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Civil procedure -
Application to grant leave -
Reversal of the decision of a
single Justice - Construction
of will - whether the order of
the single judge was a proper
exercise of discretion - Whether
or not it is proper to introduce
a new not in original pleadings
HEADNOTES
The background to the
application herein is that
following the decision of this
court in an appeal involving the
parties herein, the applicant
filed a motion for review of the
decision of the ordinary bench.
It repays to say that the case
which was contested from the
trial court and culminated in
the decision of the ordinary
bench of this court on 17 July
2014 was concerned simply with
the construction of the will and
indeed, the review application
that was filed by the Applicants
herein on 15 August 2014 dealt
only with issues that alleged
misconstruction of the will the
subject matter of the action
herein by the ordinary bench.
Following the filing of the
review application, the
Applicants applied to the court
presided over by a single
Justice for leave to be enabled
to file a supplementary
affidavit and statement of case
in the review application.
After hearing the parties, the
learned judge refused to yield
to the invitation of the
Applicants. Dissatisfied with
the said ruling, the Applicants
are now before us by virtue of
article 134 of the 1992
Constitution for a reversal of
the decision. By the application
herein, we are enabled to
reconsider the application which
was refused on 15 August 2014
and in particular determine
whether the order of 15 August
2014 was a proper exercise of
discretion by the learned judge
whose decision we are entitled
to treat with respect and
reverse same only if we are
satisfied that the refusal was
an injudicious exercise of
discretion.
HELD :-
We observe that since the
leave was sought to enable the
Applicants put across their
case which is pending before
the review panel and involves
an entirely new matter,
accordingly where such an
application raises a new case
and or issue for the first time
after the decision on the appeal
by the ordinary bench of the
Supreme Court, then it can be
said that the new case being set
up We venture to say that it is
doubtful if the new matter
raised can conveniently be tried
in the pending application
together with the issues on
which the action herein was
contested from the trial High
Court to the decision of the
ordinary bench of this court as
its effect would be to change
the whole tenor of the
Applicants case at this late
stage In our view, these reasons
are sufficient to dispose of the
application herein; the result
of which is that the application
is refused.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
New Zealand and Australian Land
Co v Watson (1881) 7 QBD, 374;
Green v Miller, 109 ER 1335
Mahama Hausa v Brako Hausa
[1972] 2 GLR 289.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:-
COUNSEL
GODFRED YEBOAH DAME ESQ. (WITH HIM
FREEMAN SABBAH AND JUSTICE OTENG
) FOR THE DEFENDANTS
/APPELLANTS/ APPELLANTS/
APPLICANTS /APPLICANTS.
DIANA ASONA DAPAAH ESQ. WITH HER
LESTER OHEMENG AND VELDA ADOBEA
ATUAH FOR THE
PLAINTIFFS/RESPONDENTS/
APPELLANTS
/RESPONDENTS/RESPONDENTS.
______________________________________________________________________
RULING
______________________________________________________________________
GBADEGBE JSC:-
We have before us an application
that seeks the reversal of the
decision of a single Justice of
this court that refused to grant
leave to the Applicants herein
to file a supplementary
affidavit and supplementary
statement of case in a pending
review application before this
court.
The background to the
application herein is that
following the decision of this
court in an appeal involving the
parties herein, the applicant
filed a motion for review of the
decision of the ordinary bench.
It repays to say that the case
which was contested from the
trial court and culminated in
the decision of the ordinary
bench of this court on 17 July
2014 was concerned simply with
the construction of the will and
indeed, the review application
that was filed by the Applicants
herein on 15 August 2014 dealt
only with issues that alleged
misconstruction of the will the
subject matter of the action
herein by the ordinary bench.
Following the filing of the
review application, the
Applicants applied to the court
presided over by a single
Justice for leave to be enabled
to file a supplementary
affidavit and statement of case
in the review application.
