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RULING

JOYCE BAMFORD-ADDO J.S.C.

This is an application for special leave by Plaintiff/Respondent/Appellants to enable them to  Appeal to the Supreme Court against the judgment of the Court of Appeal dated 23rd July 1998 in the above-mention case.

This application is made under Article 131(2) of the Constitution and Rule 7(4) of C.I. 16.

Even though the normal time limited for Appeal from a decision of the Court of Appeal in civil matters is 90 days under rule 8(b) of C.I. 16, in this case applicants having run out of time have now come to this Court to ask for special leave to appeal almost 4 years after the judgment of the Court of Appeal sought to be appealed was given By:

“Article 131(2) Notwithstanding clause (1) of this Article the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or, criminal and may grant leave accordingly.”

See also the provisions of Rule 7(4) of C.I. 16 to similar effect. The power to grant special  leave by this court is discretionary and is granted only in certain special circumstances in the interest of Justice.

This motion was filed on 4/6/2002 and is support by affidavit dated 3rd June 2002.  The Court of Appeal’s judgment dated 23/7/1998 was delivered almost 4 years ago.

The long delay in prosecuting an appeal in this court was laid at the door of the various Lawyers of the Applicants who made mistakes as to the proper-procedure or proper leave to obtain before filing appeal to this Court.  Further applicants attacked the said judgment as erroneous on a number of issues which according to them has occasioned a miscarriage of justice on these  grounds they argued that they be granted special leave. The applicants’ application was opposed by the Respondent on the ground that no good reasons have been demonstrated to enable them to obtain special leave.

The brief facts of this case are that the  plaintiffs now applicants herein, sued the Defendant now Respondent at the Circuit Court for the following reliefs i.e. for

a) The sum of One hundred thousand cedis ¢100,000 for trespass to plaintiffs and known as Bortogina land.

b) Perpetual Injunction restraining the defendants, their agents, servants and licencees from committing further acts of trespass on the said Bortogina land.

At the end of the trial at the Circuit Court judgment was given on 1st day of September 1995 for the Plaintiffs. Dissatisfied with the judgment, the Defendant appealed to the Court of Appeal which allowed the Appeal and set aside the Judgment of the Circuit Court on 23rd July, 1998.

After the judgment on 23/7/1998 the applicants appointed a new Lawyer who filed Appeal to the Court on 18/8/98 without first obtaining the leave of the Court of Appeal as required by Article 131(b) of the Constitution. Nothing happened again until leave to withdraw appeal filed on 18/8/98 was granted  by this Court on 5/3/2002 with costs.

Therefore counsel went back to the Court of Appeal to ask for an order extending time for him to file appeal which was dismissed. The reason for this refusal by the Court of Appeal is as follows:-

“ The application fails for the simple reason that it does not satisfy the constitutional requirement that the applicant demonstrates that the appeal raises substantial point in law or concerns a matter of public interest. Application is consequently dismissed”.

The applicants then filed an application under Article 131(2) of the Constitution for special leave to appeal the judgment of the Court of Appeal given 4 years earlier dated 23rd July 1998 on the grounds already referred to above.  These are contained in paragraphs 15 and 16  of the affidavit in support of the motion of applicants namely:

“15. That I am informed and believe the same to be true that the mistakes of the Counsel ought not to be visited on parties and that the only way left for us to appeal to this Honourable Court for special leave to the Supreme Court and the long delay should not be laid at our doorstep.

16. That I am informed and believe the same to be true that the decision of the Court of Appeal amounts to a gross error in law and has led to a huge miscarriage of justice.”  

In considering this application the law is that the power to grant special leave under Article 131(2) is a very special discretionary power to be exercised in deserving cases, where new points of law of national interest is raised, and each case depends on its merits.    

Certain guidelines are to be followed when the court is exercising this discretion.  These were set out in the case of Dolphyne (No.2) v. Speedline Stevedoring Co. Ltd (1996-97) SC GLR. 373 it was held that in applications for special leave:

"The principles to be applied as guides – on which the  Supreme Court might determine whether we grant leave to appeal or not were:

a) Whether there was a prima facie error on the face of the record or

b) A general principle of law had arisen for the first time or

c) A decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public.

Nimoh v. Dadzie (1962) GLR 327 was applied".

This case was also followed and applied in the case of Joseph  Kotey v. Peter Kofi Koletey CM. No. 2/2000 dated 8th November 2000 on which I sat.  In my ruling I stated in that case that the Supreme Court has unfettered discretion in the grant of special leave.

