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GHANA BAR REPORT 1993 -94 VOL 2

Odonkor and others v Amartei (No 2)

SUPREME COURT

FRANCOIS, WUAKU, AMUA-SEKYI, AIKINS, WIREDU, BAMFORD-ADDO, HAYFRON-BENJAMIN JJSC

9 FEBRUARY 1993

 

Courts – Supreme Court – Review – Applicants having lost on concurrent findings in High Court, Court of Appeal and Supreme Court – Principles for determining application for review of Supreme Court decision.

Legal Practitioners – Counsel – Forensic language and decorum – Counsel to employ elegant and sober language in submissions – Judges’ errors to be pointed out with judicial logic and sober argument, not in language of inordinate, impassioned anger or unbridled passion and tantrum.

Law reform – Supreme Court - Review - Need for less stringent rules for review.

Courts – Supreme Court – Panel – Need for all judges to sit on all matters.

Customary law Land - Declaration of title Burden of proof for declaration of title higher than possession or trespass.

Customary law – Land – Prescription – Whether exists in customary law.

The applicants who had lost in succession in the High Court, Court of Appeal and the Supreme Court applied for review of the decision of the Supreme Court reported sub nom Odonkor v Amartei [1992-93] GBR 59.

Held, The application would be dismissed for the following reasons: (1) A review was not generally an appropriate forum for revisiting a judgment either to elaborate on statements made or to criticise. The only permissible areas of discussion related to exceptional circumstances and interest resulting in grave miscarriage of justice and the need for the reversal of the judgement in the interest of justice. The court would not review its decision where it was sought to re-open the case and prosecute an appeal in the guise of a review or repeat arguments already offered at the hearing of the appeal or raise fresh matters that could have been raised in the appeal or to interpret previous decisions of the court with a view to breaking new grounds. Kumnipah v Ayirebi [1987-88] 1 GLR 265, SC, Swaniker v Adotei Twi II [1966] GLR 151, Aschkar v Karam [1972] 1 GLR 1, CA, A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, CA, Fosuhene v Pomaa [1987-88] 2 GLR 105, Nartey-Tokoli v Volta Almunium Co Ltd [1989-90] 2 GLR 513, Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, Nasali v Addy [1987-88] 2 GLR 286, Rep v High Court; Ex parte Togbe Gobo Darke 17 November 1992, SC applied.

Per Wuaku JSC. The grounds for review under the constitution are wider in scope than under the Practice Direction in Kumnipah v Ayirebi [1987-88] 1 GLR 265. The Rules Committee ought to prescribe rules of court that may be less stringent than the Practice Direction.

Per Francois and Wiredu JJSC contra: A number of refinements explain “exceptional circumstances”, some of which are clearly unacceptable and unwarranted extensions to the rule, while some blur the difference between appeals and review even to the extent of challenging the viability of such a distinction.

Per Francois JSC. A review to address a patent error is an application to the court to correct its own error. If an enhanced panel adds its weight to the minority to convert a previous minority judgment to one of majority, with judges not shifting their stance on their view of the law, for instance, the result becomes unacceptable because the exercise ceases to be one of a court correcting its own error but becomes an appeal with a differently constituted panel sitting in judgment over its peers and postulating better knowledge of the law. A review decision that endorses an original decision of the court should carry considerable weight. But one that perpetuates a narrow division, with actors swapping sides, lacks the substance to compel a classification as precedent. Indeed it leaves the issue wide open for a future authoritative pronouncement. The analysis anticipates two types of mischief. Firstly, instead of concluding cases speedily, litigants are granted the indulgence to continue to press impossible claims in the hope that an amenable Bench would overturn a decision. Secondly, it gives rise to speculation, that Benches may be packed to give a desired result.

Per Wuaku JSC. As far as possible all Supreme Court justices must sit on all matters before the court and where the panel is equally divided the case ought to be considered lost.

(2) Per Francois, Aikins JJSC. However emotionally overheated one may be, members of the legal fraternity have a duty to conform to the time-honoured practice of comporting themselves always with decorum and dignity. This must be reflected in the language they employ which should be of measured elegance and sobriety. Judges do make mistakes; there is no doctrine of judicial infallibility but the errors of judges must be pointed out with judicial logic and sober argument. Having failed in the appeal


 

itself there was no need for counsel to use the review to vent their feelings in an inordinate and impassioned anger upon the learned justices of the court and counsel on the opposite side. This practice of some counsel to fly into unbridled passion and tantrum at the least provocation must be strongly deprecated.

Per Francois JSCobiter: There seems to be creeping into our land law a conception that all land suits can be won on a preponderance of evidence. This perception fails to grasp the peculiar nature of a declaratory title to land. For, while preponderance of evidence may suffice in a suit for recovery of possession or trespass simpliciter, a higher burden of proof is required to be discharged for land title suits.

Per Francois JSC. A host of cases establishes that usucapio does not apply in our land law.

Per Hayfron-Benjamin JSC contra:  In Ga customary law a person may acquire title to land by prescription. Ollenu’s learned treatise Customary Land Law in Ghana ignored the equally erudite report of R H J Pogucki on Land Tenure in Customary Law of Non-Akan Areas. Pogucki’s report, coming from a person who had no ethnic bias but was minded to produce a professional report, must be given due weight.

Cases referred to:

A/S Norway Cement Export Limited v Addison [1974] 2 GLR 177, CA.

Abinabina Stool v Nkasawura Stool (1956) 1 WALR 247.

Anane v Donkor; Kwarteng v Donkor (Consolidated). [1965] GLR 188, SC.

Ansah v Boakye Written Civil Judgments July - December 1963 p 5.

Aschkar v Karam [1972] 1 GLR 1, CA.

Bedu v Agbi [1972] 2 GLR 238, CA.

Duedu v Yiboe [1961] GLR 346, [1961] 1 WLR 1040, 105 SJ 566, PC.

Fiscian v Nelson (1946) 12 WACA 21.

Fofie v Kofi Written Civil Judgements January - June 1964 p 134.

Fosuhene v Pomaa [1987-88] 2 GLR 105, SC.

Jones v Secretary of State  [1972] 1 All ER 145, [1972] AC 944, [1972] 2 WLR 210, 116 Sol Jo 57, HL, 30 Digest (Reissue) 265.

