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Review -
Jurisdiction - 1992
Constitution - Article 296 (a)
- Rule 54 (a) of C. I. 16
Matrimonial causes -
Dissolution of Marriage - Grant
of custody - Access to the
children - maintenance of
children - Acquisition of that
property - Ownership of the
matrimonial home - Granted
ownership of all the equipment
- Whether or not Respondent did
not make any contribution to the
acquisition of that property -
whether there was any evidence
before it to the effect that the
storey building at Weija was
jointly acquired -
HEADNOTES
The High
Court Accra on the 10th
day of May 2010 entered judgment
in favour of the
Petitioner/Respondent/Appellant/Respondent,
hereafter referred to as the
Respondent to the following
effect: Dissolution of the
marriage entered into by the
parties Grant of custody of the
children to the Respondent,
Grant of access to the children
by the Applicant herein anytime
he visits Britain where the
children were at all material
times or anytime the children
visit Ghana. The Applicant to
maintain the children at GH¢100.00
per child per month with effect
from February 2008 and is to be
responsible for half of their
school fees and medical
bills.The respondent was granted
ownership of the house purchased
for her at Kasoa old Barrier.The
Applicant was granted ownership
of the matrimonial home. The
Respondent to give up possession
and deliver up to the Applicant
the 2 rooms in the said
house.The respondent herein is
to have half share of the storey
building, and half share of the
shops at Weija, Accra. The
Respondent is granted ownership
of all the equipment used to
operate the salon at Weija. The
Applicant who was dissatisfied
and aggrieved with the decision
of the High Court as summarized
above appealed against same to
the Court of Appeal. The Court
of Appeal set aside the High
Court decisions and instead made
the following
orders:-Confirmation of the
dissolution of the marriage.
Confirmation of the reasonable
access to the children granted
the Applicant both in the United
Kingdom and in Ghana. The
Respondent was ordered to render
accounts of the GH¢30,000.00
given to her to buy treasury
bills within 30 days hereof
failing which she shall refund
the amount to the Applicant.
Following an appeal to the
Supreme Court by the Respondent
herein, the court on the allowed
the said appeal in the following
terms:-The appeal is accordingly
unanimously allowed and the
judgment of the learned trial
Judge restored in its entirety.
This judgment has endeavoured to
maintain the gains made by
Ghanaian law in the direction of
the realization of the vision
contained in article 16 (1) of
the Universal Declaration of
Human Rights
HELD
In the
instant case, having considered
the review application in the
light of the above criteria and
or road map and also in line
with the phletora of cases that
have been cited by both Counsel
and also referred to in this
judgment, we are of the
considered and firm view that
this application for review
fails in its entirety and is
dismissed. Under the
circumstances, we affirm the
decision of this court,
delivered by the ordinary Bench
on July 26th 2013.
The review application therefore
stands dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules, 1996 (C.I.16)
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
Mechanical
Lloyd Assembly Plant Ltd. v
Nartey [1987-88] 2 GLR 598
Quartey v
Central Services Co. Ltd.
[1996-97] SCGLR 398
Bisi v Kwayie
[1987-88] 2 GLR 295, S.C
Nasali v Addy
[1987-88] 2 GLR 286 S.C
Ababio v
Mensah (No.2) [1989-90] 1 GLR
573 S.C
Pianim (No.
3) v Ekwan [1996-97] SCGLR 431
Koglex (GH)
Ltd. v Attieh [2001-2002] SCGLR
947
Attorney-General v Tsatsu
Tsikata (No. 2) [2001-2002]
SCGLR 620
Afranie v
Qarcoo [1992] 2 GLR 561 at
591-592
Tamakloe v
Republic [2011] 1 SCGLR 29
Internal
Revenue Service v Chapel Hill
Ltd [2010] SCGLR 827
Clerk v Clerk
[1981] GLR 583,
Boafo v Boafo
[2005-2006] SCLGR 705
Mensah v
Mensah [2012] 1 SCGLR 391
Buabeng v
Fokuo 1970 CC. 59
Traboulsi v
Patterson Zochonis [1973] 1 GLR
133 at 138
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE JSC;
COUNSEL
EGBERT
FAIBILLE JNR. WITH HIM STEPHEN
OWUSU AND SABAH BONNIE FOR THE
RESPONDENT/APPELLANT/
RESPONDENT/APPLICANT.
