Practice and procedure – Certiorari – Consequential orders – High Court, Accra setting aside judgment of High Court, Ho and its affirmation by Court of Appeal – Supreme Court quashing decision on ground of jurisdictional error – Whether proper for Supreme Court to quash judgments of High Court Ho and Court of Appeal.

Land Administration – Stool lands –  Boundary dispute – Whether court has jurisdiction  to refer dispute pending in court to the Attorney-General under NRCD 172 – Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) ss 4 and 5.

Courts – Supreme Court–– Jurisdiction – Whether Supreme Court established under 1992 Constitution competent to set aside judgment of previous Court of Appeal delivered in 1979.

Courts – Supreme Court – Review – Circumstances in which court will review its judgment.

By his judgment dated 11 November 1975, Francois J, sitting in the High Court, Ho entered judgment against the applicants in a land suit entitled Togbe Ayim Darke IV v Togbe Gobo Darke and another. The applicants appealed to the Court of Appeal on the ground inter alia that the dispute was a boundary dispute and that the High Court did not have jurisdiction having regard to the provisions of the Stool Lands Boundaries Settlement Decree 1975 (NRCD 172). On 30 July 1979 the Court of Appeal dismissed the contention and held that the matter was not a stool land boundary dispute. It however upheld the appeal on the merits and set aside the judgment of the High Court. On 22 February 1989, the High Court, Accra presided over by Omari-Sasu J, set aside the judgments of the High Court, Ho dated 11 November 1975 and the Court of Appeal dated 30 July 1979 on the ground that the dispute between the parties was a boundary dispute and that the jurisdiction of both courts was ousted by NRCD 172. The applicants appealed and by a split decision, the Court of Appeal, on 19 July 1990, dismissed the appeal. The applicants then applied to the Supreme Court for an order in the nature of certiorari to quash the judgments by the High Court, Accra dated 22 February 1989 and the Court of Appeal dated 19 July 1990. By its ruling sub nom Rep v High Court, Accra ex parte Darke [1992-93] GBR 1153, the Supreme Court, by a split decision of 4 to 3 granted the application and set aside the judgments of the High Court presided over by Omari-Sasu J dated 22 February 1989 together with the Court of Appeal decision dated 19 July 1990. By a further split decision of 4 to 3, the court set aside the judgment of Francois J dated 11 November 1975 and the Court of Appeal dated 30 July 1979 as void and referred the dispute between the parties to the Secretary for Justice for determination under the Stool Lands Boundaries Settlement (Amendment) Decree 1986 (PNDCL 147). The applicants applied for review of the ruling of the Supreme Court on the ground of serious inconsistency occasioned by the ambivalence on the part of a member of the panel. They contended that the said member having concurred in granting the application to set aside the judgment of Omari-Sasu J and its affirmation by the 1990 Court of Appeal, thus preserving the judgments of Francois J and the 1979 Court of Appeal, it was not open to him to turn round to concur in a further order suo motu to set aside the very judgments he had brought under the protection of the court. They contended further that as at 30 July 1979, the Court of Appeal was the highest court of the land and its decision could not be challenged subsequently in any court.

Held, Hayfron-Benjamin JSC dissenting, (1) the application did not disclose any exceptional circumstance and would be dismissed accordingly. Swaniker v Adotei Twi II [1966] GLR 151, Buckle v Bassil (1970) CC 6, Fosuhene v Pomaa [1987-88] 2 GLR 104, Penkro v Kumnipah II [1987-88] 1 GLR 558, Akorful v Ahumka Sey 29 March 1988, SC, Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] GLR 598, SC, Ababio v Mensah (No 2)  [1989-90] 1 GLR 573, Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR 130, Asakum Engineering & Construction Limited v Agyekum 11 March 1991, SC, Nasali v Addy [1987-88] 2 GLR 286, Nartey-Tokoli v Volta Aluminium Co Ltd (No 3)  [1989-90] 2 GLR 513 referred to.

Per Adade JSC: It seems we have not yet succeeded in getting litigants to appreciate that a review is not a matter of course. As I see it, a decision by this court, once given, will, as a rule, not be changed. However, to every rule there is an exception, so goes the saying. A party must have to make an exceptional case if he is to succeed in an application for review. Everything apart, that exceptional case must convince the court that there has been a miscarriage of justice.

Per Hayfron-Benjamin JSC dissenting: The review jurisdiction is new. My apprehension is that if we do not take care, the excuse that no exceptional circumstances have been demonstrated and therefore there was no miscarriage of justice may become like Shakespeare’s disguise, a wickedness wherein the pregnant enemy does much. It may become easy for this court to relieve itself of the burden of reviewing a genuine application without ascribing tangible reasons therefor. It is also necessary that we bear in mind that under article 133 of the Fourth Republican Constitution the citizen or litigant now has a constitutional right to apply for a review and his supplications must not be dismissed summarily. It may be said with confidence that we are gradually shaping the parameters of this jurisdiction. A progressive approach to the development of the new jurisdiction should be a better guide than merely dismissing applications on the mere ground that no exceptional circumstances have been demonstrated to warrant a review. Fosuhene v Pomaa [1987-88] 2 GLR 104, Nasali v Addy [1987-88] 2 GLR 286, Arkorful v Ahomka Sey 29 March 1988, SC cited.

