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RULING
AMPIAH, J.S.C.
The applicant seeks a review of
the Court's judgment of 16th
July, 1997. I have read the
Statement Of case filed by both
parties in the action and the
submissions made therein. It
appears to me that the applicant
is using this review application
as an appeal by calling on this
court to have a second look at
its own judgment. This is not
the intent and purpose of a
review application.
Rule 54 of C.I. 16 (the Supreme
Court Rules, 1996) requires that
for the purpose of a review
application, the applicant must
show:—
"(a) exceptional circumstances
which have resulted in a
miscarriage of justice.
(b) discovery of new and
important matter or evidence
which after the exercise of due
diligence, was not within the
applicant's knowledge or could
not be produced by him at the
time when the decision was
given".
All the necessary documents
which the applicant relied on
were available at the time of
hearing and were tendered in
evidence although they were
rejected by the court after an
exhaustive examination of the
contents and their import. No
new evidence or matter which
could not have been within the
knowledge of the applicant at
the time of the hearing has been
introduced in this application.
The argument now put forward in
respect of these documents in
this review application was
canvassed at the hearing of the
appeal. Rule 54(b) of C.I. 16
has not been satisfied.
With regard to the ground under
Rule 54(a) of C.I. 16, the only
complaint by the applicant is
that the judgment has resulted
in a miscarriage of justice.
According to him the vesting of
ownership of the whole of the
DUASI LAND in the respondent was
unjust as the respondent only
claimed a portion of that land.
Further, he argued, since the
respondent was not the allodial
title owner of that land, the
court could only grant him, if
at all, possessory title as was
done by the lower courts but not
an absolute title. Acquah J.S.C.,
delivering the leading judgment
of the court, set down the
various claims by the parties
and dealt exhaustively with the
evidence in support of these
claims. Claim (1) of the Writ of
the respondent (i.e. the
plaintiff) described the land as
'DENDEN' and showed the
boundaries of this particular
land. 'DENDEN' Land according to
the respondent, was part of the
'DUASI' Land. This means the 'DUASI'
land was a bigger Land. The
respondent explained why he was
limiting his claim to only that
portion of the 'DUASI' Land,
even though he claimed that the
whole of the 'DUASI' Land
belonged to his family. The
evidence showed that apart from
the 'DENDEN' land which the
respondent claimed they were in
absolute control of, parts of
the DUASI land were in the
possession of other persons
including the two wives of Nana
Opoku Ware I, namely Niwaa
Tuapin and Agyeiwaa Buta. The
applicant himself is said to be
on a portion of the 'DUASI'
Lands, called KUSIASI. The
applicant surprisingly referred
to his land as 'DENDEN' and
similarly described its
boundaries as that of the
respondent. That could not be
correct because the description
given by the responded covered
only a portion of the 'DUASI'
Land. The so-called Kwadason
Committee's report was clear; it
was not meant to be binding on
the parties. The Chairman of the
Committee himself stated in no
uncertain words that the parties
were at liberty to resort to
court action if they were not
satisfied. Aside of this
statement, the evidence showed
that there were other persons
laying claim to portions of the
'DUASI' Land. Consequently, any
conclusions came to under the
proceedings would not be binding
on those persons and could not
have resolved any issue
regarding ownership of the 'DUASI'
Lands.
The evidence showed that aside
of the traditional evidence,
offered by both parties, the
respondent's Stool were in
absolute possession and control
of the 'DENDEN' LAND. That is
why the trial judge declared
them as possessory title owners.
And, if the evidence of the
applicant that it was his family
which settled the respondent's
family on the land were to be
believed, the respondent would
have held the absolute title in
a property he and his family had
occupied for over 300 years
exercising full control over the
land. That was why the judgment
was varied to vest absolute
title in him of the DENDEN Land
and not the DUASI LAND.
When His Lordship Justice Acquah
J.S.C. declared the plaintiff
(respondent herein) "......
owner of the DUASI Land as
described in the summons ..", he
was declaring title in the
'DENDEN' land only since that
was the claim by the plaintiff.
'DENDEN' land is only part of
the 'DUASI' land. In other words
the plaintiff was the owner of
that portion of the 'DUASI' LAND
called 'DENDEN' as described in
the Writ of Summons. This
created no ambiguity or
uncertainty in the description
of the land. The applicant,
mistook the 'DENDEN' Land as
described in the Writ of Summons
for the whole of the 'DUASI'
Land he was claiming. By so
doing, he failed to identify
correctly the land he was
actually claiming. His
counterclaim was bound to fail!
In conclusion, we see no
miscarriage of justice resulting
from the judgment of this court.
Accordingly we would dismiss the
application.
C. HAYFRON-BENJAMIN
JUSTICE OF THE SUPREME COURT
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
F.Y. KPEGAH
JUSTICE OF THE SUPREME COURT
E.D.K. ADJABENG
JUSTICE OF THE SUPREME COURT
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO(MISS)
JUSTICE OF THE SUPREME COURT |