Khoury v Lawson  23 June 1992, SC.

Kodilinye v Odu (1935) 2 WACA 366.

Kotei v Asere Stool [1961] GLR 492, PC.

Kuma v Kuma (1938) 5 WACA 4, PC.

Kumnipa v Ayirebi [1987-88] 1 GLR 265, SC.

Kwame v Fio [1961] GLR 124, SC.

Malm v Lutterodt [1963] 1 GLR 1, SC.

Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2 GLR 598, SC.

Mieh v Asubonteng [1963] 2 GLR 37, SC.

Miller v Kwayisi (1930) 1 WACA 7.

Mosi v Bagyina [1963] 1 GLR 337, SC.


 

Nartey-Tokoli v Volta Aluninium Co Limited [1989-90] 2 GLR 513, SC.

Nasali v Addy [1987-88] 2 GLR 286, SC.

Odoi v Hammond [1971] 1 GLR 375, CA.

Practice Direction [1987-88] 2 GLR 274.

Rafat v Ellis (1954) 14 WACA 430.

Rep v High Court, ex parte Togbe Gobo Darke 17 November 1992, Supreme Court,

Ricketts v Addo; Ricketts v Borbor (Consolidated) [1975] 2 GLR 158, CA.

Serwah v Kesse [1960] GLR 227, SC.

Sobanjo v Adesina Oke (1954) 14 WACA 593.

Suleman v Johnson (1951) 13 WACA 213.

Summey v Yohonu [1962] 1 GLR 160, SC.

Swaniker v Adotei Twi II [1966] GLR 151, SC.

APPLICATION for review of the judgement of the Supreme Court.

E D Kom,  with him D A Aponsah,  for the applicants.

James Ahenkorah for the respondent.

FRANCOIS JSC. The opinion I express on this application is in two parts. First, on the merits and second, the manner in which the application has been brought.

It is rare in the history of litigation in this country to find a case travelling through three hierarchies of judicial authority with all nine Superior Court judges who have dealt with it demonstrating singular unanimity in pronouncing for the same party. In an imperfect world, the possibility that all the nine eminent jurists could be wrong cannot be ruled out, even though it may appear an extremely unlikely event. Moreso when the matters challenged are matters of elementary law, not only residing comfortably in the bosom of judges, but are the outpouring of words of wisdom daily spouted from their lips.

An opportunity, however, is given once more to redefine the boundaries of the review jurisdiction of the Supreme Court, which should be seized. One could simply reiterate definitions set out in Kumnipa v Ayirebi [1987-88] 1 GLR 265 permitting a review only on the existence of exceptional circumstances necessitating a second look in the interest of justice or repeat the direction stated in Practice Direction [1987-88] 2 GLR 274.

But since the Kumnipa case, a number of refinements have appeared to explain “exceptional circumstances”, some of which are clearly unacceptable and unwarranted extensions to the rule, while some blur the difference between appeals and review even to the extent of challenging the viability of such a distinction.

A review is not generally an appropriate forum for revisiting a judgment either to elaborate on statements made or to criticise others. The only permissible area of discussion relates to the ascertainment of “exceptional circumstances” compelling a reversal of the judgment in the interest of justice.


 

The provision in the constitution allowing for an enlarged Bench in reviews does not transform the court into an appellate Bench. A review to address a patent or evident error, is an application to the court to correct its own error. Obviously then if an enhanced panel adds its weight to the minority to convert a previous minority judgment to one of majority, with judges not shifting their stance on their view of the law, for instance, the result becomes unacceptable because the exercise ceases to be one of a court correcting its own error, but becomes an appeal with a differently constituted panel sitting in judgment over its peers and postulating better knowledge of the law.

In my view, a review decision that endorses an original decision of the court should carry considerable weight. But one that perpetuates a narrow division, with actors swapping sides, lacks the substance to compel a classification as a precedent. Indeed it leaves the issue wide open for a future authoritative pronouncement.

This analysis anticipates two possible types of mischief. Firstly, instead of concluding cases speedily, litigants are granted the indulgence to continue to press impossible claims in the hope that an amenable Bench would overturn a decision; see Jones v Secretary of State  [1972] 1 All ER 145.

Secondly, it gives rise to speculation, that Benches may be packed to give a desired result. All attempts to nurture the review jurisdiction to be productive of true justice and not its subversion, would then come to nought.

Turning to the instant application, the essential matters raised for determination relate to the quality of proof, prescriptive and possessory title and estoppel.

Each of the above issues was exhaustively considered by the respective tiers of adjudication. We have been compelled to look at them again. Arguments have been churned, rehashed and regurgitated. The whole process has become one of appeal and not a review. If even one is disinclined to endorse fully the foundations of other judges on the issues raised, they fail either singly or cumulatively to create exceptional circumstances. Perhaps I may be permitted to expand on this.

There seems to be creeping into our land law, a conception that all land suits can be won on a preponderance of evidence. The Evidence Decree 1975 (NRCD 323) is urged as the point of justification. This perception fails to grasp the peculiar nature of a declaratory title to land. For while preponderance of evidence may suffice in a suit for recovery of possession or trespass simpliciter, a higher burden of proof is required to be discharged for land title suits.

For instance, failure to prove a single boundary of one’s land may be disastrous in a claim to title; see Bedu v Agbi [1972] 2 GLR 238, CA, Sobanjo v Adesina Oke (1954) 14 WACA 593, Anane v Donkor, Kwarteng  v  Donkor (Consolidated) [1965] GLR 188, SC.

Again proof of root of title is essential for a declaration even though on the level of evidence adduced the plaintiff’s evidence


 

 may appear more preponderant. See Abinabina Stool v Nkasawura Stool  (1956) 1 WALR 247 at 253, Odoi v Hammond [1971] 1 GLR 375 at 382, Fofie v Kofi Written Civil Judgements, January - June 1964 page 134.

There is also the importance in declaratory suits of proving satisfactorily the precise area of the grant, the preponderance of evidence notwithstanding; see Kwame v Fio [1961] GLR 124 and Ansah v Boakyem Written Civil Judgments, July - December 1963 p 5 at 14 where Akufo-Addo JSC stated:

“…one of the essential requisites to be proved in an allegation of a grant of land is the precise area of land alleged to have been granted.”