(2) Since the Supreme Court held that the judgments of the High Court Ho, dated 11 November 1975 and the Court of Appeal dated 30 July 1979 were void for want for jurisdiction, the court was empowered to set both judgments aside suo motu. Republic v High Court, Accra ex parte Laryea [1989-90] 2 GLR 99, SC, Anane v Efriyea (1940) 6 WACA 169, Chahin v Boateng [1963] 2 GLR 174, SC, Gbadago v Tsili (1957) 2 WALR 219, Seifah v Forfie (1957) 3 WALR 274, PC, Kumnipah II v Ayirebi  [1987-88] 1 GLR 265, SC, Craig v Kanseen [1943] 1 KB 256, Forfie v Seifah [1958] AC 59, Amoabimaa v Badu (1957) 2 WALR 214, Concessions Enquiry No 471 (Ashanti) [1962] 2 GLR 24, Ghassoub v Dizengoff [1962] 2 GLR 133 cited.

Per Amua-Sekyi JSC: I am satisfied that the law requires that where a court delivers a judgment which is a nullity, and another court, by a judgment which is also a nullity, sets it aside and this court is called upon to consider the validity of the second judgment, it should also consider the validity of the first and set both aside.

Per Hayfron-Benjamin JSC dissenting: It must be remembered that the 1979 Court of Appeal was the highest court of the land. Its decisions on matters of law were binding on all courts. Common sense tells me that upon the same principle as the judgment of the 1979 Court of Appeal was set aside in this court, the decision we are presently making may in future be set aside on the ground that we had no jurisdiction so to do. I do not think that is the law. There must be an end to litigation and the judgments of the highest courts of our land in successive generations must be respected.

(3) per Wiredu JSC, Brobbey JA:  His Lordship Amua-Sekyi JSC had made it clear in his judgment that all the judgments in issue were void and he must not be deemed to have endorsed the validity of the judgment of the High Court, Ho presided over by Francois J or the decision of the 1979 Court of Appeal merely because he joined in setting aside the judgments of the High Court presided over by Omari-Sasu J and the Court of Appeal decision dated 22 February 1989.

Per Aikins JSC: The applicants may be right in the view they hold, but can it seriously be said that this is a ground for asking that the judgment be reviewed? I think the answer should be ‘No’. Whatever contradiction may exist cannot create exceptional circumstances that should call for a review of the judgment.

Per Hayfron-Benjamin JSC dissenting: What the applicants are saying is that this court had taken away with the left-hand what it had given with the right hand. I think there is some merit in the grievance. The problem, as has been stated in the statement of the applicants’ case, arises as a result of the stand taken by Amua-Sekyi JSC. The issue is whether if a court grants a motion it is entitled in the same breath to grant to the respondent any prayer that the respondent has not sought. There was clearly a contradiction in the orders and both cannot stand.

Per Hayfron-Benjamin JSC dissenting:  There is no jurisdiction in a court under section 4 or 5 of NRCD 172 to refer any such matter to the Attorney-General. Under section 5(1), it is the parties or any of them who must refer the matter to the Attorney-General. If after two months of such reference the Attorney-General has not referred the dispute to the Stool Lands Commissioner, then either of the parties may refer the matter to the Stool Lands Commissioner.

Cases referred to:

Ababio v Mensah (No 2)  [1989-90] 1 GLR 573.

Aberdeen  Assessors v Collie [1932] SC 304, [1932] Sc LT 128.

Arkorful v Ahomka Sey  29 March 1988, SC.

Amoabimaa v Badu (1957) 2 WALR 214, WACA.

Anane v Efriyea (1940) 6 WACA 169.

Asakum Engineering & Construction Limited v Agyekum  11 March 1991, SC.

Bassil v Buckle (1970) CC 6, CA.

Chahin v Boateng [1963] 2 GLR 174, SC.

Concessions Enquiry No 471 (Ashanti) Asukese Forest Reserve  Timber Concession  [1962] 2 GLR 24, SC.

Craig v Kanseen [1943] 1 KB 256, [1943] 1 All ER 108, 112 LJKB 228, 168 LT 38, CA.

Forfie v Seifah [1958] AC 59, [1958] 2 WLR 52, [1958] 1 All ER 289, PC.

Fosuhene v Pomaa  [1987-88] 2 GLR 104, SC.

Gbadago v Tsili (1957) 2 WALR 219, WACA.

