Courts – Supreme Court – Review – Circumstances in which court may review its decision.

Courts – Supreme Court – Supervisory jurisdiction – Certiorari – Notice of appeal filed out of time – Whether notice may be quashed.

State proceedings – Certiorari – Error of law – High Court having jurisdiction to entertain application for stay of execution pending appeal – Whether Supreme Court may quash order for stay of execution by High Court.

Courts – Supreme Court – Jurisdiction – Court presumed to have jurisdiction except in matters expressly excluded.

The defendant lost in a substantive case in the district court on 6 September 1989, and lost the appeal to the High Court on 22 June 1990. On 29 August 1990 the High Court dismissed his application for extension of time to apply for leave to appeal on the ground that it had no jurisdiction to extend time. He filed a notice of appeal against the refusal on the fourteenth day and applied successfully to the High Court to stay execution of its judgment dated 22 June 1990. The plaintiff applied to the Supreme Court for an order to declare and set aside as null and void the notice of appeal to the Court of Appeal. Additionally he applied for an order of certiorari to quash the order for stay of execution. The Supreme Court in Rep v High Court, Kumasi; ex parte Khoury [1991] 2 GLR 393, by a majority, granted the application. The defendant applied for review of the decision.

Held: the applicant has not shown exceptional circumstances warranting the grant of the application for review. All the points raised in support of the application were fully considered in the decision sought to be reviewed. Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC, A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, Ababio v Mensah [1989-90] 1 GLR 573, SC, Darbah v Ampah [1989-90] 2 GLR 103, SC, Ribeiro v Ribeiro (No 2) [1998-90] 2 GLR 130, SC, Nasali v Addy [1987-88] 2 GLR 286, SC, Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 513, SC referred to.

Per Adade JSC: I would have thought that the supervisory jurisdiction of the court would be excercisable over a judicial decision of the court below, not otherwise. By our decision in Rep v High Court, Kumasi: ex parte Khoury [1991] 2 GLR 393, we have decreed that a notice of appeal properly filed by a party to a case, and which has not been seen by any of the judges of the Court of Appeal, let alone pronounced upon by them, is a proper subject for the exercise of this court’s supervisory jurisdiction. In such a situation, who is this court really supervising? It cannot be the High Court judge, because he has had nothing to do with the notice of appeal. It cannot be the Registrar of the High Court either, because he was merely discharging an administrative duty of accepting a document for filing; it is not his business to pronounce upon the validity or otherwise of the document. And it cannot be the Court of Appeal either, because that court has done nothing; the notice was going to the learned Justices of Appeal to be dealt with; it never reached. We have been inveigled into taking over this notice and dealing with it, thus usurping the power of the Court of Appeal, and pre-empting whatever decision it would have given in the appeal. We have no jurisdiction to substitute ourselves for the Court of Appeal in such manner. Eventually, we may find ourselves taking up cases from the High Court too. We are laying down this principle after due deliberation, knowing it will be relied upon in future as a precedent. I can very well see a party bringing up, on certiorari, a writ of summons from the registry of the High Court to be quashed, on the ground that it discloses no cause of action, or even that it is statute-barred. Will this strictly be a matter for our supervisory jurisdiction? Yet we must be prepared to deal with such an application, following the precedent we are setting in this case. I know that by statute this court is not bound by its own previous decisions. Too frequent a recourse to this liberty to avoid a previous decision will deprive our pronouncements of respect, certainty and authority.

Per Adade JSC: As to the High Court judge’s order staying execution, which is the subject of the second limb of the application for certiorari, I would have thought that this was an order made within jurisdiction and at the judge’s discretion. Once it is conceded that the notice of appeal was filed within time, I would have thought that execution or proceedings under related judgments should be stayed. The learned judge, on the application of the defendant, and in the exercise of his discretion, formally stayed execution. How can such an order be properly quashed on certiorari?

Per Bamford-Addo JSC contra: Although the Court of Appeal could have dealt with the legality of the appeal if the supervisory jurisdiction of this court were not invoked, once the case was before this court it could deal with the issue as well, since no matter is deemed to be beyond the jurisdiction of the Supreme Court unless it is expressly excluded.

Per Amua-Sekyi, Bamford-Addo JJSC: Time for appeal starts running a day after the date of the judgment appealed against.

Cases referred to:

A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, CA.

Ababio v Mensah [1989-90] 1 GLR 573, SC.

Bisi v Kwayie [1978-88] 2 GLR 295, SC.

Darke IX v Darke IV [1984-86] 1 GLR 481, SC.