Sight must not be lost of the fact that failure of a plaintiff’s claim for title can yield nothing higher than judgment for defendant. If the defendant seeks to establish his own title he must counterclaim or sue on the judgment obtained. See Duedu v Yiboe  [1961] GLR 346.

In sum, there are essential criteria to be established that transcend mere preponderance of proof in a claim of title to land. I disclaim the honour of authorship ascribed to me elsewhere in pointing to this quality of proof. Though flattering, it unfortunately betrays ignorance of land law, which the cases teach and which one hopes students of land law will imbibe and assimilate.

An erroneous concept also seems to be peddled that the heavy burden of proof laid down in Kodilinye v Odu (1935) 2 WACA 366 has been displaced by Summey v Yohonu [1962] 1 GLR 160  and Serwah v Kesse [1960] GLR 227 where reference was made to the civil burden of preponderance in contradistinction to the criminal onus of “beyond reasonable doubt”; neither does the perceptive reasoning of Amissah JA in Ricketts v Addo; Ricketts  v Borbor (Consolidated) [1975] 2 GLR 158, setting limits to the Kodilinye principle, appear to be well understood.

These judgments, on a true reading, merely attempted to show the extent of the principle in Kodilinye v Odu. Fortunately, the leading judgment in the original appeal reported in [1992-93] GBR 59 sums up the point adequately in the statement of Hayfron-Benjamin JSC at p 72 thus:

“Appellants had no case and the issue of its weakness therefore did not arise.”

I have dwelt at length on the area of proof, to reject the view that the measure of proof in title cases can be based simply on the preponderance of evidence.

Turning to prescriptive title, Kuma v Kuma (1938) 5 WACA 4 and Mieh v Asubonteng [1963] 2 GLR 37 and a host of cases, state clearly that usucapio  does not apply to our land law.

Indeed in Kuma v Kuma the essential holding was “that long undisturbed possession of land either by a trespasser or by a person with a limited interest cannot ripen into title to land”.

But on the defendants own admission, the plaintiff had been in possession for over two and half centuries. Homage or tribute had ceased to be exacted. Indeed on the evidence, the plaintiff’s grant could be likened to a gift or usufruct without any commutable burdens or obligations - the binding strings of a qualified or non-absolute grant. In those circumstances the plaintiff could utilise the land as he wished. It had become an irrevocable possession.

But looking at the other side of the coin, the beneficiary had treated the land as his own, making sales, grants and settlements without let or hindrance for over two and half centuries. There had consequently been the conferment of an expanded interest, analogous to an absolute gift, which the passage of time had perpetually sealed; see Kotei v Asere Stool [1961] GLR 492, Malm v Lutterodt [1963] 1 GLR 1.

If it is urged that the applicants still retain title, it would mean they had sat by for 250 years while the respondents developed the land, without a whimper of protest. They would have lost rights, both legal and moral, for a reinstatement of anything they previously possessed.

The classic example of what happens in such a scenario is the case of Fiscian v Nelson (1946) 12 WACA 21. There the court said that although prescriptive title was unknown to our customary law, an owner would not be allowed to claim land where he had stood by for a long time while someone else occupied the land and incurred pecuniary commitments under the impression that he was entitled to the land. See also Miller v Kwayisi (1930) 1 WACA 7, Suleman v Johnson (1951) 13 WACA 213 and Rafat v Ellis (1954) 14 WACA 430.

In sum, the respondent proved his title which was not met by the defence. It was not proof on the balance of probabilities or preponderance of evidence but by the overwhelming discharge of the onus probandi of the elements necessary for a declaration. Most importantly the exertions of the respondent in discharging this onus did not derive their essential force of validity from any weakness of the defence.

The second matter this opinion addresses is fundamental to the continued health of our judicial system. It relates to the insolent broadside counsel has fired at judges, whose judicial effort and pronouncements in this case have been placed under a microscope. Unfortunately, the peculiar lenses of this instrument have disclosed alleged forensic aberrations which have brought on the heads of the judges the scathing venom of the applicants’ counsel.

Counsel complains that the judges did not have a “full grasp” of decisions and “put into the mouths of others what was never written” or intended to “obfuscate” what was said; that judges “intentionally misappreciated evidence” to derive from them “wrong conclusions”; that the judges meandered and lost sight of


 

 their legal bearings; their judgments were not anchored “on sound legal doctrine, presumptions and principles” but on “bare extra-legal sentiments, non-legal views or beliefs” with an indulgence in outbursts which created an “inconsistency of justice that could but command the confidence of the ordinarily reasonable people on the Chorkor trotro boneshsakers”. The final effusion condemned judges for committing “a grave, if not a disgusting, miscarriage of justice, notwithstanding their double or treble concurrent holdings”.

That counsel is capable of formulating his contentions in far less objectionable language can be seen from his final summation:

“In this case there have been far too many fundamental and basic errors of law and misdirections that a grave miscarriage of justice has been occasioned - which require correction ex debito justitiae.”

However emotionally overheated one may become, members of the legal fraternity have a duty to conform to the time-honoured practice of comporting themselves always with decorum and dignity. This must be reflected in the language they employ which should be of measured elegance and sobriety.

Judges do not claim they make no mistakes; there is no doctrine of judicial infallibility, but our errors must be pointed out with judicial logic and sober argument. In conclusion, I can only say that the applicants have not demonstrated any exceptional circumstances to entitle them to a reversal of the previous decision of this court. I would dismiss the application.

WUAKU JSC. I agree. On 9/3/1987 Ebenezer Tetteh Amartei, Head and lawful representative of Nii Armah Sogblah Family of Osu, brought an action against Nii Ayaa Odonkor and two other defendants claiming five million cedis as general damages severally for trespass committed upon a tract of land with the village Haatso thereon. The disputed land was delineated on a plan attached to the writ of summon. The plaintiff claimed in addition an injunction etc. The writ of summons was accompanied with a four-paragraph statement of claim detailing the acts of the trespass complained of. Before the hearing could be started the plaintiff died and was substituted by Benedict Botchway.

