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Review – Will
– Requirements of the law -
Leave of Court - Supplementary
affidavit - Jurat – Exercise of
due diligence - Protection
Ordinance, 1912 (Cap. 262),-
Whether or not the writer of the
document was required to state
his full name and address at the
foot of the document – Whether
or not the application is an
attempt to introduce new issues
that can only be determined by
the taking of evidence -Whether
or not for an application for
review the honourable court is
disabled from taking evidence -
rule 57, 59 and 79 - Supreme
Court Rules, 1996, (C.I. 16) -
Article 129(4) - 1992
Constitution
HEADNOTES
The
applicants are asking the court
to grant them
leave
to file a
supplementary affidavit and
statement of case. The main
ground for the application is
that the
Will of the late Edward Kabu
Otoo, hereafter called the
Testator, which has been at the
heart of the dispute resulting
in the application for review
was invalid on ground that the
Testator was illiterate and the
Will did not meet the
requirements of the law as
regards a
‘jurat’. This fact became
known during interaction between
the applicants and their new
lawyers and the latter have
found it necessary to disclose
this to the court since it would
have an important influence or
effect on the decision of the
court.In their affidavit in
opposition the Respondents say
that the
application is an attempt to
introduce new issues that can
only be determined by the taking
of evidence. That this
application is in fact and in
law an application to adduce new
evidence in review disguised as
an application for leave to file
supplementary affidavit and
statement of case and that
assuming without admitting that
the testator was indeed
illiterate, the issue of his
illiteracy should have been
raised at first instance and
since it was not raised the
Applicants have slept on their
rights.
HELD
STATUTES
REFERRED TO IN JUDGMENT
Protection
Ordinance, 1912 (Cap. 262),
Supreme Court
Rules, 1996, (C.I. 16)
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
NASALI v.
ADDY (1987-88) 2 G.L.R. 286 at
288
AGYEKUM v.
ASAKUM ENGINEERING &
CONSTRUCTION LTD. (1992) 2
G.L.R. 635, at page 651
IN RE
EFFIDUASE STOOL AFFAIRS (NO. 3);
REPUBLIC v. NUMAPAU, PRESIDENT
OF THE NATIONAL HOUSE OF CHIEFS
and OTHERS; EX PARTE AMEYAW II
(NO. 3) (2000) SCGLR 59
KOGLEX (GH)
LTD and Another v. ATIEH
(2001-2002) SCGLR 947
AGYEKUM and
ALHASSAN v. AMADU BABA and
Another (2003-2004) SCGLR 60
HANNA ASSI
(No. 2) v. GIHOC REFRIGERATION &
HOUSEHOLD PRODUCTS LTD. (No. 2)
(2007-2008) SCGLR 16
KWAMIN v.
KUFFUOR (1914) 2REN. 808;
WAYA v.
BYROUTHY (1958) 3 W.A.L.R. 413;
FORI v.
AYIREBI and Others(1966) G.L.R.
627 S.C
MEAT CO. PTY.
LTD. v. LANCASHIRE SHIPPING CO.
LTD. (1960) 1 All ER 193
BOOKS
REFERRED TO IN JUDGMENT
Black’s Law
Dictionary, 9th
Edition,
DELIVERING
THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
GODFRED
YEBOAH DAME ESQ. (WITH HIM
FREEMAN SABBAH) FOR THE
DEFENDANTS /APPELLANTS/
APPELLANTS/APPLICANTS .
DIANA ASONA
DAPAAH ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
APPELLANTS /RESPONDENTS
___________________________________________________________________
RULING
___________________________________________________________________
BENIN, JSC:-
This matter
is before the Supreme Court in a
review
application.
The
Defendants/Appellants/Respondents/Applicants,
hereafter called the applicants,
have filed their affidavit and
statement of case in the said
application. By the present
application the applicants are
asking the court to grant them
leave to file a supplementary
affidavit and statement of case.