Ghassoub v Dizengoff  (WA) [1962] 2 GLR 133, SC.

Kodilinye v Odu (1935) 2 WACA 336.

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

MacFoy v UAC Ltd  [1961] 3 WLR 1405, [1962] AC 152, [1961] 3 All ER 1169, 105 SJ 1067, PC.

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

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

Nartey Tokoli v Volta Aluminium Co Ltd  (No 3) [1989-90] 2 GLR 513, SC.

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

Penkro v Kumnipah II [1987-88] 1 GLR 558, SC.

Quarcoo v Afranie  20 October 1992, SC.

Republic v Adansi Traditional Council, ex parte Nana Akyie II [1974] 2 GLR 126, CA.

Republic v High Court, Accra, ex parte Laryea [1989-90] 2 GLR 99, SC.

Ribeiro v Ribeiro (No 2)  [1989-90] 2 GLR 130, SC.

Seifah v Forfie (1957) 3 WALR 274, PC.

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

APPLICATION to the Supreme Court for review of its split decision on an application for certiorari.

S Kwami Tetteh for the applicants.

B J da Rocha (with him Eric Gyamson) for the respondents.

ADADE JSC. On 20/10/92 we dismissed this application for review, but reserved the reasons for today. This court has, time and again, in a number of rulings, tried to explain the circumstances in which the court will entertain applications for review. It seems we have not yet succeeded in getting litigants to appreciate that a review is not a matter of course. As I see it, a decision by this court, once given, will, as a rule, not be changed. However, to every rule there is an exception, so goes the saying. A party must have to make an exceptional case if he is to succeed in an application for review. Everything apart, that exceptional case must convince the court that there has been a miscarriage of justice. The decision we gave on the 30/3/92 was to the effect that:

(a) the judgment of the High Court presided over by Omari-Sasu J, dated 22/2/89 and of the Court of Appeal dated 19/7/90 confirming it, are null and void;

(b) the decision of the High Court presided over by Francois J, dated 11/11/75 and of the Court of Appeal dated 30/7/79, are also null and void for want of jurisdiction on the ground that,

(c) the matter before the High Court presided over by Francois J was a stool land boundaries settlement issue, and was cognisable only by the Stool Lands Boundaries Settlement Commission, to which it ought to have been referred. We accordingly referred it to that Commission, via the Attorney-General.

Each of these decisions was a split decision, in each case by a majority of 4 to 3. It is not necessary to state which justices were in which camp in relation to which decision; the decisions remained the decision of the original court. For this review, two new justices have been added to the panel of seven judges. Their presence has not had any effect on the decision of 30/3/92, as both are of the opinion that the decision by Francois J is void.

It must be pointed out that the matter had come before this court in the first place as a result of an application for certiorari to quash the decisions recited in (a) above only. It is said in the instant application for review that we should have stopped with the decision on (a) supra, and not proceeded to decide (b) and (c). This may well be so. But if indeed the matter before Francois J was basically a stool lands boundaries issue, then Francois J would not have had jurisdiction, and his decision, as that of the Court of Appeal arising from it, would be void. This court, on becoming aware of it, could, on its own motion, set it aside. The foundation for the decision of the Court of Appeal dated 30/7/79 would have collapsed, and setting aside that decision would be a mere formality. Having set aside all the decisions in the case from Francois J delivered in 1975, and of the Court of Appeal dated 1990, it appeared that there was nothing before any court to refer to the Stool Lands Boundaries Settlement Commission, thus making the decision in (c) above, on the face of it, not easy to defend. It would seem that it might have been better to have sent the case back to the High Court for the High Court of take appropriate measures. However, this court sitting in an appellate or supervisory capacity, may exercise any powers which a court from which a particular case has come, could have exercised. Accordingly, referring the matter ourselves rather than sending it down for the High Court to discharge the same function, cannot be said to have occasioned a miscarriage of justice. On the contrary, it has saved costs and cut down on delays. I do not see that the applicants have made an exceptional case for a review. That is why I held the view that notwithstanding the fact that each of the decisions above was a split decision, the application could not, on principle succeed.

AMUA-SEKYI JSC. The decision of the court that the dispute between the Peki and Tsito stools be referred to the Stool Lands Boundaries Settlement Commissioner for adjudication was fair. After all, it was the Tsito stool which, in the earlier proceedings, had argued that Francois J had no jurisdiction to entertain the suit. That the objection was overruled does not, in my view, give it an excuse to seek to benefit from the wrongful assumption of jurisdiction by the High Court and the Court of Appeal.

Counsel defends his position by arguing that as on 30 July 1979, the Court of Appeal was the highest court of the land and its decision cannot be challenged. If counsel is right, then a void judgment of the highest court of the land can never be set aside.