There was the general denial of the plaintiff’s claim by the defendants but I think that the bedrock upon which the defendants based their defence was the allegation that (a) the disputed land was a grant by the defendants’ ancestor to the plaintiff’s ancestor (b) an admission by the plaintiff’s ancestor of the said grant in a suit intituled Kwasi Bosompem v Martey, which came before Sir W Brandford Griffith Kt CJ in 1904.

In the instant case, judgment was given against the defendants in the court of first instance and also on appeal to the Court of Appeal, and the Supreme Court on 26/5/1992. The application before us is for the review of the aforesaid Supreme Court judgment.


 

To begin with, it must be noted that the Court of Appeal and the Supreme Court were unanimous in their judgment. I consider the statement of case filed by the applicants on 8/6/1992 as sufficient for our consideration. Apart from the exhibits attached, I consider the second statement of case filed on 11/1/1992 unnecessarily verbose and as an appeal to our emotions rather than to our reason.

I am of the opinion that all the issues that are being raised in the statement of case were raised and argued at the hearing of the appeal and were all fully considered in the judgment of this court dated 26/5/1992 in which I concurred.

However, I am of the opinion that the proceedings in Bosompem v Martey (1904) are important in the determination of this application and I am prepared to give them a further consideration.

The proceedings were tendered by the defendants through the plaintiff during cross-examination. The plaintiff denied a suggestion that the 1904 proceedings were in respect of Haatso, and said that it was a boundary dispute. The plaintiff denied that Tettey Kwao gave the boundary description of Haatso in that case. He admitted that Tetteh Kwao said they paid tolls in 1904 but said that they had not paid any tolls since 1904.

The second defendant gave evidence for the defendants and called no witnesses. He said in his evidence-in-chief that Ashong Jemawong gave the land to Otuma Kwaku and boundaries were shown to him. He continued:

“My family litigated over the land at Haatso. This was in 1904 and the case was Bosompem v Martey. The judgment in that case is exhibit 1.”

Under cross-examination he stated that all that he knew about Haatso is based largely on the 1904 proceedings. He admitted that that case was a boundary dispute between the people of Blekusu and the people of Accra. He did not know the extent of the land given to Haatso people. He did not know when the last toll was paid and to whom it was paid nor the amount paid or the denomination in which it was paid.

I have dwelt on exhibit 1 at length because the defendants have pleaded it as estoppel by record and raised it as an issue for trial. The exhibit is not the judgment in the matter that went before the court in 1904. The claim is not included in the exhibit. Indeed the exhibit  shows that it is a continuation of proceedings from another record book and that the plaintiff in that case had already given evidence and was being recalled to continue to give evidence. It contains other proceedings.

In my opinion estoppel by record will not apply because it is not the same dispute being litigated twice over by the same parties. Tettey Kwao was a stranger to the 1904 suit. The second defendant had said that Haatso, Agbogba and all the small villages were paying tolls for the use of the land. One Kofi Mensah who gave evidence immediately after Tettey Kwao said that Ashong had a fetish at Onyinasi and that yearly collections were made towards the performance of ceremonies for the fetish. The plaintiff in the present case said that the tolls were paid to the fetish priest one Mensa Apple after the death of Ashong. The fetish was used in olden days to invoke rainfall in the dry season. This was admitted by the second defendant.

What I gather from the applicants’ argument is that there was a tenancy agreement between the parties’ ancestors; that was why the plaintiff’s ancestors paid tolls. Therefore the plaintiff is estopped by that tenancy agreement.

The mere payment of rent or tolls as in this case, though may raise a presumption of tenancy, by itself does not operate as estoppel, but only as an admission which may be explained. Kofi Mensah’s evidence in 1904 had explained why tolls were collected from all the villages around Haatso.

The instant application was brought pursuant to Practice Direction [1987-88] 2 GLR 244 following the decision in Kumnipah II v Ayirebi [1987-88] 1 GLR 265 which provided that the only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review. Following that decision many applications have been brought on this sole ground and various opinions have been expressed as to what constitutes circumstances that are exceptional and that in the interest of justice there should be a review.

One has to read Mr S Y Bimpong-Buta’s article: “The Supreme Court and the Power of Review” in the (1989-90) 17 RGL 192 to appreciate the dilemma which litigants are bound to face in bringing applications for review.

Litigants under article 133 of the 1992 Constitution now have the right to bring applications for a review of any decision made or given by the Supreme Court. In my opinion the grounds for applying for a review under the constitution are wider in scope than under the Practice Direction. I would respectfully suggest that the Rules Committee set up under article 157 prescribes, as required under article 133(1), rules of court that may be less stringent than the Practice Direction for applications for review.

By article 138(2) the Supreme Court shall be duly constituted for its work by not less than five Supreme Court justices and by article 133(2) the review justices shall not be less that seven. I would again, in all humility, suggest that as far as possible all the Supreme Court justices sit on all matters coming before the court at all times, and where an even number of justices sit and there is an equal division of opinion, then the matter before it must be deemed to be lost or dismissed.

Now to come back to the application before us, in my opinion no special circumstances have been shown except criticisms of the Supreme Court judgment with a strong emotional plea that the court reverses its judgment and that judgment be entered for the applicants.

I think this is a proper case where the maxim: interest rei publicae ut sit finis litium (it concerns the state that law-suits be not protracted) and the rule nemo debet bis vexari pro eadem causa (that the individual should not be troubled twice with the same case) should apply. I would dismiss the application with costs.

AMUA-SEKYI JSC. Inspite of the prolixity of the written submission filed on behalf of the applicants, I do not think that they have succeeded in making out a case for a review. Such cases as Swaniker v Adotei Twi II [1966] GLR 151, Aschkar v Karam [1972] 1 GLR 1 and A/S Norway  Cement Export Ltd v Addison [1974] 2 GLR 177,  show that the power to review is a very limited one and that it is not enough to say that in counsel’s opinion the judgment was wrong. I agree that the application be dismissed.

AIKINS JSC. I agree that the application should be dismissed. The 66 page statement of case filed by Messrs E D Kom and D A Nii Aponsah, both counsel for the defendants-applicants, contains arguments which may aptly be described as an attempt to reargue their case. Counsel are complaining of fundamental and basic errors which, according to them, have occasioned grave miscarriage of justice, but which, in my view, are not different in content from the arguments urged on behalf of the defendants-appellants in their original appeal before this court.