The main ground for the
application is that the Will of
the late Edward Kabu Otoo,
hereafter called the Testator,
which has been at the heart of
the dispute resulting in the
application for review was
invalid on ground that the
Testator was illiterate and the
Will did not meet the
requirements of the law as
regards a ‘jurat’. This fact
became known during interaction
between the applicants and their
new lawyers and the latter have
found it necessary to disclose
this to the court since it would
have an important influence or
effect on the decision of the
court.
Paragraphs
9-14 of the affidavit in support
deposed to by the 1st
applicant are germane to this
application. They read:
9. That the
question as to the literacy or
otherwise of the late Edward
Kabu Otoo had never been asked
by any of the previous counsel
engaged by us and we thus, had
not been in the position to
reasonably bring it up for the
consideration or determination
by any court.
10. That in
truth and in fact, the late
Edward Kabu Otoo was an
illiterate incapable of
appreciating the import of the
document alleged to have been
signed by him, and, which
contained legal terminologies
like joint tenancy.
11. That I am
advised by counsel and verily
believe same to be true that as
of the date of the execution of
the will, 9th
February 1944……..there was in
force the Illiterates
Protection Ordinance, 1912 (Cap.
262), which required a
person writing any document for
or at the request of an
illiterate to clearly and
correctly read over and explain
the document to the illiterate
person. This is required to be
evidenced through the execution
of a ‘jurat’ clause.
12. That I am
further advised and verily
believe same to be true that the
writer of
the document was also required
to state his full name and
address at the foot of the
document.
13. That a
perusal of the document held out
so far to be the will of the
late Edward Kabu Otoo will
reveal the absence of any clause
showing a satisfaction of the
express requirements
of……………….Cap. 262.
14. That I am
advised by counsel and verily
believe same to be true that a
presumption of validity of the
will in dispute cannot be made
in the face of the irrefutable
fact that the alleged testator
…..was illiterate, and in view
of the absence of an
interpretation clause in the
will. In essence, the alleged
will of the late Edward Kabu
Otoo is invalid.
The affidavit
goes on in paragraph 16 to give
the reason for the delay in
raising this point; it states
‘That the failure to raise this
point so far was neither
advertent nor due to an
intention to overreach anyone,
but simply due to the failure of
previous counsel to ask
applicants herein that
fundamental question relating to
the competence of the late
Edward Kabu Otoo to execute the
will in question without the
assistance of a person who could
understand and read in the
English language.’
The
application was accompanied by a
statement of case. All the
processes filed were duly served
on the
Plaintiffs/Respondents/Appellants/Respondents,
hereafter called the
respondents. The respondents
answered the applicants by way
of an affidavit deposed to by
their lawyer who filed no
statement of case as required by
rule 57
of the Supreme Court Rules,
1996, (C.I. 16). Thus the
respondents were not entitled to
be heard except as to the
question of costs, see rule
59(3) of C.I 16. However, I
decided to waive this
non-compliance with the rules
under rule
79
and allowed counsel for the
respondents to argue in view of
the importance of the legal
questions raised in the
application as well as the fact
that I am not aware of any
precedent concerning this
important point of procedure.
Most importantly the applicants
overlooked it apparently because
it was a harmless default.
I will at
this stage refer to the material
parts of
the affidavit in opposition
which appear to provide answer/s
to the issue/s raised in the
application. These are contained
in paragraphs 7-14 of the said
affidavit and they provide thus:
7. That
the
Respondents say that the
application is an attempt to
introduce new issues that can
only be determined by the taking
of evidence.
8. That this
is an application for review and
therefore this Honourable Court
is disabled from taking
evidence.
9.
That this
application is in fact and in
law an application to adduce new
evidence in review disguised as
an application for leave to file
supplementary affidavit and
statement of case.
10. That
fresh evidence cannot be adduced
at this stage of the proceedings
because the Applicants have not
proven that these facts were
unknown to them at first
instance.
11.
That
assuming without admitting that
the testator was indeed
illiterate, the issue of his
illiteracy should have been
raised at first instance and
since it was not raised the
Applicants have slept on their
rights.
This
application has been brought
under rule 54 of C.I. 16 which
reads:
The Court may
review any decision made or
given by it on any of the
following grounds:
(a)
exceptional circumstances which
have resulted in 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 made.