Counsel was being less than honest with himself when he submitted that by granting his application to set aside the later judgments I had “preserved” the earlier ones on which his clients

 relied and brought [them] under protection of the court. As counsel well knows, in determining whether a court had jurisdiction to deal with a case and deliver a judgment the question whether the judgment as delivered was sound is irrelevant. In Republic v High Court, Accra ex parte Laryea [1989-90] 2 GLR 99, this court put it thus:

“By jurisdiction is meant, of course, the power or authority of the court or judge to give a decision on the issue before it; and, in this regard the correctness or otherwise of the decision is irrelevant: for, if there is no jurisdiction, the decision will be quashed although it be right.”

Far from such a position being self-contradictory or ambivalent, it is what the law requires as, indeed, happened in Anane v Efriyea (1940) 6 WACA 169. In that case, the defendant, in an action in the court of the Chief Commissioner for Ashanti, raised a plea of res judicata. After taking evidence and hearing counsel, the Commissioner ruled that the judgment relied on was a nullity and that the plea failed. When the suit came before a differently constituted court for hearing on the merits, the defendants raised the plea of res judicata again. In spite of protests by counsel for the plaintiff, the plea was upheld. On appeal, the second decision was set aside as void and the first as wrong. The suit was remitted to the court below with a direction that the action of the plaintiff be dismissed. The court said at page 171-172:

“The defendant’s remedies, if dissatisfied with the judgment of Dickinson… were either to appeal as against an interlocutory judgment within the time provided ad hoc or to raise the matter on appeal after final judgment. The appellant therefore succeeds in his contention that the judgment of Dickinson… still stands as the decision of the court below upon the question or res judicata and the ruling of Bowes …purporting to make a decision in the opposite sense, is void. However … we are clearly of opinion that the judgment of Dickinson… was wrong, and that the plea of res judicata must succeed.”

Equally instructive, is Chahin v Boateng [1963] 2 GLR 174 , SC where after delivering a judgment Ollennu J, suo motu, reviewed it to take account of section 19 of the Moneylenders Ordinance Cap 176 (1951 Rev), which he had overlooked. On appeal, the Supreme Court set aside the review as void and the original judgment as wrong. It applied section 19, as Ollennu J had done, to dismiss the action. The court said, per Korsah CJ at pages 177 and 178:

“…although the learned judge could have reviewed the judgment if an application for review had been made by either party, he could not suo motu order a review and proceed to vary the judgment which he had previously delivered. This is the contention of the appellant upon which this appeal has been lodged and on this ground the appellant is entitled to succeed in vacating the judgment from which he has appealed…But when the judgment on review is vacated, does it mean, as counsel for appellant had argued, that the original judgment given per incuriam contrary to the provisions of the Moneylenders Ordinance is to be restored and allowed to stand, without this appellate court being competent to discharge it and give such judgment as should be given by law? We think not;”

In the instant case, we would have been failing in our duty if after agreeing with counsel for the Tsito stool that the judgments on which the Peki stool relied were void, we had not also considered whether the judgments on which the Tsito stool relied were valid when the issue of their invalidity had been raised by counsel for the Peki stool. It would have been a classic illustration of the proverbial ostrich with its head in the sand. The power of this court to set aside as void the judgments on which the Tsito stool relied is derived from the age old rule that every court or adjudicating body has power to set aside its own void orders or judgments. The rule was discussed in Gbadago v Tsili (1957) 2 WALR 219 and Seifah v Forfie (1957) 3 WALR 274, PC. In the former, the question was whether a native court had power to set aside its judgment obtained by fraud. Dealing with this, the West African Court of Appeal said per Korsah CJ at page 222:

“…the power of a court to exercise such a jurisdiction is derived not from any statute but upon the principle that a court has inherent right to set aside its own order if procured by fraud.”

The latter was a Privy Council decision and, again was concerned with whether a court this time, that of the Chief Commissioner of Ashanti, had power to set aside a judgment it had delivered without jurisdiction. Reversing the decision of the West African Court of Appeal, their Lordships said at page 279:

“A court has inherent power to set aside a judgment which it has delivered without jurisdiction.”

When the case comes up before a higher court on appeal or in exercise of its supervisory jurisdiction, the position is not much different. Article 116(4) of the Constitution of Ghana, 1979 provides:

“4. For the purpose of hearing and determining a matter within its jurisdiction and the amendment execution or the enforcement of a judgment or order made on any such matter, and for the purpose of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”

Commenting on this Francois JSC said in Kumnipah II v Ayirebi [1987-88] 1 GLR 265:

 “In my view, the very wide powers provided by this article would enable this court to entertain the matter now before us to examine on its merits the purported jurisdictional claims of the erstwhile full bench of the Court of Appeal.”

In that case, the Court of Appeal had been called upon to set aside as void a judgment of the Court of Appeal set up under the Courts Decree 1966 (NLCD 84). It ruled that it had no jurisdiction to do so. That decision was reversed by this court and the judgment set aside.