In my judgment the applicants have not adverted to any significant, special or exceptional circumstances that can move this court to exercise its review jurisdiction in their favour. It must be emphasised that the circumstances should be shown to have occasioned or resulted in grave miscarriage of justice.

Counsel are just seeking another opportunity to reopen the same grounds they urged before this court, and this should not be countenanced. The application is therefore incompetent, and must be dismissed.

I think it would not be out of the way if I gave expression to my view of an unfortunate situation that is currently rearing itself up in the courts of this country, especially in the Superior Courts, and which must not be allowed to hold sway. Counsel for the respondent, Mr James Ahenkorah, in his “Answer to Applicants’ Fuller Statement of Case” has drawn this court’s attention to an attitude portrayed by the content of the 66-page “Fuller Statement of Case” filed by counsel for the defendants, Messrs E D Kom and D A Nii Aponsah, and which must be condemned because of the most uncomplimentary language in which the statement is couched.

Having failed in the appeal itself there is no need for counsel to use the review procedure to vent their feelings in an inordinate and impassioned anger upon the learned justices of this court and counsel on the opposite side. This practice of some counsel, in cases before the courts, allowing themselves to fly into unbridled passion and tantrum at the least provocation must, in my humble view, be strongly deprecated.

What really surprises me is the fact that the co-author of this particular document is Mr E D Kom, whom I have known to be of sober reflection, a lawyer of fecund imagination and brilliant personality and one who, to my knowledge, is rarely tempted to fly into unnecessary rage. Perhaps he may wish to advise himself. Counsel in review applications are advised to concentrate upon scooping out exceptional circumstances which should convince this court that the judgment of the court should be reversed in the interest of justice, and should not energise themselves in a merciless and unwarranted attack on the justices who formed the panel of the appellate court and counsel on the other side.

As I have already pointed out there is no substance in the application; it deserves to be dismissed and is hereby dismissed.

WIREDU JSC. This is an application inviting us to review our decision given on 12 January 1992.

By that decision this court affirmed a unanimous decision of the Court of Appeal dated 25/5/91 in favour of the plaintiff-respondent to this application (who shall hereafter be referred to simply as “the plaintiff”) which latter court had also affirmed a decision of an Accra High Court dated 11/10/90 in favour of the plaintiff for title to a piece of land commonly known and described as Haatso near Accra.

The facts of the case show that the plaintiff’s family members, who are subjects of Osu, have for over a period of 200 years been in exclusive occupation of Haatso in their own right as Osu subjects and exercised rights and acts of ownership on the land without reference to the defendants-applicants (who will also hereafter be referred to simply as ‘the defendants’) or any other person or authority. The evidence shows that the plaintiff’s family in fact founded the Haatso village as the original settler.

The plaintiff’s complaint is that recently the defendants have been interfering with the Haatso land by asserting an adverse claim to same and authorising and granting lands to strangers thus disturbing the quiet and peaceful possession and enjoyment of the land by the family. The defendants claim that the plaintiff’s family is their licensee. They base their claim on a so-called admission of their title by an ancestor of the plaintiff, one Tetteh Kwao, in a suit described in the proceedings as the Bosompem case.

The defendants are Gas who belong to the Gbese quarter or community. No evidence was provided by the defendants to show that any of their ancestors ever settled on any part of the land known as Haatso. On the contrary the overwhelming evidence produced and accepted at the trial, both documentary and oral, establish title to the Haatso land as belonging to Osu through the original occupation of the disputed land by the plaintiff’s family who are Osu people.

 The defendants, on the evidence, were not shown to know anything about the disputed land. On their own showing they have no knowledge and were shown not to have had any dealing with it


 

 until the trespass that provoked the instant litigation. They have no knowledge and have had nothing to do with it ever since the plaintiff’s family occupied same.

After hearing evidence from the parties and their witnesses and considering also the documents including judgments and proceedings tendered in evidence, the trial judge, in what strikes me as a well-considered judgment found for the plaintiff. An appeal from that judgment by the defendants failed.

A further appeal to this court also failed and it is the decision of this court dismissing their appeal which has provoked the present application for review.

Such is the history of this case which has gone through all the tiers of the court of this country with the defendants losing in all the courts presided over by nine superior court judges. This very fact ought to have given a clear warning to learned counsel for the applicants of the uphill task ahead of him, for him to hesitate awhile to examine the case exhaustively before embarking upon such an exercise that not only demands serious research but also calls for a real appreciation and understanding of the review he was seeking. Such self-examination would thus have avoided the use of any language which appeared to be making a mockery of the decision of the highest court of the land. It would also have avoided the danger of pouring unjustified scorn and ridicule on the solemn pronouncements of this court.

With the above as an introduction, I shall now attempt a review of the case law on the jurisdictional powers of review of the court and examine the facts of the present case to see how far the defendants’ case is made out.

This court has on a number of occasions stressed that the power of review is exercisable only under two conditions.

In Fosuhene v Pomaa [1987-88] 2 GLR 105 Sowah CJ stated the grounds for a review as follows: (a) exceptional circumstances and (b) the interest of justice. Continuing, His Lordship commented at p 111:

 “The supporting affidavit never specified the exceptional circumstances nor even what the interest of justice required. The affidavit which should have contained facts was mainly employed for legal argument, the effect of which is to demonstrate the erroneous view which had been taken by the court. The argument did not indicate the circumstances in which the interest of justice was misapplied; it merely went on to show that the applicant had lost…”

In the case of A/S Norway Cement Export Limited v Addison [1974] 2 GLR 177, the first holding in the headnote states:

“There was a clear distinction between a review and an appeal. In the case of a review the same court would be asked to have a second look at its own judgment and correct, if need be, its own record, but in an appeal a higher court was often asked to correct


 

 the error, real or imagined of a lower court. Although both could achieve the same result they were conceptually different.”

See also Swaniker v Adotei Twi II [1966] GLR 151. In Nasali v Addy [1987-88] 2 GLR 286 the Supreme Court, in dismissing an application for a review of an earlier split decision of the court, held that an applicant who sought, under the guise of a review, to reopen an appeal which had been dismissed would not be encouraged and that the review jurisdiction was exercisable in exceptional circumstances where the demands of justice made the exercise extremely necessary to avoid irreparable damage to the applicant.