MRS. M. Y.
N. ACHIAMPONG FOR THE
PETITIONER/RESPONDENT/ APPELLANT
/RESPONDENT.
----------------------------------------------------------------------------------------------------------------
RULING
----------------------------------------------------------------------------------------------------------------
DOTSE JSC;
It is
provided by rule 54 of the
Supreme Court Rules, 1996
(C.I.16) that:
54. Grounds
for review
“The Court may review a decision
made or given by it on the
ground of …
(a)
exceptional circumstances which
have resulted in a miscarriage
of justice, or
(b)
the
discovery of new and important
matter or evidence which, after
the exercise of due diligence,
was not within the applicant’s
knowledge or could not be
produced by the applicant at the
time when the decision was
given” emphasis supplied.
In the
instant application, the
Respondent/Appellant/Respondent/Applicant,
hereafter referred to as
Applicant has anchored his
review application of the
judgment of the ordinary bench
of this court rendered on the 26th
day of July 2013 on the
following grounds stated in his
statement of case.
“The instant application is
brought pursuant to the first
ground upon which this
Honourable Court would usually
review its jurisdiction. It is
Applicant’s respectful
submission that there is are
(sic) exceptional circumstances
warranting the
favourable exercise of this
court’s review jurisdiction in
favour of the present applicant
and such exceptional
circumstances have
resulted in a miscarriage of
justice.” Emphasis supplied.
WHAT THEN ARE
THE FACTS OF THIS APPLICATION?
The High
Court Accra on the 10th
day of May 2010 entered judgment
in favour of the
Petitioner/Respondent/Appellant/Respondent,
hereafter referred to as the
Respondent to the following
effect:
1.
Dissolution of the marriage
entered into by the parties on
the 24th day of
December 1998 at the Emmanuel
Presbyterian Church, Dansoman,
Accra.
2.
Grant
of custody of the children to
the Respondent, namely Freda
Arthur, now aged about 16 years,
Stephen Arthur aged 14 years and
Priscilla Arthur aged 11 years
or thereabout.
3.
Grant
of access to the children by the
Applicant herein anytime he
visits Britain where the
children were at all material
times or anytime the children
visit Ghana.
4.
The
Applicant to maintain the
children at GH¢100.00 per child
per month with effect from
February 2008 and is to be
responsible for half of their
school fees and medical bills.
5.
The
respondent was granted ownership
of the house purchased for her
at Kasoa old Barrier.
6.
The
Applicant was granted ownership
of the matrimonial home. The
Respondent to give up possession
and deliver up to the Applicant
the 2 rooms in the said house.
7.
The
respondent herein is to have
half share of the storey
building, and half share of the
shops at Weija, Accra.
8.
The
Respondent is granted ownership
of all the equipment used to
operate the salon at Weija.
The Applicant
who was dissatisfied and
aggrieved with the decision of
the High Court as summarized
above appealed against same to
the Court of Appeal.
COURT OF
APPEAL DECISION
The Court of
Appeal set aside the High Court
decisions and instead made the
following orders:-
1.
Confirmation of the dissolution
of the marriage.
2.
Confirmation of the reasonable
access to the children granted
the Applicant both in the United
Kingdom and in Ghana.
3.
The
Respondent was ordered to render
accounts of the GH¢30,000.00
given to her to buy treasury
bills within 30 days hereof
failing which she shall refund
the amount to the Applicant.
APPEAL TO THE
SUPREME COURT
Following an
appeal to the Supreme Court by
the Respondent herein, the court
on the 26th day of
July 2013 allowed the said
appeal in the following terms:-
“The appeal
is accordingly unanimously
allowed and the judgment of the
learned trial Judge restored in
its entirety. This judgment has
endeavoured to maintain the
gains made by Ghanaian law in
the direction of the realization
of the vision contained in
article 16 (1) of the Universal
Declaration of Human Rights 1948
to the effect that”
Article 16
(1)
“Men and
women of full age, without any
limitation due to race,
nationality or religion, have
the rights to marry and to found
a family. They are entitled
to equal rights as to marriage,
during marriage and at its
dissolution.”Emphasis
supplied.