According to
the applicants this application
is founded on both grounds.
Counsel for the applicants
writes in paragraph 4 of the
statement of case that “it is
the humble contention of the
applicants that the new matter
raised herein apart from
satisfying ground (b) for a
review as set out in Rule 54 of
C.I.16, is so strong as to even
meet the threshold of
exceptional circumstances which
have resulted in a miscarriage
of justice. In essence, the
applicants contend that the
allegation of the illiteracy of
the late Edward Kabu Otoo, will
also constitute an exceptional
circumstance resulting in a
miscarriage of justice in this
action. In the light of the
foregoing, the instant
application can be said to be
hinged on the two grounds for a
review cognizable by Rule 54 of
C.I. 16.”
Whilst I
examine the scope of rule 54,
supra, I will endeavour to place
the present application in the
context of the rule. An
applicant succeeds if he
satisfies either ground (a) or
(b) or both under rule 54. First
is the requirement for the
existence of exceptional
circumstances. This particular
provision has been the subject
of several interpretations and
applications by this court. I
would thus not dwell at length
on it except to make a few
references that are relevant to
the present discussion. In
NASALI
v. ADDY (1987-88) 2 G.L.R. 286
at 288 per Taylor JSC,
“the jurisdiction is exercisable
in exceptional circumstances
where the demands of justice
make the exercise extremely
necessary to avoid irremediable
harm to the applicant.” And in
the words of Francois JSC in
AGYEKUM v. ASAKUM ENGINEERING &
CONSTRUCTION LTD. (1992) 2
G.L.R. 635, at page 651
“the acid test remains as
always, the existence of
exceptional circumstances and
the likelihood of a miscarriage
of justice that should provoke
the conscience to look at the
matter again.” What is important
to state is that each case is to
be examined on its peculiar
facts and circumstances before
deciding whether exceptional
circumstances exist to justify
the court’s intervention with
its earlier decision. See the
case of
IN RE
EFFIDUASE STOOL AFFAIRS (NO. 3);
REPUBLIC v. NUMAPAU, PRESIDENT
OF THE NATIONAL HOUSE OF CHIEFS
and OTHERS; EX PARTE AMEYAW II
(NO. 3) (2000) SCGLR 59.
Thus in the case of
KOGLEX
(GH) LTD and Another v. ATIEH
(2001-2002) SCGLR 947
where the court found its
decision had unjustly enriched
the co-defendants, yet it
refused to review the decision
for lack of exceptional
circumstances. Thus the fact
that a valid legal ground exists
is per se not a ground for
review. See also holding 3 in
the case of
AGYEKUM and ALHASSAN v. AMADU
BABA and Another (2003-2004)
SCGLR 60. A
review application was allowed
in the case of
HANNA
ASSI (No. 2) v. GIHOC
REFRIGERATION & HOUSEHOLD
PRODUCTS LTD. (No. 2)
(2007-2008) SCGLR 16
when the court concluded that an
error in respect of jurisdiction
was fundamental to merit a
review. Thus the bottom line is
whatever legal point that was
relied upon must have resulted
in a miscarriage of justice by
the court’s decision.
But it is
observed in the cases cited
above and others which this
court has decided that, the
factual basis was existent on
the record which enabled the
court to decide on the
application. Thus at page 67 of
the record in the AGYEKUM and
ALHASSAN case, supra, the
court said that “it is important
to note that whenever a party
intends to impugn the legality
of a decision of a superior
court, the pleadings of that
party must sufficiently disclose
enough materials to demonstrate
on the face of his pleadings
that the decision was wrongly
made to deserve to be set
aside.”
In the
instant case, the application is
not founded upon existing facts
appearing on the face of the
record. It is my view that it is
not possible to talk about
exceptional circumstances when
the factual basis for the claim
is not present and apparent on
the face of the record. The
question of the Testator’s
illiteracy is sought to be
raised for the first time both
in terms of fact and law. The
ordinary bench of the court had
no opportunity to consider or
fail to consider the question of
the Testator’s illiteracy and
could not therefore be said to
have done anything wrong for
which a review could lie.