Darbah v Ampah [1989-90] 2 GLR 103, SC.

Fosuhene v Pomaa [1987-88] 1 GLR 105, SC.

Hungarotex Foreign Trading Co v Boateng [1987-88] 1 GLR 205, SC.

Khoury v Mitchual [1989-90] 1 GLR 161, CA.

Kumnipah II v Ayirebi [1987-88] 1 265, SC.

Loga v Darvordzi [1966] GLR 530, SC.

Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC.

Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 513, SC.

Nasali v Addy [1987-88] 2 GLR 286, SC.

Nye v Nye  [1967] GLR 76, CA.

Patu-Styles v Amoo-Lamptey [1984-86] 2 GLR 644, SC.

Practice Direction (Reviews in the Supreme Court)  [1987-88] 2 GLR 274, SC.

Rep v Court of Appeal, ex parte Sidi [1987-88] 2 GLR 170, SC.

Rep v High Court Kumasi ex parte Khoury [1991] 2 GLR 393, SC.

Ribeiro v Ribeiro  (No 2) [1989-90] 2 GLR 130, SC.

APPLICATION for review of the decision of the Supreme Court.

Ahenkorah (with him Mrs Quayson) for the applicant.

ADADE JSC. This is an application inviting us to review our decision in Rep v High Court Kumasi ex parte Khoury [1991] 2 GLR 393 given on 22 July 1991. By that decision, this court by a majority of 3 to 2, Adade and Amua-Sekyi JJSC dissenting, quashed: (a) a notice of appeal pending before the Court of Appeal and (b) an order by the High Court staying execution of a judgment given by it on 22 June 1990. These orders were made in favour of the plaintiff who had applied to the court for: (a) an order to declare, and set aside as null and void, a notice of appeal to the Court of Appeal filed by the respondent on 12 September 1990 in the High Court, Kumasi in Khoury v Lawson and for (b) certiorari to quash as a nullity the entire proceedings relating to the application dated 26 October 1990 for stay of execution of the High Court, Kumasi coram: Lartey J in that case and the order dated 22 June 1990 staying execution of the judgment of the court.

The defendant lost a substantive case in the district court on 6 September 1989, and lost on appeal to the High Court on 22 June 1990. The High Court decision of 22 June 1990 was a final decision, not an interlocutory decision, and by rule 10(1) of Court of Appeal Rules 1962 (LI 218) (as amended by the Court of Appeal (Amendment) Rules 1969 (LI 618)), the defendant would normally have had three months in which to appeal as of right, but for section 2 of the Courts (Amendment) Law 1987 (PNDCL 191) which required him to seek leave. The time limit of 14 days in r 10(1) of LI 218 relates to “appeals against interlocutory decisions” not to applications for leave to do anything.

On 29 August 1990 the High Court dismissed an application for extension of time in which to apply for leave under PNDCL 191 on the ground that it had no jurisdiction to extend time. This decision was clearly interlocutory and was at the defendant’s choice, appealable as of right within 14 days. He could have repeated the application in the Court of Appeal, but he decided, as he was entitled to do, to appeal instead. He filed his notice of appeal on 12/9/90. By section 22 of the Interpretation Act 1960 (CA 4) this notice was filed on the 14th day from the date of the decision of 29/8/90 (see r 10(2) LI 218) and was timeous. The appeal was therefore properly before the Court of Appeal, which was competent to deal with it.

The case has brought us face to face with a number of interesting issues which I would like to mention for the record, even if I do not intend to decide them, seeing that the occasion is not opportune, these proceedings being an application for review.

The case has exposed a serious lacuna in our rules of practice, and it appears that as early as possible the Rules Committee ought to formulate rules for the exercise of our supervisory jurisdiction.

It is contended that the relevant provision under the 1979 Constitution endowing us with supervisory jurisdiction contains two separate and distinct powers namely (a) general powers of supervision and (b) special powers relating to the prerogative writs of certiorari, prohibition, mandamus and quo warranto. It is said that the application in respect of the notice of appeal in this case was brought under the general powers of supervision in article 119 of the 1979 Constitution, ie the court’s general supervisory powers, implying that under those powers a party to a case in any court may bring anything at all for our scrutiny. I am worried at this development, as it entitles this court to reach out into any registry and deal with any process lying there. It is a situation we must feel concerned about. See, for example, the use to which certiorari was put in Rep v Court of Appeal ex parte Sidi [1987-88] 2 GLR 170, SC. Are we not risking opening up too may avenues for the abuse of this remedy?