I am satisfied that the law requires that where a court delivers a judgment which is a nullity, and another court, by a judgment which is also a nullity, sets it aside and this court is called upon to consider the validity of the second judgment, it should also consider the validity of the first and set both aside. It was for these reasons that I concurred in the order dismissing the application for a review.

OSEI-HWERE JSC. I have been privileged to read in advance almost all the opinions of my brothers who, like me, concurred in the dismissal of the motion for review. I have nothing substantial to add to their opinions except to deflate the conception ventilated in the applicants’ statement that, as the final court, the 1979 Court of Appeal had made a pronouncement on its jurisdiction and that of Ho High Court (Coram: Francois J) and accordingly this court had no jurisdiction or power to review or sit as if on appeal over the matter. To the applicants, the doctrine of estoppel per rem judicatam was accordingly binding on this court as on any court in the lower rung. The fallacy of the argument is exposed by the constitutional mandate which, although normally enjoining this court to follow its previous decision, empowers it to depart from it when it is right to do. Herein springs the power of the court to overrule its previous decision. Quite apart, the question of want of jurisdiction unshackles all fetters and this court can hereby properly set aside the decision of the 1979 Court of Appeal for want of jurisdiction. The above reasons informed my decision to concur in dismissing the motion.

AIKINS JSC. This court on 20 October 1992 dismissed the application for review before it and adjourned for reasons to be given later. I now give my reasons for supporting the dismissal of the application. The application was for review of the decision of this court delivered on 30 March 1990. The decision was as follows:

(a) The judgment of the High Court presided over by Omari-Sasu J dated 22 February 1989 and the judgment of the Court of Appeal dated 19 July 1990 are set aside as void;

(b) The judgment of the High Court presided over by Francois J dated 11 November 1975 and the judgment of the Court of Appeal dated 30 July 1979 are also set aside as void;

(c) The dispute between the parties is referred to the Secretary of Justice to be dealt with under s 5(2) of the Stool Lands Boundaries Settlement (Amendment) Decree 1986 (PNDCL 147).

The main contention of the applicant is that the decision of the court shows a serious inconsistency, and invites the court to have a second look at its judgment. All the three decisions are split decisions of 4 to 3. He pegs his complaint to the fact that the main issue of his application before this court in March 1992 was whether or not Omari-Sasu J had jurisdiction to set aside the judgment of Francois J and the judgment of the 1979 Court of Appeal, and this court by a split majority of 4 to 3 decided in his favour. Even though Amua-Sekyi JSC agreed with the majority view, he further set aside the judgments of Francois J and the 1979 Court of Appeal as void.

Granted, the applicants may be right in the view they hold, but can it seriously be said that this is a ground for asking that the judgment should be reviewed? I think the answer should be “No”. Every judgment of a court of competent jurisdiction can be criticised one way or the other by counsel who lost the case, but I do not think that a criticism of this nature should be a ground for asking the said judgment to be reviewed. Whatever contradiction that may exist cannot create exceptional circumstances that should call for a review of the judgment. In my considered view, the move by the applicants is just an attempt to re-open the case for the purposes of re-arguing the appeal, and this is what this court has consistently held it would not entertain unless the court’s attention is drawn to exceptional circumstances which give rise to miscarriage of justice; see Fosuhene v Pomaa [1987-88] 2 GLR 104, SC, Nasali v Addy [1987-88] 2 GLR 286, SC and Arkorful v Ahomka Sey  29 March 1988, SC.

It is for these reasons that I held that the application failed and should be dismissed.

WIREDU JSC. On March 30, 1992, following the decision of this court in Civil Motion 46/1991, the court made the following orders:

“(1) We allow the application (Osei-Hwere, Wiredu, JJSC and Kpegah, JA dissenting). The judgment in Suit No 3740/87 Togbe Kwadjo Dei XI v Togbe Darke XII, High Court, (Omari-Sasu, J) dated 22/2/89; and the judgment in Civil Appeal No 111/89 dated 19/7/90 are hereby set aside as void.

 (2) We also made the following order, (Adade, Aikins and Hayfron-Benjamin, JJSC dissenting):

(a) The judgment in Tr.L.22/57 Togbe Ayim Darke IV v Togbe Gobo Darke, High Court (Francois J) dated 11/11/75 and the judgment in Civil Appeal No 202/76 Togbe Gobo Darke v Togbe Ayim Darke IV CA dated 30/7/79 are also set aside as void;

(b) The dispute between the parties is referred to the Secretary for Justice to be dealt with under s 5(2) of the Stool Lands Boundaries Settlement (Amendment) Decree 1986 (PNDCL 147). There will be no order as to costs in these proceedings.”

It is the decision of the court emanating from the above motion 46/91 which has provoked the present application for review.