The court,
per Date-Bah JSC, one of our
most respected brothers who
delivered this opinion of the
court as his valedictory
judgment, then concluded thus:-
“We are convinced that this
principle of universal human
rights deserves
implementation in Ghanaian law.”
This is the
judgment that the Applicant
wants this court to review.
We have
perused the judgment of the
ordinary bench as well as the
motion paper for review and all
its accompanying processes, to
wit, affidavits and statement of
case filed by the Applicant.
We have also
considered in great detail the
affidavit in opposition to the
review application filed by the
Respondent as well as the
statement of case filed in
support of her response to the
review application.
We have also
given very anxious
considerations and reflections
to the viva voce submissions of
learned counsel for the
Applicant, Egbert Faibille Jnr,
and that of the Respondent, Mrs.
Achiampong, when they appeared
before the review panel.
SCOPE OF
REVIEW APPLICATIONS
The scope of
review applications has been set
by this court in a long line of
respectable authorities which
have aptly, elegantly and
eloquently settled the remit of
review jurisdiction of this
court.
In
Mechanical Lloyd Assembly Plant
Ltd. v Nartey [1987-88] 2 GLR
598 the Supreme Court made
it clear on review applications
as follows:-
“The review
jurisdiction is not intended as
a try on by a party losing an
appeal, neither is it meant to
be resorted to as anemotional
re-action to an unfavourable
Judgment.” Emphasis supplied.
Again in
Quartey v Central Services Co.
Ltd. [1996-97] SCGLR 398,
the Court re-stated the legal
position of review applications
as follows:
“A review
jurisdiction is a special
jurisdiction and not an
Appellate jurisdiction,
conferred on the court, and the
court would exercise that
special jurisdiction in favour
of an Applicant only in
exceptional circumstances. This
implies that such an application
should satisfy the court
that there has been some
fundamental or basic
error which the court
inadvertently
committed in the course of
considering it’s judgment and
which fundamental
error has resulted in gross
miscarriage of justice.
These
principles have been stated over
and over again by this court.
Consequently, a losing party is
not entitled to use the review
process to re-argue his appeal
which has been dismissed or use
the process to prevail upon the
court to have another or second
look at his case.” Emphasis
supplied.
See also
cases such as the following:
1.
Bisi v
Kwayie [1987-88] 2 GLR 295, S.C
2.
Nasali
v Addy [1987-88] 2 GLR 286 S.C
3.
Ababio
v Mensah (No.2) [1989-90] 1 GLR
573 S.C
4.
Pianim
(No. 3) v Ekwan [1996-97] SCGLR
431
5.
Koglex
(GH) Ltd. v Attieh [2001-2002]
SCGLR 947
6.
Attorney-General v Tsatsu
Tsikata (No. 2) [2001-2002]
SCGLR 620
The
principles deducible from all
the above cases is that, the
review jurisdiction of this
court is a special jurisdiction
and is not intended to provide
an opportunity for further
appeal.
Wuaku JSC was
therefore very apt when he
delivered himself in the case of
Afranie v Qarcoo [1992] 2 GLR
561 at 591-592 thus:
“There is
only one Supreme Court. A review
Court is not an appellate court
to sit in judgment over the
Supreme Court.”
This latter
point was reiterated by the
Supreme Court in the recent case
of Tamakloe v Republic [2011]
1 SCGLR 29, holden 1, where
the court by a majority decision
of 6-1, held as follows:-
“The
review jurisdiction of the
Supreme Court was not an
appellate jurisdiction, but a
special one. Accordingly, an
issue of law that had been
argued before the ordinary bench
of the Supreme Court and
determined by that court, could
not be revisited in a review
application, such as in the
instant case, simply because the
losing party had not agreed with
the determination. Even if the
decision of the ordinary bench
on appeal from the judgment of
the Court of Appeal, were wrong,
it would not necessarily mean
that the Supreme Court would be
entitled to correct that error.