I would have thought that given the facts of this case, the supervisory jurisdiction of the court would be excercisable over a judicial action of the court below, not otherwise. By our decision of 22 July 1991 in Rep v High Court Kumasi ex parte Khoury [1991] 2 GLR 393, we have decreed that a notice of appeal properly filed by a party to a case, and which has not been seen by any of the judges of the Court of Appeal, let alone pronounced upon by them, is a proper subject for the exercise of this court’s supervisory jurisdiction. In such a situation, who is this court really supervising? It cannot be the High Court judge, because he has had nothing to do with the notice of appeal. It cannot be the registrar of the High Court either, because he was merely discharging an administrative duty of accepting a document for filing; it is not his business to pronounce upon the validity or otherwise of the document. It cannot be the Court of Appeal because that court has done nothing; the notice was going to the learned Justices of Appeal to be dealt with; it never reached them. We have been inveigled into taking over this notice and dealing with it, thus usurping the power of the Court of Appeal, and pre-empting whatever decision it would have given in the appeal. I am convinced that we have no jurisdiction to substitute ourselves for the Court of Appeal in such manner. Sooner or later we may find ourselves taking up cases from the High Court too. We are laying down this principle after due deliberation, knowing it will be relied upon in future as a precedent. I can very well see a party bringing up, on certiorari, a writ of summons from the registry of the High Court to be quashed, on the ground that it discloses no cause of action, or even that it is statute-barred. Would this strictly be a matter for our supervisory jurisdiction? Yet we must be prepared to deal with such an application, following the precedent we are setting in this case.

I know that by statute this court is not bound by its own previous decisions. See article 116(3) of the 1979 Constitution, now article 129(3) of the 1992 Constitution. But too frequent a recourse to this liberty to avoid a previous decision would deprive our pronouncements of respect, certainty and authority.

On the issue of law raised in this matter, our attention has been drawn to this court’s decision in Patu-Styles v Amoo-Lamptey [1984-86] 2 GLR 644, SC to support the contention that applications for leave to appeal must be made within 14 days of the decision sought to be appealed against, and that time cannot be extended. Amoo Lamptey  was applied in Darke v Darke [1984-86] 1 GLR 481, SC and in Khoury v Mitchual [1989-90] 1 GLR 161, CA. I must observe at once that reliance on Amoo-Lamptey is, with respect, completely misguided, arising out of a misreading or a misunderstanding of that case.

Amoo-Lamptey turned on the interpretation and application of rules 7 and 8 of the Supreme Court Rules 1970 (CI 13), especially r 7. CI 13 governs appeals from the Court of Appeal upwards. Those rules have no application to appeals to the Court of Appeal from below. Those latter appeals are governed by LI 218, as amended. Rule 7 of CI 13 has no equivalent in LI 218. In the present case, we are dealing with an appeal from the High Court to the Court of Appeal and our focus must therefore be on LI 218, not CI 13. To seek to apply Amoo-Lamptey or Darke v Darke to the present case is to evince an unpardonable confusion of thought.

As stated earlier in this opinion, the 14 days time limit in r 10(1) of LI 218 applied to appeals as of right against interlocutory decisions. The 14 days time limit in r 7 of CI 13 applies to applications for leave to appeal to the Supreme Court under article 105 of the 1969 Constitution. The two 14-day time limits are entirely different, and are designed for different purposes, to be used in different circumstances. The equivalent of r 10 of LI 218 is r 8 of CI 13. It would appear that under r 10 of LI 218, as amended by LI 618, when the time limit of 14 days for interlocutory appeals as of right lapses, it cannot be extended. The original r 10 permitted extensions. Even here judicial opinions conflict, as is clearly shown in Nye v Nye [1967] GLR 76, in particular the very illuminating opinions of Apaloo and Amissah JJA.

PNDCL 191 s 2 introduced a new factor, ie that leave is required to appeal against a confirming decision of the High Court. The question is: what are the time limits for this new situation? Are these time limits expandable? And if so, by whom? This is the problem which confronted the learned High Court judge in this case. On the authorities available to him, he ruled that he had no power to extend time, but he obviously had grave doubts as to the correctness of his decision, and expected that a higher tribunal would come to the rescue. We have, by our decision on 22 July 1991, spurned a golden opportunity to face this problem and resolve it, which is a great pity. We have, respectfully, unwittingly relied on pronouncements in other cases which are not relevant to the issues here.