In Nartey-Tokoli v Volta Aluninium Co Limited [1989-90] 2 GLR 513 this court, by a unanimous decision dismissed an application for review of its earlier decision reported in [1989-90] 2 GLR 341. Francois JSC held at page 516 that:

“Exceptional circumstances have not been defined and although the parameters are loosely indicated, and the categories have neither been listed nor closed, they are not wide enough to admit inappropriate and undeserving cases.”

Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2 GLR 598 is authority for the proposition that submissions in support of an application for review based substantially on the same grounds as those advanced during the appeal in the case resulting in the decision from which the review was sought ought not be entertained and that the review jurisdiction was to be exercised at the discretion of the court.

In the Mechanical LloydsAssembly Plant case supra Taylor JSC set down the following as instances which, in his view, may justify a claim to exceptional circumstance: (1) Matters discovered after judgment. According to His Lordship these must be relevant, exceptional and capable of tending to show that if they had been discovered earlier, they would have influenced the decision; (2) Cases falling within the principle enunciated in Mosi v Bagyina [1963] 1 GLR 337, SC; (3) Judgments which can legitimately be said to have been given per incuriam.

On this latter proposition by Taylor JSC, I am doubtful whether the second leg is a legitimate extension of the law with regard to the parties’ right to review.

A careful examination of the law, as analysed above, on the subject reveals a cardinal principle of preserving the effect of the solemn judgment thus pronounced save in exceptional circumstances resulting in grave injustice. This principle recognises the finality of the judgment thus declared.

With the above exercise as guiding principles I shall now proceed to examine how far the present application succeeds on the facts of this case.

First the present application is not an easy one. The applicant has lost in all the three courts including the highest court of the land. It is this latter court which is now reconstituted to have a second look at the present application. It cannot sit on appeal to rehear the case afresh in order to correct errors of law, real or imaginary. It is disabled to allow the applicant to repeat arguments already submitted and fully dealt with.

The question to answer is: what are the exceptional circumstances revealed or disclosed by the defendants’ complaint to justify a second look at the decision of this court from which the present application has been brought? The affidavit in support of the application filed on 8/6/92 does not depose to facts which show any exceptional circumstance. The statement of case has also failed to show that the decision of this court has led to a miscarriage of justice.

Surely, a number of points of law have been raised in the statement of case. First, about the customary law and the common law relationship between tenant and landlord and the provisions of the Evidence Decree 1975 (NRCD 323). The latter was raised in the appeal and all the other grounds were argued, considered and fully dealt with in the decision from which the present application has emanated. These points of law which have been raised seem to reopen the case afresh with serious arguments as if this court is sitting on appeal. They are not based on any new facts discovered.  They are also based on the assumption that the plaintiff’s family were found on the evidence to be the defendants’ tenants.

Every act of the plaintiff’s family, as established on the evidence, shows exclusive right to occupation and possession in their own rights as subjects of the Osu in whom title was found to vest. The dealings of the plaintiff’s family with the disputed land, on the established facts are inconsistent with the terms under which the defendants’ claim to have admitted them on to the disputed land as their licensees. The defendants were unable to show that any of their ancestors ever settled on Haatso lands. Events and facts within living memory justified the plaintiff’s claim.

It is my considered view that the  applicants have not been able to establish that there exists any exceptional circumstance which has resulted in a miscarriage of justice to justify my interfering with the decision of this court by way of review. The application therefore fails.

BAMFORD-ADDO JSC. This is an application by the defendants-appellants-applicants asking for a review of the judgment of this court delivered on 26 May 1992. The application was accompanied by no less than 19 grounds and a statement of case complaining about errors of law claimed to amount to exceptional circumstances. The plaintiff-respondent opposes this application on the ground that there are no exceptional circumstances calling for a review and that the application is a naked appeal against this court’s said judgment.


 

An application for review will only succeed where, as held in a number of cases, it can be shown that there are “exceptional circumstances” resulting in a grave miscarriage of justice and requiring a review in the interest of justice. The review power of the Supreme Court was given in article 116(3) of the 1979 Constitution and re-echoed in article 133 of the 1992 Constitution thus:

“The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by the rules of court.”

This court has provided the guide for the exercise of the review power in the Practice Direction [1987-88] GLR 274 as follows:

“In order to clear any misunderstanding and prevent the process of review being abused and turned into another form of appeal, the judges decided at a meeting with the Chief Justice that the following directions should be given....

(d) The only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review...”

A number of decided cases have specified possible grounds for review, what are or are not exceptional circumstances, and held that the review jurisdiction would be exercised at the discretion of this court, in special cases upon proof of the existence of “exceptional circumstances” resulting in a grave miscarriage of justice.

The court would not review its decision where the review is sought: (a) to reopen an appeal under the guise of a review, (b) to repeat arguments already offered at the earlier hearing of the appeal, (c) to raise matters which could have been raised earlier in the appeal due to inadvertence, (d) nor for the purpose of interpreting the courts previous decision with a view to breaking new grounds in the law. These circumstances which are not exhaustive, have been held not to be “exceptional circumstances” calling for a review.

The Supreme Court in Fosuhene v Pomaa [1987-88] 2 GLR 105 held that it had jurisdiction to correct its own errors by way of review but that “there must be compelling reasons, and exceptional circumstances dictated by the interests of justice”.

In Nasali v Addy [1987-88] 2 GLR 286 the applicant contended that the majority ignored relevant authorities and thus occasioned a gross miscarriage of justice. It was held in the head note, dismissing the application that:

“the Supreme Court had power to correct its own errors by way of review. However an application merely seeking to reopen the appeal under the guise of a review could not be encouraged. The jurisdiction was exercisable in exceptional circumstances where the demands of justice made the exercise extremely necessary to avoid irremediable harm to an applicant. All persons who had lost a case were likely to complain of miscarriage of justice but, in the absence of exceptional circumstances, such complaints were a poor foundation for the exercise of the review power for it was only in exceptional circumstances that the interest rei publicae  ut sit finis litem principle yielded to the greater interest of justice.”