I said that:

“Since no conditions were imposed under the rules the matter was left  at large in Article 131(2) and Rule 7(4) that the grant of special leave is at the discretion of the Court and not fettered by any rules of procedure or any law nor should the court lay down a set of iron rules on which the discretion of the Court was always obliged to run”. 

I continued that “ the time within which an application for special leave under rule 7(4) can be brought, as I said  depends on the discretion of the Supreme Court and the Court must also be satisfied that the case involves a substantial, question of law or is in the public interest that:

The principles to be applied are set out in Holding 3 above in the Dolphyne case supra.  But quite apart from the guidelines provided, in that case, I hold the view that the  Court’s discretion must be judicially and reasonably exercised considering such other matters as public policy and other principles concerning  the necessity for finality in litigation as well as the need for prevention of delay in the administration of justice, bearing in mind  that inordinate delay in pursuing an appeal could adversely affect the acquired rights of other parties with consequent injustice to them.”

The above stated principles are those I intend to apply in the consideration of this application.  The grounds relied on for the present application are stated earlier on that, there were errors in the judgment of the Court of Appeal and that the delay of about 4 years in bringing the proper application to this court within the specified time was due to their Counsel’s mistake and should  not be laid at their doorstep.

In respect of the said delay, it is my view that  4 years delay in inordinate and inexcusable and I cannot accept it as legitimate and justified even if it is due to the fault of the Applicants Solicitors or Counsel.  see the case of Allen v. Sir Alfred Mac Alpine and Sons Ltd. (1968) 2QB. 299; 2 WLR 306 Court of Appeal at p. 371 per Lord Denning M.R.

“ The principle upon which we go is clear when the delay is prolonged and inexcusable and is such as to do grave injustice to  one side or the other or to both, the court may in its  discretion dismiss the action straight away leaving  the Plaintiff to his remedy against his own solicitor who has brought him to his plight”.

To accept this kind of delay as excuse would defeat the avowed aim of expediting delivery of justice in the administration of justice.

Regarding the issue of gross error in the judgment of the Court of Appeal the nature of the error specified are not of the type envisaged in the above stated guidelines as set out above.

Considering this application for special leave vis-à-vis the guiding principles as well as the circumstances of this case I am satisfied that no adequate or good reasons has been shown to enable me to  grant special leave to appeal.  I would consequently refuse the application.

J.A. BAMFORD-ADDO (MRS)

JUSTICE OF THE SUPREME COURT

ADJABENG, J.S.C.:

I agree that the application be dismissed.

E.D.K. ADJABENG

JUSTICE OF THE SUPREME COURT

ADZOE, J.S.C:

On 18th February, 1985 the plaintiffs (who are the applicants herein) commenced an action against the defendants (the respondents herein) at the Circuit Court, Sekondi, claiming damages for trespass to a piece of land. They also claimed for an order of perpetual injunction. The defendants denied the plaintiffs’ claims and said they were put on the land by the Shama Stool to farm thereon. The chief of Shama later joined the suit as Co-defendant. The court appointed a surveyor who prepared a plan of the land in dispute and tendered it in evidence as Exhibit “A”.  At the end of the trial, the Circuit Court Judge gave judgment for the plaintiffs.

The defendants appealed to the Court of Appeal. In a unanimous judgment, the Court of Appeal on 23rd July, 1998 allowed the appeal, reversed the Circuit Court and dismissed the plaintiffs’ claims, holding that the plaintiffs had “failed to clearly identify the land in dispute”. Before this judgment was delivered, the plaintiffs’ lawyer had withdrawn from the case, and after the judgment, a new lawyer filed on their behalf a Notice of Appeal to the Supreme Court. The Notice was filed on 17th August, 1985 but counsel made a serious mistake: he filed the notice without obtaining leave of the Court of Appeal as required by Article 131(1)(b) of the 1992 Constitution.  Counsel was apparently unaware of this requirement. He thought he had done his work, and so he waited for the case to be listed before the Supreme Court. The case came up on 5th March, 2002.  This court discovered that the appeal was not properly before it because the plaintiffs had not obtained the requisite leave to appeal.  On that day 5th March, 2002 counsel for the plaintiffs was compelled to withdraw the appeal. Costs of ¢1,000,000.00 was awarded against the plaintiffs.