That was an inherent incident of
the finality of the judgment of
the Supreme Court as the final
appellate court.”
See also the
Supreme Court case of
Internal Revenue Service v
Chapel Hill Ltd [2010] SCGLR 827
at 850 especially 852-853
where Date-Bah JSC summed up the
principles governing the review
jurisdiction as follows:-
“I do not
consider that this case deserves
any lengthy treatment. I think
that the applicant represents a
classic case of a losing party
seeking to re-argue its appeal
under the garb of a review
application. It is important
that this Court should set its
face against such endeavour in
order to protect the integrity
of the review process.
This Court
has reiterated times without
number that the review
jurisdiction of this court is
not an appellate
jurisdiction, but a special
one. Accordingly, an issue of
law that has been
canvassed before the bench of
five and on which the court
has made a determination
cannot be revisited in a review
application, simply because the
losing party does not agree with
the determination. This
unfortunately is in substance
what the current application
before this court is.” Emphasis
supplied.
With all the
above authoritative decisions of
the Supreme Court, which has
clearly spelt out the principles
and modalities and governing
review applications, it is
apparent that the task facing
the Applicant herein is indeed a
daunting one. That scenario we
dare say has not been lost on
the Applicant. Learned Counsel
for Applicant has forcefully
urged all the relevant
authorities on review
applications before this court
in their statement of case
correctly, but went off at a
tangent to request this court to
do what is really a tall order.
ANCHOR OF
APPLICANT’S CASE
The anchor of
the Applicant’s case before this
Court has been beautifully set
out in paragraph 38 of the
Statement of case which we
reproduce in full as follows:
My Lords,
Article 296 (a) of the 1992
Constitution provides that
“where in this Constitution or
in any other law discretionary
power is vested in
any person or authority; that
discretionary power shall be
deemed to imply a duty to
be fair and candid”. It is
our respectful submission that
the trial High Court’s
order that the Respondent have
half share in the
Storey-building is most unfair.
We say so because apart from the
fact that Respondent did not
make any contribution to the
acquisition of that property,
it cannot be fair that the
parties be made joint owners of
that property considering the
acrimonious nature of the
divorce and the proceedings
thereof. We are of the
considered opinion that the
learned trial Judge should
rather have ordered financial
provisions for the
Respondent instead of making her
joint owner of the storey
building because
administering /managing that
property by the parties will not
be possible. Peace has to reign
in the aftermath of the divorce
and the surest way is for the
disconnect of the divorce to be
maintained such that the parties
are not seen to be sharing any
heritage apart from the children
of the marriage.” Emphasis
supplied.
Continuing
this line of argument in the
statement of case, learned
Counsel for the Applicant
continued in paragraph 39 thus:
“It is
against this backdrop that we
respectfully pray this
Honourable Court to
examine the evidence that was
adduced before the trial High
Court whether there was any
evidence before it to the effect
that the storey building at
Weija was jointly acquired by
the parties to the marriage
to warrant the said orders of
the High Court,” Emphasis
supplied.
Learned
Counsel then sought to refer to
bits and pieces of evidence to
support this ancient archaic
and backward proposition
of law, to wit the substantial
contribution or contribution
principle to qualify for a share
in property acquired during
marriage upon dissolution of the
said marriage.
What should
be noted is that, the Courts in
Ghana have for a some time now
started whittling down the over
reliance on the contribution
/substantial contribution
principle as a basis for the
sharing of properties acquired
during marriage upon dissolution
of the marriage.
Cases like
Clerk v Clerk [1981] GLR 583,
Boafo v Boafo [2005-2006]
SCLGR 705 and the very
recent decision of this Court in
Mensah v Mensah [2012] 1
SCGLR 391 just to mention a
few, show the gradual shift in
the decisions of this Court
which culminated in the ordinary
bench decision in Arthur v
Arthur which is now on
review in this application.
By these
decisions, it is clear that the
Supreme Court has now endorsed
the “Jurisprudence of
Equality” principle in the
sharing of marital property upon
divorce. In this regard, it is
very difficult for us to
appreciate any exceptional
circumstances that have arisen
to warrant a review of the
ordinary bench decision rendered
on 26th July 2013.
