Practice and Procedure - Appeal - Leave to appeal - Application for leave to appeal from decision of Court of Appeal to Supreme Court - Principles for grant of leave.

Held - In practice the rationale for requiring leave of the Court of Appeal to appeal to the Supreme Court where the Court of Appeal had affirmed the decision of the lower court was that at least three of four judges (quite often of the superior courts) would have expressed the view that the appellant’s case was unmeritorious. The appellant therefore had to show some significant need why, in the interest of justice, he ought to be given another chance in the Supreme Court. If that need was not shown and leave was granted just for the asking, the courts would be encouraging worthless and protracted litigation. Leave could not be granted for the sake of arguing a legal point already well settled in the courts.

APPLICATION for leave to appeal to the Supreme Court from a decision of the Court of Appeal affirming a decision of the High Court.

BROBBEY JA. On Thursday, the 5th of November 1992, we dismissed an appeal against the judgment of Moses Abakah J sitting in the Koforidua High Court. Counsel for the appellant then applied for leave to appeal to the Supreme Court.

In the argument, counsel grounded his application on the following points:

“1) that the judgment raised a number of legal issues such as the exercise of the supervisory jurisdiction of the High Court over inferior courts and the extension of prerogative writs.

(2) whether or not Afua Fofie could be said to have been a judge in her own cause or could have been said to have acted improperly by her failure to disclose her interest when every one sitting on the case or appearing before the panel knew what her interest was.”

In practice the rationale for requiring leave of this court before proceeding to the Supreme Court is said to be this: when this court affirms a decision of a lower court appealed against, at least three of four judges (quite often of the superior courts) would have expressed the view that the appellant’s case is unmeritorious. The appellant therefore has to show some significant need why, in the interest of justice, he should be given another chance to go to the Supreme Court. If that need is not shown and leave is granted just for the asking the courts would be encouraging litigation to be unnecessarily protracted when the courts have clearly evinced the intention by repeated judgments to ensure that the appellant is not merely wasting time by fighting a battle the court knows he will not win.

If there is one case which falls into this latter category of cases, it is the application made by the applicant for leave to appeal in this case. I make this point for two reasons: firstly, there is no new point about the first ground which appellant’s counsel describes as raising legal issues. The issues on the supervisory jurisdiction of the High Court are so hackneyed that our law reports abound with authorities on them. Leave cannot be granted for the sake of arguing a legal point which is already well settled in the courts.

Secondly, the ground which relates to the principle that one cannot be a judge in one’s cause is an obvious one. There is no doubt that Afua Fofie was the one who personally benefited from a decision of the panel. Even the appellant does not deny this point. Yet Afua Fofie was undoubtedly among the panel which adjudicated over the dispute.

We have expressed the view that we do not wish to create the impression that there can be exceptions to situations where a person can knowingly be a judge in his own cause. Barring cases of necessity, there can be no such exception. In the final order of this court the parties were permitted to pursue this dispute in the appropriate chieftaincy tribunal. This was not therefore a case in which we closed the doors to the parties as far as further litigation was concerned. Our pre-occupation was, and still is, that justice should not only be done but should manifestly and undoubtedly be seen to be done. We were emphatic that this case involved the well-settled principles of natural justice which will be followed by other quasi-tribunals and therefore the record should be straightened so that the right procedure would be followed. We would be perpetuating error if we grant this leave to appeal to the Supreme Court.

The appellant won the case in 1931. If the appellant is convinced that she won the case at the 1931 tribunal on its merits why should she entertain any qualms or apprehension about re-litigating in the appropriate forum to vindicate her cause.

We would be encouraging the parties to waste their time and their resources if we were to grant the appellant’s leave to proceed to the Supreme Court. The application for leave to appeal is unmeritorious and is therefore refused.

AMPIAH JA. I agree.

KWAPONG J. I also agree.

Application refused.

S Kwami Tetteh, Legal Practitioner.