After the withdrawal counsel went back to the Court of Appeal on an application for extension of time to now obtain leave and file a fresh appeal, but the Court of Appeal dismissed the application on 3rd April, 2002.  The plaintiffs were again mulcted in costs of ¢2,000,000.00.

It was thereafter that they brought the present application before this court on 4th June, 2002, praying for special leave to appeal against the judgment of the Court of Appeal dated 23rd July, 1998. This was almost three years and ten months after the said judgment of the Court of Appeal.  The application is brought under Article 131(2) of the Constitution. Counsel for the plaintiffs has referred us to the judgment of the Circuit Court wherein the Judge held, inter alia, that:

“A study of the plan (Exhibit “A” shows that the land in dispute forms part of the land purchased by the ancestors of the Plaintiffs … In fact the land in dispute forms part of the Bortogina land …. The defendants took a lease of that land in 1983.  By 1950 the West African Court of Appeal had decreed the Plaintiffs’ ancestors as owners of all the lands known as Bortogina lands… I find as a fact that the time the Defendants took a lease of that land, the co-defendants had long ceased to be owners of that land. Since the co-defendants are not the owners of that land, they leased nothing to the Defendants. NEMO DAT QUOD NON HABET”.

He has also referred us to the judgment of the Court of Appeal the relevant portion of which reads as follows:—

“From the above it is crystal clear that the plaintiffs were unable to show the court surveyor, i.e. CW1 the boundaries of their land as set out in their claim or surveyor’s instructions. How then can the land being claimed by them be declared to be in their possession and also impose perpetual injunction on it against the defendants as requested. Clearly the identity of the land claimed by the plaintiffs not having been established, I fail to see how they could be granted judgment by the court below”.

Counsel has contended that:

“… the decision of the Court of Appeal has led to a serious miscarriage of justice as I believe that the Court of Appeal fell into serious error in its judgment and that the cause of justice will be best served by this court exercising its discretion in favour of the Applicants and granting the Applicants special leave to appeal against the judgment of the Court of Appeal dated 28th September, 1998”.

The Supreme Court’s appellate jurisdiction as conferred on it by the Constitution is as follows under Article 131:

“131(1)  An appeal shall be from a judgment of the Court of Appeal to the Supreme Court:—

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its jurisdiction; on

(b) with leave of the Court of Appeal, in any other cause or matter, where the case was commenced, a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.

(2) Notwithstanding clause (1) of the Article the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly”.

These provisions are repeated in section 4 of the Courts Act, 1993, (Act 459).  The power vested in the Supreme Court to grant special leave to appeal to the court is wide; it is a discretionary power without limits. It is clearly out of tune with the normal rules regulating appeals, which Akuffo-Addo, J.S.C., summarised as follows in Nye v. Nye (1967) GLR 76, at pages 82-83.

“…there is no inherent right of appeal in a litigant; nor indeed is there an inherent power in any court to hear appeals.  Both the right and the power are creatures of statutes, and unless the enactment creating the right of appeal is explicit, clear and unambiguious in its language, no such right and no such power can ever materialise. When however the right and the power do materialise, they are excercisable only within the framework of the conditions imposed for their exercise”.

The power conferred on the Supreme Court by Article 131(2) is one with a difference.  Article 131(1) and (2) must be read together with Rule 7 of the Supreme Court Rules, 1996, C.I. 16.  Two situations emerge. The first is governed by Article 131(2) and rule 7(2) of C.I. 16. Under these provisions, if a party applied under Article 131(1) (b) to the Court of Appeal for leave to appeal to the Supreme Court against a judgment of the Court of Appeal in a case which commenced in a court lower than the High Court or a Public Tribunal, and the Court of Appeal refused to grant the leave, the applicant may then apply to the Supreme Court for special leave to appeal to the Court. In such a case, the application to the Supreme Court must be made to the Supreme Court within fourteen days from the day the Court of Appeal refused to grant the leave.

The second situation arises under Article 131(2) and rule 7(4) of C.I. 16.  Here, it is simply provided that notwithstanding the position described above under Article 131(2) and Rule 7(2) of C.I. 16, referred to above the Supreme Court may entertain an application for special leave to appeal and may grant leave on such terms as the court may consider fit having regard to the circumstances of the case.

Charles Hayfron-Benjamin reconciled the two situations as follows:—

“In our respectful view, therefore, the word “notwithstanding” as appears in Article 131(2) means that without being affected by the provisions of clause (1) of Article 131, this court may entertain an application for special leave to appeal.  In other words, this court may in appropriate cases ignore the provisions of Article 131(1) and grant special leave to appeal so that the ends of justice might not be defeated”. [vide. Dolphyne (No. 2) v. Speedline Stevedoring Co. Ltd. (1996-97) SCGLR 373, at page 381.]”