I am aware
that counsel for the applicants
sought to invoke rule 54(a) if
they successfully invoked rule
54(b). But even then if they
succeed under rule 54(b), it
would still not afford a basis
for saying special circumstances
exist since the ordinary bench
had no way of dealing with this
question. Rule 54(a) envisages a
situation where the facts and
evidence are in place on the
record, as distinct from 54(b)
where the applicant may bring in
new facts. For these reasons I
reject the application in so far
as it is founded under rule
54(a).
The
application appears to come
within the purview of rule 54(b)
for it is a new matter which is
sought to be introduced for the
first time on the record.
Counsel for the respondents said
it is fresh evidence that the
applicants seek to lead but
dressed in the garb of new
evidence. By whatever name one
calls it, what the sub-rule (b)
requires is that the matter or
evidence must first be new in
the case, second it must be
important and third and most
critical that it was not known
to the applicants upon due
diligence or if it was known to
them, that they could not
produce it at the time of the
court’s decision.
Under
sub-rule (b), an applicant may
introduce either a new matter or
new evidence. I start with what
is meant by ‘new evidence’. It
envisages a situation where an
issue has been raised in the
pleadings, the material facts
have been pleaded and probably
(but not invariably) the issue
has been set down as a triable
issue. However, the evidence
could not be introduced due, for
instance, to the unavoidable
absence of the sole or key
witness from court as a result
of severe physical impairment.
Let us assume for the purposes
of argument that the witness was
in a coma and so could not
testify, and this fact has been
noted on the record by the trial
court. The witness has recovered
since the ordinary bench
delivered its decision; in this
scenario the court could admit
his testimony as new evidence.
Or where at the trial a vital
document pleaded could not be
located and the fact has been
noted on the record but it is
found subsequent to the court’s
judgment. The court should be in
a position to admit it as new
evidence under rule (b). These
instances are by no means
exhaustive. The modality for
admitting such new evidence must
be left to the court to decide.
The court could either take viva
voce evidence itself by assuming
the power of a trial court under
Article
129(4) of the 1992 Constitution
or by way of affidavits, or
direct the court below to do so,
always mindful that the
principle ‘audi alteram partem’
is duly observed. Thus contrary
to the position taken by the
respondents in paragraph 8 of
the affidavit in opposition that
being an
application for review “this
Honourable court is disabled
from taking evidence”, it is
not disabled because the rule
permits new evidence to be
introduced even in a review
application if all the other
requirements are met and it is
in the overriding interest of
justice to do so.
It is clear
from the foregoing that the
instant application does not
meet the qualification of new
evidence since the issue of the
Testator’s illiteracy has never
been pleaded and is not said to
even arise by inference from the
pleadings, so there is no
factual basis upon which any new
evidence could be introduced.
What remains
is a consideration of the
application under ‘new matter’.
I think ‘matter’ as used in this
context means the subject-matter
for determination in a legal
proceeding which raises some
right, duty or liability to be
established. And once a matter
exists, the lawmaker provides
the means by which it would be
established. That
explains
the reason the court is
able to admit evidence even at
this stage. The question of the
Testator’s illiteracy is thus a
matter within the meaning of
rule 54(b). A new matter is thus
a matter which has not been
raised throughout the
proceedings and on which no
determination has been made by
the court. Let us take an estate
matter which was contested on
the basis that the deceased died
intestate. After the Supreme
Court judgment it is then
discovered for the first time
that the deceased actually died
testate. The discovery of the
Will thus become a new matter
within the meaning of the
sub-rule (b) which the court
would be entitled to take into
account and reverse its earlier
decision, if other criteria
under the sub-rule are
satisfied.
The next
criterion is the importance of
the illiteracy of the late
Joseph Kabu Otoo as a factor to
consider. There is no denying
that it is also an important
matter because the existing
legislation namely, Illiterates
Protection Ordinance, Cap 262
imposes the requirement of
interpretation of any document
to an illiterate before he sets
his mark thereto. Without such
‘jurat’ the document could not
be valid as against the
illiterate. That legislation is
particularly important when it
applies to a Will since it takes
effect only after the demise of
the testator who thus would not
be available to say that it was
his deed. So the ‘jurat’ must
appear on the face of the
document evidencing the Will if
in truth the testator was
illiterate. See the following
cases on the application of Cap
262:
KWAMIN v. KUFFUOR (1914) 2REN.
