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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. |