Also in Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2 GLR 598, the Supreme Court, in a majority decision dismissing the application for a review held that the applicants’ grounds and arguments were the same as those advanced in the appeal and that it did not amount to exceptional circumstances resulting in grave miscarriage of justice. According to Adade JSC in that case at page 603:

“But the mere fact that the judgment can be criticised is no ground for asking that it should be reviewed. The review jurisdiction is a special jurisdiction, to be exercised in exceptional circumstances. It is not an appellate jurisdiction. It is a kind of jurisdiction held in reserve, to be prayed in aid in the exceptional situation where a fundamental and basic error may have been inadvertently committed by the court, which error must have occasioned a gross miscarriage of justice. The review jurisdiction is not intended as a try-on by a party after losing an appeal; nor is it an automatic next step from an appeal; neither is it meant to be resorted to as an emotional reaction to an unfavourable judgment.”

This passage seems to me to have particular relevance to the present case. I have carefully examined the grounds and arguments in support of the application for a review and in my opinion they are only further arguments in support of grounds already canvassed and lost in this court on appeal. The applicants are  not entitled to a further appeal. A review is different from an appeal and an allegation of error of law in the judgment cannot amount to “exceptional circumstance”.

As Taylor JSC said in Mechanical Lloyd Assembly Plant Ltd v Nartey, cited supra:

“Any error of law which is not of exceptional character and which does not result in a miscarriage of justice would not operate to vacate a judgment of this Supreme Court.”

I said in the case of Khoury v Lawson  23 June 1992, SC that proof of existence of exceptional circumstance is a precondition to the assumption of the review jurisdiction.

I am already of the view that the applicants have failed to establish this precondition. The arguments proffered are only a repetition and elaboration of former arguments and criticisms of the judgment on appeal in an attempt to get it reversed by all means.

Applicants challenge almost all the concurrent findings of three Superior Courts that dealt with this case. Counsel has described them as “fundamental and basic errors” and “that such grave if not


 

 disgusting miscarriage of justice has been occasioned by previous courts notwithstanding their double or treble concurrent findings”.

Concurrent findings of three Superior Courts, though not sacrosanct, are entitled to be viewed with great respect until a court of review finds them erroneous. This, the applicants have, in my view, failed to establish, since unfortunately no sufficient grounds exist for such a review.

There being no “exceptional circumstances” which have occasioned any grave miscarriage of justice, the application is unmeritorious and is consequently dismissed.

HAYFRON-BENJAMIN JSC. I also agree that the application for review fails. The applicants are seeking to reagitate all the grounds upon which they rested their main appeal. They have sought by vitriolic and in some places patently offensive language to demonstrate that there are “fundamental and basic errors resulting in a grave miscarriage of justice”.

The applicants contend that their arguments advanced in support of their application reveal an exceptional circumstance which “justifies the exercise of [our] discretion in [their] favour as the applicants herein”.

The applicants finally contend that as they:

“… in good faith, believe that a fundamental and basic error of law still persists, what else are we to do or should we do as humble servants of the law, except we have recourse to the last remedy available to us under the rules of the court.”

It is therefore clear from the preamble to the statement of case that on the pretext that “fundamental and basic errors of law still persist” they are exercising their undoubted constitutional right to approach this court for a review of its judgment.

The grounds upon which this court will entertain such applications have been spelt out in many decisions, some of which have been discussed in the opinions of my learned and respected colleagues.

I have said in Rep v High Court; Ex parte Togbe Gobo Darke 17 November 1992, Supreme Court, that when this court is approached in the exercise of its jurisdiction to review, the applicant must show that there has been inadvertent misapplication or misstatement of the law or omission to apply the law. In the present application no such ground has been demonstrated. They have only sought to furnish this court with more references to legal authorities and assume that the sheer weight of authorities is sufficient to induce this court to review its previous decision.

In their concluding statement they refer to a woolly mathematical riddle and say:

“The illustration (the woolly mathematical riddle) dutifully argues, with respect, that the mere multiplication of a manifest slip does not make it right, just as ordinary commonsense warns us daily that 2 or 3 wrongs don’t make one right. It would be rash,


 

 therefore, Sirs to make a capital or with great respect, a fetish of the practice that requires to be closely watched that concurrent findings could not be lightly disturbed. It is respectfully urged that before such a cliché or strait-jacket (sic) could be enforced, the learning brought to X-ray the previous decisions must be wholly putrid, superficial, naive or otherwise legally and factually unsupportable in all its facets.”

I have referred to this concluding passage from their statement of case to illustrate first the baseness of the language employed in their submissions and to demonstrate that the applicants have misconceived the true legal requirements for an application for review. Suffice to say that by this statement the applicants have condemned themselves.

A review is not concerned with concurrent findings made in the hierarchy of our courts. It is clear therefore that they have presented their application as if on a further appeal. Such a course is not warranted by the process of review in this court. They have in their own words presented “wholly putrid, superficial, naive or otherwise legally and factually unsupportable [arguments].”

I would have been content to rest my opinion on the foregoing. But there are certain important matters on which I feel the record must be set straight.

Applicants contend that for the first time this court has imported into our jurisprudence the doctrine of prescriptive title. Their contention is that the case of Mieh v Asubonteng [1963] 2 GLR 37 is authority for the proposition that “there is of course no such title known to the law of Ghana”.

In my respectful opinion they have quoted the passage out of context. Holding (3) in Mieh v Asubonteng  supra, is the proper state of the law. It reads:

“The principle of acquiring title to land by prescription, or usucapio as it is termed in Roman law, is not known to customary law; though a claimant to title to land may rely on his long undisturbed possession to the land in question as further evidence of proof of his title.”  (Emphasis mine.)

The emphasised part of that holding is self-explanatory. But even if the first part of that holding is the correct proposition of the law of Ghana, the historical origins of this principle based, as they are, on the works of Sarbah, Casely-Hayford and Danquah incline me to the view that it is too sweeping a legal proposition. The applicants ask:

“Do not the courts always apply even Akan norms to Ga Mashie and other Gas without such discrimination?”