A brief history of this case reveals a long and chequered standing land litigation commonly known as the Peki-Tsito land litigation between the parties. At the time of the application in Civil Motion No 46/91, the respondents had, by an action commenced at the High Court, Accra presided over by Omari-Sasu J on 22/2/89, set aside the judgment delivered in May 1975 by Francois J at the High Court, Ho which had been affirmed by the Court of Appeal on July 1979 (coram: Lassey, Archer and Kingsley-Nyina JJA). Omari-Sasu J’s judgment was affirmed by the Court of Appeal (coram: Essiem, Ampiah JJA, Lamptey JA dissenting) dated 19/7/90. The latter decision was in favour of the applicants. The applicants, aggrieved by the decision of the Accra High Court as affirmed by the Court of Appeal, brought Civil Motion No 46/1991, invoking the supervisory jurisdiction of this court for an order of certiorari to quash the decision of the High Court (Coram: Omari-Sasu J) as well as the Court of Appeal (Coram: Essiem, Ampiah JJA, Lamptey JA dissenting), as recited supra. The respondents resisted that application, and for their part, put in issue the validity of two earlier judgments delivered in May 1975 by Francois J at the Ho High Court and the Court of Appeal decision dated July 1979 per Lassey, Archer and Kingssley Nyinah JJA as stated above. It is the decision and orders given in Civil Motion 46/91 which have provoked the present application for a review under the inherent jurisdiction of this court as enunciated in cases like Fosuhene v Pomaa [1987-88] 2 GLR 104, Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 593.

In order to appreciate the full effect and the impeccable nature of the decision and the orders from which the present application has been brought, it may be necessary to recite, in a nutshell, the events which took place at the various conferences held to decide the application. Following the last conference held to decide the fate of the application invoking the supervisory jurisdiction of this court, the presiding judge Adade JSC, caused a letter to be circulated to all the members of the panel in the following form:

“5 March 1992.

 

Dear judge,

EX PARTE DARKE XII

At our last conference, we decided to exchange drafts with a view to narrowing differences and achieving a broad consensus. It strikes me that it may not be feasible to exchange full-length opinions, since these may take some time to write.

2. May I propose therefore that we rather exchange synopses only of our opinions, indicating our lines of thought. With the background of our previous discussions, these synopses will be sufficient to let each know how we see the problem.

3. I end herewith a summary of my own opinion, for your comment. If you should need me for discussion on any of the matters I have raised, I will be all too willing to attend your call.

 

Sincerely yours,

 

N Y B  Adade

JUSTICE OF THE SUPREME COURT

 

The Hon Mr Justice Amua-Sekyi JSC.

The Hon Mr Justice Osei-Hwere JSC.

The Hon Mr Justice Aikins JSC.

The Hon Mr Justice Wiredu JSC.

The Hon Mr Justice Hayfron-Benjamin JSC.

The Hon Mr Justice Kpegah JA.”

Attached to the letter was the following guidelines among others

“NOTES RE: DARKE

(P = Plaintiff = Respondent in Phase 3)

(D = Defendant = Applicant in Phase 3)

(A) Phase I

(a) November 1975 Francois: P wins, D loses (HC).

(b) July 1979 Lassey: P loses, D wins (CA).

(c) July 1985 SC - attempt by P to get SC take over the case fails.

Phase II

(a) Feb 1989 Omari- Sasu: P wins, D loses (HC).

(b) July 1990 Essiem: P wins, D loses (CA).

SC - D fails to secure extension of time to admit statement of case.

Phase III

August 91 SC - Present application by D to quash Phase II only.

(B)(i) It is agreed that Phase II is a nullity on the principle of respect for the hierarchy of the courts. This has nothing to do with the subject matter of the suit. It is simply that an issue determined by the Court of Appeal cannot be taken over by the High Court to be vetted and approved or disapproved. It can only go back to the same Court of Appeal for a review or also go to a higher forum on appeal or for supervisory orders. This would normally seem to conclude the matter, but see (c) below.

(C)(i) In the course of arguments in Phase III, this court’s attention has been drawn to the decisions in Phase I.

(ii) The principle is that if Phase I is a nullity, there need not be a formal application to the court to act; we can, on our own initiative, suo motu, declare it so and set it aside.” (The emphasis is mine.)

It will be appreciated from the above analytical synopsis that in dealing with the application for certiorari the validity of all the four judgments referred to above (Phase I and Phase II) were put in issue. Phase II by the applicants and Phase I by the respondents in their answer to the application. This latter is permissible and recognised and has the support of the decision of this court in Penkro v Kumnipah II [1987-88] 1 GLR 558 and is also supported by the guidelines supra B(i) (C)(i) and (ii). It is my respectful view that the guidelines quoted and given above apart from B(i) represent the actual positions with regard to all relevant issues raised for consideration and determination in the application for certiorari. I have underlined the phrase “It is agreed” in B(i) supra because events which occurred later in the discussions show that different views were expressed as to its accuracy and needed to be thus qualified. The above synopsis of the matters raised for consideration legitimately entitled each member of the panel to express his views on each of the issues raised. This is how I understood the way the application was dealt with and I think this was how my other brothers also understood the situation.

