in support in the
instance case and noted the
grounds stated therein as the
basis for seeking to apply for a
review of the decision of the
regular panel of this court
dated 18/1/15. I have also read
the judgement of the court which
was unanimous and have come to
the conclusion that all the
matters being raised now were
dealt with in the detailed and
exhaustive judgement of the
court. It is apparent on the
affidavit that the appellant is
seeking to reargue the appeal by
way of review; but the review
jurisdiction is not a further
appeal. There must be an end to
litigation and I think no useful
purpose will be served by
granting leave to applicant to
file for a review of the
decision delivered 3 years, 8
months ago.
The application is accordingly
refused.
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
APPLICANT
FOR HIMSELF.
WILLIAM KPOBI ESQ. CHIEF STATE
ATTORNEY FOR THE REPUBLIC |