This may well be so. But it will be wrong for a court to apply Akan norms to a case involving non-Akans merely for the sake of uniformity in the development of the law. In a multi-ethnic nation such as ours, it is the duty of a court when presented with evidence


 

 or other relevant material which proves or demonstrates beyond any doubt that a particular ethnic group has any customary law or practice which differs from known Akan laws or norms to articulate such custom and give effect to it.

The Mieh case was decided in 1963 and Ollenu JSC presided over the court. The applicants contend that the learned President of that court, himself of Ga extraction, had negatived the concept of prescription in his learned treatise of land law.

I find that Ollenu’s learned treatise ignored the equally erudite report of R H J Pogucki on Land Tenure in Customary Law of Non-Akan Areas. This report was in existence in 1954 - well before the commencement of Ollenu’s lectures, which were compiled into his learned treatise on land law in Ghana. Pogucki’s report, coming from a person who had no ethnic bias but was minded to produce a professional report must be given due weight. In my respectful opinion, in Ga customary law a person may acquire title to land by prescription.

The principle enunciated in the Mieh case must of necessity apply only to the Akan ethnic groups; not to so hold would stultify the development of the law with respect to other emerging ethnic groups.

Next, the applicants inferentially urge upon this court, as it were, to review Jackson J’s judgment in the Legon Acquisition case. They contend that Jackson J’s findings were in contradiction of his judgment in the Kokomlemle Consolidated Cases. Of course it will be most improper to review such a long-standing decision.

The complaint of the applicant is:

“Surely Jackson J couldn’t have made the above findings and then forgot himself only five months later in another Enquiry involving the northerly part of the selfsame Ga land to give the impression attributed to him that “the Osu people came to settle at Haatso and Papao.”

The applicants are wrong. Exhibit D is the judgment of Jackson J in the Legon Acquisition case. There were two claims in both of which the Gbese stool,  to which the applicants  belong, featured prominently. If the applicants had cared to examine exhibit D, they would have discovered that Jackson J was very much aware of his decision in the Kokomlemle Consolidated Cases.

The notable references from the judgment of Jackson J which demonstrate that the learned judge had the Kokomlemle Consolidated Cases at the back of his mind may be cited in this opinion. In the first instance Jackson J wrote as follows:

“Thus whilst that letter dated the 30th November 1901, by its admissions, does afford some evidence of the eastern limits of the land up to which the Osus were permitted to occupy, it affords no evidence as to what was recognised then as being the boundary between the Akans and the Labadis and that same lack of such evidence was apparent to me in the Kokomlemle cases, in respect of which I gave judgment on the 31st May last. In that judgment I said as follows:

‘Quite clearly the needs of that family on its first arrival would be very small and the direction in which they would be permitted to farm would be indicated in a very rough and ready manner for them. From the seashore a general direction to the north would be indicated and quite possibly towards Legon was the direction then indicated. Legon is situate to the north of this land between Achimota and Dodowa.

As the families grew, and families instead of a family became the order of the day, the needs of the community increased, so would unappropriated land further inland and going towards Legon be gradually occupied by the increasing members… So much unappropriated land as the Osus occupied by the tacit permission of the Gas - so that land tended to be regarded as the property of the Osu Stool. Quite clearly at any time, had they so desired the Gas could have said to the Osus ‘You can farm no further than this’ and that in effect, is what has happened in recent years’…” (Emphasis mine.)

Then again Jackson J wrote in the same judgment as follows:

“I again refer to my judgment in the Kokomlemle cases and where I analysed the customary law at length. I have found no occasion to modify in anyway the findings at which I then arrived. There I held that “sustained occupation coupled with the erection of buildings in furtherance of such occupation of farming creates a hereditable interest in land or even continuous farming alone provided it be sufficiently localised”. That land not built upon but farmed by the successor in title of the founder of such farm also in similar circumstances became clothed with the character of ‘family lands’ whilst so farmed. And that ‘land unoccupied by buildings or farms may be allotted by the Head or Caretaker of the Stool to other members of the Stool either by way of gift or licence.” (Emphasis mine.)

Thus the charge that Jackson J “forgot himself only five months later” is unfounded. In my respectful opinion nothing that Jackson J said in the Legon Acquisition case was either inconsistent with or contradictory of his decision in the Kokomlemle Consolidated Cases.

The  applicants admit that they are Gbese people and also Korle Webii or Onamroko people. In their statement of case they state as follows:

“Since by convention it was the Korle Webii or Onamrokor people, of whom Ashong Jemawong the leader was head, who were accustomed to look after Ga lands as Caretakers on behalf of themselves and the Gbese and Ga Stools, the Tettey Kwao family from Osu had the need to seek Ashong Jemawong’s permission both in his capacity as Korle Priest and as one whose family operated as hunters and scouts on those lands on behalf of the vigilant Ga Paramount and Gbese Divisional Stools.

In the light of the foregoing lucid findings that the land was shared between Gas and Las before the Osus’ arrival, and that Osu occupied already-owned Ga land, to hold that Jackson J held that the Osus arrived and as of right planted themselves at Papao and Haatso lands already owned by the Gas, would be, to put into the mouth of Jackson J with respect, words that he never wrote down nor intended Sirs, having due regard to the above productions of relevant parts of his Kokomlemle judgment.”

Jackson J, in the Legon Acquisition had no difficulty resolving this claim when he wrote:

“I cannot find any evidence which I can accept of any act of any members of the Onamroko family which could be described unequivocally as being the exercise of a right as owners of the land, and certainly there is no evidence that at the taking of the lands in December 1947 they were in possession of such lands as being the owners and it is clear that whatever rights or interests in land which they may have possessed in the past and which were right as the first settlers in waste and unoccupied land, have been lost to other parties either by express grant or long acquiescence in the use and occupation of the land; and I do dismiss the claims made by the Gbese Stool and the Onamroko family.”

The correctness of Jackson J’s assessment of the evidence before him is confirmed in the cross-examination of Evans Okai Anteh, the 2nd applicant herein when he stated as follows:-

“Q. Have you heard that the Ga and Labadi people settled the Osu people between them from the coast upwards the Akwapem Hills?

 A.   Yes.

In my respectful view there is no merit in this application. I will therefore dismiss it and confirm my original opinion.

Application dismissed.

S Kwami Tetteh, Legal Practitoner.

 
 

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