In considering the question as to whether the judgments in Phase I are a nullity as prayed for in the application, Adade, Aikins and Hayfron-Benjamin JJSC held that they were. They therefore granted the application. On this issue Osei-Hwere, Wiredu, JJSC and Kpegah JA dissented. They did not however end there. They proceeded and emphatically affirmed the validity of the two judgments. This was how Phase II was concluded. In considering the fate of the judgments in Phase I (supra) Osei-Hwere, Wiredu JJSC and Kpegah JA held those judgments to be null and void whilst Adade, Aikins and Hayfron-Benjamin JJSC held them to be valid. The position of Amua-Sekyi JSC, in dealing with the two phases looks different. It is also his stand, which seems to be the subject of attack in this review. I have therefore found it necessary in my ruling to deal with his position separately in order to bring out what appears to have been overlooked by the applicants in my respectful view, and impelled them into presenting their present application for review.

The stand of Amua-Sekyi JSC, as I can glean from a careful reading of his opinion, is that in his view, the four judgments in Phases I and II in the synopsis supra are all null and void. He must not be deemed impliedly to have endorsed the validity of the judgments in Phase I merely because he joined in granting the application brought by the applicants. He did not say so anywhere in his opinion. He did not endorse the validity of the judgments in Phase I as the other three judges did (i.e. Adade, Aikins and Hayfron-Benjamin JJSC). His view is clearly shown in his opinion that all the four judgments are void. He dealt with the four decisions under B(i) and C(ii) supra in the synopses, looking at them from the point of view of the Supreme Court as the highest court competent to declare any judgments brought before it as either being valid or null and void under its supervisory jurisdiction over all courts in the country and I think he was legitimately entitled in my respectful view to do so. In his view the transferred suit which Francois J purported to determine is still pending in the Ho High Court because by holding that all the judgments under consideration i.e. Phases I and II are all null and void, he is in effect saying that nothing has happened to that case. Having so held that the Ho High Court was incompetent to deal with the subject matter pending before it for want of jurisdiction, the only option open to him within the limits of the law was to direct the attention of the Attorney-General and Secretary for Justice to this pending suit and to ask for its reference to the Stool Lands Boundary Settlement CommissionTribunal which he rightly directed. I have had great difficulty in appreciating the legitimacy of the present complaints of the applicants which in a nutshell is clearly shown in the affidavit of Togbe Darke II which reads as follows in paragraph 3.

“3. We are dissatisfied with the said judgment and hereby apply for review thereof on the following grounds.

(i) The judgment of this honourable court is self-contradictory and based on conflicting findings.

 (ii) This honourable court committed a jurisdictional error when it purported to set aside the judgment of the Court of Appeal dated 30 July 1979.”

The complaint continues:

“The applicants contend, without intending offence, that the contradiction was occasioned by the ambivalence in the judgment of Amua-Sekyi JSC. Having granted the applicants’ application and set aside the judgments of Omari-Sasu J and the 1990 Court of Appeal and thus preserved the judgments of Francois J and the 1979 Court of Appeal, it was not open to His Lordship to turn round and set aside the very judgments he had brought under the protection of the court.”

The above is a clear misrepresentation of the views expressed by Amua-Sekyi JSC. Nowhere in his opinion did he preserve the judgments in Phase I. There is no inconsistency shown. Each member of the panel of this court was entitled to express his opinion on each of the issues raised for consideration and the way I understand the

 opinion of Amua-Sekyi JSC, as shown above, is that in his view all the four judgments in Phases I and II supra are nullities and he is legitimately entitled to so hold. To him therefore the case concluded by Francois J at the Ho High Court is still pending unheard. To me there can be no legal justification for the applicants’ present complaint which I consider as misconceived and unmeritorious. For the above reasons, I concurred in dismissing the application.

HAYFRON-BENJAMIN JSC. On 20 October 1992, we dismissed this application for review of the ruling which we delivered on 30 March 1992, and reserved our reasons. On that date, when we dismissed the application for review, I had some misgivings about the decision which we announced. However the overwhelming majority of my learned and respected brothers had indicated quite firmly that they would not review their former decision and would affirm the same. Our two new learned brothers of appeal have also expressed themselves in favour of maintaining the status quo and affirming the earlier decisions of this court to which they were not privy. It seems to me that all my learned brethren hold entrenched views on the issues raised by the application for review and had decided that there were no exceptional circumstances leading to a miscarriage of justice.