It may be observed that no time limit is prescribed for applications under Article 131(2) and rule 7(4) of C.I. 16 for special leave, and no conditions are attached to the grant thereof.  The court’s power is unfettered and to borrow the words of Bower L.J. in In Re Manchester Economic Building Society (1883) 24 Ch. D 488, “… the Rules leave the matter of large.  Of course it is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood”. In Kotey v. Kotey (2000) SCGLR 417, at 422, Bamford-Addo, J.S.C. called it “a special favour which is given to litigants who have good and valid appeals, to enable them to appeal even though they are, under the Rules of Court, out of time within which to appeal so as to prevent a failure of justice”. For a justification, this court expressed the view that the intendment of Article 131(2) is that the Supreme Court being the highest court of the land must neccesarily be invested with unfettered discretion to do justice (see the Dolphyne case supra at page 423, per C. Hayfron-Benjamin J.S.C.).

Again, in the same Dolphyne case this court adopted and relied on some principles set out in Nyimoh v. Dadzie (1962) 1 GLR 327, to guide the court in the exercise of its discretion.  They are: (1) whether there is a prima facie error on the face of the record; (2) whether a general principle of law has arisen for the first and has to be considered; and (3) whether a decision of the Supreme Court on the point sought to be appealed against will be advantageous to the public.  Indeed Article 131(1)(b) also stipulates that when an application is made to the Court of Appeal for leave to apply to the Supreme Court the leave may be granted if the court “is satisfied that the case involves a substantial question of law or is in the public interest”.  [vide Article 131(1)(b)].  What it all comes to is that, in the words of Atuguba, J.S.C. “although an application for normal leave must show some merits in the intended appeal, an application for special leave must do more than that; it must also give good and convincing reasons why the application is special”.  (vide Kotey v. Koletey, supra, at page 445.

In Kotey v. Koletey (supra) the learned law lords of this court stressed the need for this court to consider other matters in addition to the guiding principles set out above. These other matters include:  Public policy; the need for litigation to come to an end; the need to avoid in ordinate delay in litigation; and respect for the rules of court. To these I will also add the need to avoid prejudice or hardship or inconvenience to the party in whose favour the judgment which is to be appealed against was given.

It is true that in the Dolphyne case and also in Kotey v. Koletey  (supra) where the trend of events was quite akin to events in the present case before us, the special leave was granted, but when we enter the area of judicial discretion no one case can stand out as judicial precedent to delimit our path.

In the present case the plaintiff are not personally to blame.  The fault lies with their lawyer who filed the initial appeal without obtaining leave from the Court of Appal.  However, even though it is often said that the sins of counsel must not be visited on the client, in an application for special leave, the applicant must demonstrate that there is something special which entitles him to the grant. The plaintiffs here urge on us, as their ground for the application that there is a serious error in the judgment of the Court of Appeal which has led to a miscarriage of justice. From the judgments of the trial Circuit Judge and the Lords of the Court of Appeal, what is obvious is that the issue of trespass or no trespass was rather fine. The trial court found trespass; the Court of Appeal held that there was no trespass, and that an injunction could not be granted in respect of a piece of land whereof all the boundaries were not established. One of the two courts was probably right and the other wrong having regard to the evidence. But that is not the issue before us. The question is whether or not the Court of Appeal judgment amounted to miscarriage of justice, as contended by the plaintiffs. In my opinion the plaintiffs have not made out a case of miscarriage of justice. Any complaint against that judgment is a matter to be decided by an ordinary appeal if leave were duly obtained. It does not fall for special leave. I am inclined to agree with the defendant that the delay for nearly four years is inordinate; that there has been no miscarriage of justice, and also that there is no substantial question of law raised by the appeal. This application for special leave cannot be entertained, and I also agree that it should be dismissed.

T.K. ADZOE

JUSTICE OF THE SUPREME COURT

KPEGAH, J.S.C.:

I agree that the application be dismissed.

F.Y. KPEGAH

JUSTICE OF THE SUPREME COURT

AFREH, J.S.C.:

I also agree that the application be dismissed.

D.K. AFREH

JUSTICE OF THE SUPREME COURT

COUNSEL

Mr. Ebow Dawson for Applicant.

Mr. Samuel Dzigba for the Respondents.

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