Nye v Nye supra, as Loga v Darvordzi [1966] GLR 530, SC before it, was concerned with r 10(1) of LI 218. Amoo-Lamptey supra, and then later Darke v Darke [1984-86] 1 GLR 481, SC examined r 7(1) of CI 13 which has no counterpart in LI 218. None of these decisions is relevant to the matter before us. The Rules Committee may wish to look at the rules governing this area of the practice and, if so advised, take appropriate remedial measures.

In the Supreme Court Rules (CI 13) a clear distinction is drawn between leave to appeal (r 7(1)), and special leave to appeal (r 7(2)). Although an application for either of these must be made within 14 days, the latter is contingent upon the former. Similarly, in the 1969 Constitution (article 105(2)), the 1979 Constitution (article 117(2)) and the 1992 Constitution (art 131(2)), the Supreme Court is given power to entertain an application for special leave to appeal in any cause or matter. The view is held in many quarters that, subject to reasonableness, there are no time limits for applications under this provision for special leave. The Court of Appeal Rules 1962 (LI 218), does not contain any rules as to time limits for applications for leave. Rather, r 9(1) sets 14 days for applications for special leave, and it has always been assumed that r 9(1) applies to applications for ordinary leave also. I must confess I do not quite know from what we derive the justification for this viewpoint.

If the present proceedings had not been a review, perhaps it might have been appropriate to delve deeper into this problem. The truth of the matter is that under the Courts Act 1960 (CA 9) relative to which LI 218 of 1962 was made, appeals in civil matters from the High Court to the Court of Appeal (then called the Supreme Court) were as of right, except cases coming within the proviso to s 8(1), where a distinction was drawn between leave and special leave. The relevant portion of the said s 8 reads:

“8(1) The jurisdiction of the Supreme Court shall consist of—

(a) the hearing of appeals from any judgment of the High Court in any civil cause;

(c) the hearing of appeals from any decision given by the High Court in any other matter whatsoever; and

Provided that:

(a) an appeal shall lie to the Supreme Court from a judgment of the High Court in the exercise of its appellate jurisdiction on any matter except a matter arising out of a criminal case —

(i) where the High Court has affirmed the decision of the Court from which the appeal is made to the High Court, by special leave of the High Court, and 

(ii) where the High Court has reversed or materially altered the decision of the Court from which the appeal is made to the High Court upon the High Court giving leave to appeal from its judgment upon like terms and subject to the like conditions as if the judgment had been given in a suit or matter originating in the High Court; and

(b) no appeal shall lie except by special leave of the High Court or of the Supreme Court from an order made ex parte or by consent or as to costs only.”

In formulating rules of procedure under s 8 of CA 9 the Rules Committee remembered only special leave under r 9 of LI 218; it might have forgotten all about leave. Constitutions subsequent to the 1960 Constitution abolished the requirement for leave in civil appeals from the High Court to the Court of Appeal; see article 110(1) and (2) of the 1969 Constitution and article 122 of 1979 Constitution, now article 137 of 1992 Constitution.

When PNDCL 191 re-introduced the requirement for leave, it chose ‘leave’ and not ‘special leave.’ The Rules Committee should have spotted the gap in the existing rules and to indicate how PNDCL 191 is to be applied. This has not been done, and the matter would seem to be at large. Fortunately, PNDCL 191 will, sooner or later, fall foul of the 1992 Constitution and on that account be void, as no law can, after January 1993, cut down on the plenitude of the citizen’s right to appeal as of right.

As to the learned High Court judge’s order staying execution, which is the subject of the second limb of the application for certiorari, I would have thought that this was an order made within jurisdiction and at the judge’s discretion. Once it is conceded that the notice of appeal of 12 September 1990 was filed within time, I would have thought that execution or proceedings under related judgments could be stayed. The learned judge, on the application of the defendant, and in the exercise of his discretion, formally stayed execution. How can such an order be properly quashed on certiorari?

FRANCOIS JSC. I do not think much profit would be derived in embarking on an excursus to dissect and analyse previous decisions in the ascertainment of time. For our consideration, the only matter of relevance is whether the tests for review have been successfully overcome. I am content therefore merely to say that the applicant has not demonstrated any exceptional circumstances to entitle him to a reversal of the previous decision of this court. I would dismiss the application.

WUAKU JSC. On 22/7/91, the Supreme Court composed of five panel members by a majority of three to two granted an application for certiorari brought by Mr Lawson, the respondent in the present application for a review of the ruling dated 22 July 1991. A brief facts of the case has been stated by my learned brother Amua-Sekyi JSC whose opinion I have had the privilege to read. I agree with his reasoning and the conclusion reached. I wish however to make one or two points. Before I do so, may I refer to the Practice Direction given by the Supreme Court in Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC. Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274 para 2(d) reads:

“The only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review.”