As has been
stated already, we have perused
and considered all the processes
that have been filed before us.
In this regard, we cannot help
but to endorse the opinions of
learned Counsel for the
Respondent when she stated in
her statement of case that:
“Indeed this
default in the argument of
Counsel in his argument of the
Review application has led him
to be indirectly re-arguing the
appeal which sins against
the legal directions for review
already cited and stated.”
Emphasis supplied.
Indeed, this
whole application for review has
been nothing short of a re-hash
of previous arguments at all the
other levels of court,
especially the ordinary bench
which did not find favour with
the court.
For example,
the reliance on article 296 (a)
of the Constitution 1992 to
bolster the case of the
Applicant is nothing short of
reducing this review
jurisdiction to an appellate
jurisdiction. Furthermore the
reference to the said article
296 (a) of the Constitution 1992
creates the false and
unfortunate impression that the
learned trial Judge in this case
did not exercise her discretion
properly. It is not a very easy
task to attack lack or improper
exercise of a Judge’s
discretion. Whenever such an
attack is made, the onus is on
the person attacking the
exercise of discretion to show
how the Judge was wrong in the
exercise of discretion. Having
failed to establish this proof,
the Applicant must be denied
this remedy. See cases of
1.
Buabeng v Fokuo 1970 CC. 59,
quoted with approval in the case
of
2.
Traboulsi v Patterson Zochonis
[1973] 1 GLR 133 at 138
Secondly, the
Applicant has failed to convince
this Court how the half share of
the property granted the
Respondent has caused
exceptional circumstances which
has resulted into miscarriage of
justice.
We are of the
firm view that, the linkage of
the failure of the learned trial
Judge to have made a financial
provision for the Respondent
instead of the half share
granted her in the marital
properties because of perceived
difficulties in the management
of the properties cannot and
should not be used as a basis to
otherwise condemn the excellent
evaluation of the facts of the
case and sound application of
the law.
We are
therefore constrained to send a
note of caution to all those who
apply for the review
jurisdiction of this court in
respect of rule 54 (a) of C. I.
16 to be mindful of the
following which we set out as a
road map. It is neither an
exhaustive list nor one that is
cast in iron such that it cannot
be varied depending upon the
circumstances of each case.
1.
In the
first place, it must be
established that the review
application was filed within the
time lines specified in rule 55
of C. I. 16.
2.
That
there exists exceptional
circumstances to warrant a
consideration of the
application.
3.
That
these exceptional circumstances
have led to some fundamental or
basic error in the judgment of
the ordinary bench.
4.
That
these have resulted into
miscarriage of justice (it could
be gross miscarriage or
miscarriage of justice
simpliciter).
5.
The
review process should not be
turned into another avenue as a
further appeal against the
decision of the ordinary bench.
6.
The
review process should not be
used as a forum for unsuccessful
litigants to re-argue their case
It is only
when the above conditions have
been met to the satisfaction of
the Court that the review panel
should seriously consider the
merits of the application.
In the
instant case, having considered
the review application in the
light of the above criteria and
or road map and also in line
with the phletora of cases that
have been cited by both Counsel
and also referred to in this
judgment, we are of the
considered and firm view that
this application for review
fails in its entirety and is
dismissed.
Under the
circumstances, we affirm the
decision of this court,
delivered by the ordinary Bench
on July 26th 2013.
The review
application therefore stands
dismissed.
(SGD) J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) G. T.
WOOD (MRS)
CHIEF JUSTICE
(SGD) R. C.
OWUSU (MS)
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) A. A.
BENIN
JUSTICE OF THE SUPREME
COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
EGBERT
FAIBILLE JNR. WITH HIM STEPHEN
OWUSU AND SABAH BONNIE FOR THE
RESPONDENT/APPELLANT/
RESPONDENT/APPLICANT.
MRS. M. Y.
N. ACHIAMPONG FOR THE
PETITIONER/RESPONDENT/ APPELLANT
/RESPONDENT. |