After hearing the parties, the
learned judge refused to yield
to the invitation of the
Applicants. Dissatisfied with
the said ruling, the Applicants
are now before us by virtue of
article 134 of the 1992
Constitution for a reversal of
the decision. By the application
herein, we are enabled to
reconsider the application which
was refused on 15 August 2014
and in particular determine
whether the order of 15 August
2014 was a proper exercise of
discretion by the learned judge
whose decision we are entitled
to treat with respect and
reverse same only if we are
satisfied that the refusal was
an injudicious exercise of
discretion.
We have examined the grounds of
the application and in
particular the contention that
the learned Justice whose
decision is before us for
reconsideration did not exercise
the discretion conferred on him
properly and wish to say at once
that we think that that
decision was correctly
pronounced. As we are in
agreement with the single
Justice’s decision and the
reasons provided therefore, we
do not think it necessary to
repeat the said reasons in the
course of our determination of
the instant application. We are
of the view that faced with the
nature of the application before
him; the single Justice could
not have reached a different
conclusion. We are also of the
opinion that the facts in
respect of which the Applicants
strenuously sought to raise
for the first time in the review
application namely - that the
will which was the subject
matter of the action herein was
made by an illiterate and signed
by him without an interpretation
clause raises for the
consideration of the Court
essentially a new matter or fact
that was not raised on the
pleadings on which the action
was contested from the trial
High Court to the Supreme Court
and that being so, it is not
only inconvenient to allow such
a new case to be introduced at
that stage in the proceedings
but would occasion injustice to
the Respondents. See: (1) New
Zealand and Australian Land Co v
Watson (1881) 7 QBD, 374;
(2) Green v Miller, 109
ER 1335. Reference is made to
the speech of Bramwell LJ in the
New Zealand case (supra) at page
382 as follows:
“But the
first observation that I have to
make upon it is that no such
case as this is in the statement
of claim, nor was it made before
the jury or in the argument
before Mr. Justice Field. If pleadings are to be of any use
a man should be bound by the
statement of his case, so that a
defendant may know what he has
got to answer. Otherwise
pleadings are a snare and a
delusion. I do not say that an
application may not sometimes be
properly made to the court in
which the record is, for leave
to amend the statement of claim
so as to raise a different
question from that which is
already in it, but I think it an
inconvenient thing when the
question comes to be discussed
before the Court of Appeal, that
an entirely new point should
then be raised.”
We observe that since the leave
was sought to enable the
Applicants put across their
case which is pending before
the review panel and involves
an entirely new matter, the
consideration that should weigh
on us should be the same as
those in an application that
seeks leave to amend pleadings,
and accordingly where such an
application raises a new case
and or issue for the first time
after the decision on the appeal
by the ordinary bench of the
Supreme Court, then it can be
said that the new case being set
up is not necessary for the
purpose of determining the
matter in controversy between
the parties. We venture to say
that it is doubtful if the new
matter raised can conveniently
be tried in the pending
application together with the
issues on which the action
herein was contested from the
trial High Court to the decision
of the ordinary bench of this
court as its effect would be to
change the whole tenor of the
Applicants case at this late
stage. See: Mahama Hausa v
Brako Hausa [1972] 2 GLR
289.
In our view, these reasons are
sufficient to dispose of the
application herein; the result
of which is that the application
is refused.
(SGD) N. S. GBADEGBE
JUSTICE OF THE
SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE
SUPREME COURT
COUNSEL.
GODFRED YEBOAH DAME ESQ. (WITH HIM
FREEMAN SABBAH AND JUSTICE OTENG
) FOR THE DEFENDANTS
/APPELLANTS/ APPELLANTS/
APPLICANTS /APPLICANTS.
DIANA ASONA DAPAAH ESQ. WITH HER
LESTER OHEMENG AND VELDA ADOBEA
ATUAH FOR THE
PLAINTIFFS/RESPONDENTS/
APPELLANTS
/RESPONDENTS/RESPONDENTS. |