I have carefully examined all the papers filed in the previous motion, the different opinions read and the applicant’s statement of case filed herein.  The points  being  raised by  the  applicant as  I see

them are:

(a) The notice of appeal filed by the applicant on 12/9/90 was within time; it was therefore wrong for the majority to hold otherwise.

(b) That the two reliefs sought by the applicant in the previous application were not necessarily related;

(c) Had the majority properly considered the two points above, they would have joined the minority in dismissing the application.

Mr Ahenkora therefore tried to show that the majority was mistaken as to the issues for determination.

Where there is a division of opinion in the decision given, it would be apparent that all aspects of the case were gone into properly, various opinions expressed and a decision arrived at. That decision would constitute the majority decision and that, in my view, must prevail. What happens where there is unanimity? Then it would appear that the adjudicating body, in considering the matter, came to the right conclusion or made a fundamental error resulting in an error apparent on the face of the judgment. That judgment may be the subject matter for a review.

The present panel is not sitting as an appellate court to determine whether the ruling of this court dated 22/7/91 was right or wrong, if it were so, this review panel would constitute itself into the final appellate court. It has been held time again and again by this court that it will not receive fresh submissions on points already canvassed at the hearing in order to come to a different conclusion. See A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177 holding (1) which states:

“…there was a clear distinction between a review and an appeal. In the case of a review the same court would be asked to have a second look at its own judgment and correct, if need be, its own record, but in an appeal a higher court was often asked to correct the error real or imagined of a lower court. Although both could achieve the same result they were conceptually different. The jurisdiction conferred on the full bench was to review and not to entertain an appeal from the ordinary bench. For an appeal from an ordinary bench to the full bench would only, in effect, mean an appeal from one panel of judges to another panel of the same court.”

See also Ababio v Mensah [1989-90] 1 GLR 573, SC, Darbah v Ampah [1989-90] 2 GLR 103, SC and Ribeiro v Ribeiro (No 2)  [1989-90] 2 GLR 130, SC.

In my view all the points canvassed by the applicant were already raised and were considered by the panel of five judges and they came to a final decision, even though that decision was not unanimous. In my view the applicant has failed to show that there are exceptional circumstances for a review to be granted. I would dismiss the application.

AMUA-SEKYI JSC. The applicant has taken full advantage of the procedural rules to prolong the agony of the respondent who, having obtained judgment for recovery of possession as far back as 6 September 1989 still finds himself unable to reap the benefit of that judgment. When the appeal to the High Court, Kumasi was dismissed on 22 June 1990 and the applicant failed to apply for leave to appeal within 14 days, the respondent, no doubt, thought that the battle was over. In this, he was mistaken, for, seventeen clear days after the expiry of the time limited by the rules, the applicant applied to the court for an extension of time within which to seek leave to appeal. The court ruled that it had no power to extend time in those circumstances. The quickest way of challenging that decision was to repeat the application in the Court of Appeal. The applicant chose the tardier course of filing an appeal. He then followed up with an application for stay of execution the grant of which by the High Court prevented the respondent from enforcing the judgment.

The respondent’s application to this court to set aside the notice of appeal and vacate staying execution of the judgment was predicated on the belief that the notice of appeal had been filed out of time. It was said that the judge refused to extend time on 28 August 1990 and the notice of appeal was filed on 12 September 1990, that is, one day after the 14 days limitation period had elapsed. When it was pointed out that although the order bears the date 28 August 1990 it was read in court on 29 August 1990, counsel conceded that the notice of appeal must be taken as having been filed within time. On this application for review, counsel’s answer to the submission that the notice of appeal was filed within time is the argument that on a proper interpretation of rule 8(1)(a) and 8(2)(a) of the Supreme Court Rules (CI 13) the 14 days expired on 11 September 1990. The said rules read as follows:

“8(1) Subject to the provisions of any enactment governing the same a civil appeal shall be lodged within,

(a) fourteen days, in the case of an appeal against an interlocutory decision.

(2) The periods specified in the preceding sub-rule  shall,

(a) in the case of an appeal as of right, be calculated from the date of the decision appealed against…”

The question raised, whether in computing time under rule 8 the date of the decision should be excluded was answered in the affirmative in Hungarotex Foreign Trading Co v Boateng [1987-88] 1 GLR 205, SC. Accepting this as the correct view, the appeal against