808; WAYA v. BYROUTHY (1958) 3
W.A.L.R. 413; FORI v. AYIREBI
and Others(1966) G.L.R. 627 S.C.
The second criterion is thus
satisfied.
The third and
final criterion is the necessity
to satisfy the court that the
applicant
exercised due diligence in
respect of one of two
situations: either the new
matter was not within his
knowledge, or if within his
knowledge he could not produce
it at the time of the court’s
decision. C.I. 16 does not
define diligence or due
diligence, as the case may be.
We ought therefore to have
recourse to other legal sources
for the meaning of the
expression.
Black’s
Law Dictionary, 9th
Edition, at page 522 defines
‘diligence’ to mean i. a
continual effort to accomplish
something. ii. Care, caution,
the attention and care required
from a person, in a given
situation. And at page 523 ‘due
diligence’ is defined as the
diligence reasonably expected
from, and ordinarily exercised
by, a person who seeks to
satisfy a legal requirement or
to discharge an obligation, also
termed common diligence or
reasonable diligence. Reasonable
diligence is defined at the same
page 523 as ‘a fair degree of
diligence expected from someone
of ordinary prudence under
circumstances like those at
issue’.
To my mind
the underlying strand in these
definitions is care on the part
of the applicant. In litigation
a party ought to exercise some
amount of care in prosecuting
his case, nothing should be
taken for granted. In that
respect I agree with the view
expressed by Willmer, LJ, in the
case of
MEAT CO. PTY. LTD. v.
LANCASHIRE SHIPPING CO. LTD.
(1960) 1 All ER 193 at
219, CA, where he said “an
obligation to exercise due
diligence is
…..indistinguishable from an
obligation to exercise
reasonable care.”
The Counsel
for the applicants graciously
admitted that the applicants
were aware the Testator was
illiterate. Consequently I hold
that the first option of a lack
of knowledge of the new matter
is inapplicable.
It seems that
what the applicants seek to rely
upon is the fact that they did
not produce it because their
previous lawyers had not asked
the relevant questions to
provoke the appropriate answer
from them that the testator was
illiterate. Does this satisfy
the requirement of due
diligence? Did they exercise
that reasonable amount of care
that every litigant must
exercise in the conduct of their
case? In the prosecution of a
case a party decides which part
of numerous pieces of evidence
to put before the court in proof
of his case. And legal advisers
who advise the parties must ask
such relevant questions as will
aid them in conducting the case.
Thus where, as in this case, the
facts have been within the
knowledge of the party from day
one, I am not able to agree that
the party exercised that
reasonable care or due diligence
in telling his whole story to
the court. They had every
opportunity from the trial court
where the issue of the Will was
central to the litigation to
raise such an issue if indeed it
existed as a fact. Reasonable
care would dictate to any
ordinary person to ask the
question how come an illiterate
person executed a written deed,
like a Will. It does not require
a lawyer to challenge the
proponent of such a document to
prove that indeed the illiterate
did execute the document to make
it his own.
It seems
clear the applicants have not
exercised any diligence at all
in as far as this matter is
concerned since they admit
having been aware of it all
along. We cannot also lose sight
of the fact, as Counsel for the
respondents pointed out, that
since probate of the will was
taken some seventy years ago,
some rights have been acquired
thereby which must not be
disturbed, especially by the
careless attitude of the
applicants. For these reasons I
do not consider it proper to
grant this application; I reject
same accordingly.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL.
GODFRED
YEBOAH DAME ESQ. (WITH HIM
FREEMAN SABBAH) FOR THE
DEFENDANTS /APPELLANTS/
APPELLANTS/APPLICANTS .
DIANA ASONA
DAPAAH ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
APPELLANTS /RESPONDENTS. |