In Quarcoo v Afranie dated 20 October 1992, I had occasion to discuss the applicability of this ground of exceptional circumstances which is really a ground borrowed from the Court of Appeal Rules 1962 (LI 218) to applications for review in this court. It must be admitted that the jurisdiction to review cases heard by this court is new and indeed assumed under the inherent jurisdiction of this court to correct inadvertent mistakes, misapplications of the law and such errors which patently do not accord with the law. In the Quarcoo case supra, I stated that when it comes to exceptional circumstances, each application must be considered on its merits. I did not mean by that statement that this court should lean over backwards to entertain all manner of applications frivolous or otherwise for review. My apprehension is that if we do not take care, the excuse by this court that no exceptional circumstances have been demonstrated and therefore there was no miscarriage of justice may become like Shakespeare’s disguise - a wickedness wherein the pregnant enemy does much. It may therefore be easy for this court to relieve itself of the burden of reviewing a genuine application without ascribing tangible reasons therefor. It is also necessary that we bear in mind that under article 133 of the Fourth Republican Constitution the citizen or litigant now has a constitutional right to apply for a review and his supplications must not be dismissed summarily. In Nartey-Tokoli v Volta Aluminium Co Ltd (No 3) [1989-90] 2 GLR 513, this court observed 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 of inappropriate and undeserving cases.”

I agree with the observation. Indeed in Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598 and other cases, this court has sought to give real meaning to this principle of exceptional circumstances leading to a miscarriage of justice that it may be said with confidence that we are gradually shaping the parameters of this jurisdiction to review. This progressive approach to the development of this new jurisdiction should then be a better guide to this court than merely dismissing applications on the bare ground that no exceptional circumstances have been demonstrated to warrant a review. The jurisdiction to review is productive of many results. It is not, in my view an all or nothing application in which the court is called upon either to grant or reject the application. The jurisdiction to review has been vested in various courts in the last century or so in which we have had a Supreme Court within our municipality. Combining all the jurisdictions, the result of an application for review, which may usefully be granted in this court, should include the power to reverse, vary, confirm, amend or reduce our previous judgment or decision. Therefore, quite apart from the necessity to observe the parameters and admit other new grounds for the application, it is incumbent upon the court to ascertain just what the application seeks and to decide firmly in favour of one of the above-mentioned results. In my respectful opinion, it will not be correct for this court to declare that the application succeeds or fails. The court must with certainty declare in favour of one of the results stated above.

It is with these matters in mind that I approach the prayer of the applicants. The two grounds for their application stated in paragraph 3 of their affidavit dated 10 April 1992 are as follows:

(i) The judgment of the court is self-contradictory and based on conflicting findings.

 (ii) The court committed a fundamental error when it purported to set aside the judgment of the Court of Appeal dated 30 July 1979.

If I comprehend the applicants’ case correctly, what they are saying is that this court having granted their application for certiorari it was wrong for the same court, as it were, to grant the respondent’s original relief which he sought before Omari-Sasu J and same was confirmed by the majority of their Lordships in the Court of Appeal in 1990. In other words this court had taken away with the left hand what it had given with the right hand. I think there is some merit in the applicants’ first ground. If I understand the writ of certiorari correctly, the purpose is to quash the proceedings. Funk & Wagnall’s Standard International Dictionary defines to quash as “at law to make void or set aside.” Thus in quashing the two judgments of Omari-Sasu J and the 1990 Court of Appeal, the judgments were rendered void. In the view of the applicants if they won because the judgments referred to were void, then there was no basis for the subsequent orders which were made by this court.

It must be said, however, that when a court makes an order in favour of a party it may make ancillary orders which are usually denoted on the motion paper as such further order or orders must naturally flow from the order and be beneficial to the successful applicant. In the Republic v Adansi Traditional Council, ex parte Akyie II [1974] 2 GLR 126, Anin JA granted the application for certiorari and ordered the case to be reheard by a properly constituted panel. The objection in that case was that less than half the members of the traditional council had sat to determine the queenmother’s case in contravention of the statutory provision. In the present application, the applicants contend that the judgments were void for the reasons stated by the majority and therefore it was not open to another majority to pronounce on the second and third orders. They contend further that the decision which we could have come to was the decision in (a) of our orders.

Of the majority which found in favour of the applicant, three of us came to the conclusion that the judgment of Lassey JA in the Court of Appeal was right while the fourth, my learned and respected brother Amua-Sekyi JSC, arrived at the same conclusion but by a diametrically opposite route. He concluded that all judgments were void. The problem as has been stated in the statement of the applicants’ case arises as a result of the stand taken by Amua-Sekyi JSC.

In my concluding remarks contained in my original opinion, I stated that the only extant judgment in the application is the 1979 Court of Appeal judgment and I still hold that view. It has been said that there is jurisdiction in this court when it comes across a void judgment to set it aside. That may well be so but it must be remembered that in the instant case, the 1979 court was the highest court of the land. Its decisions on matters of law were binding on all courts. It must take very strong reason for any court, even this court to declare such a judgment void. In my respectful opinion, the 1979 Court of Appeal dealt amply with the issue whether the matter as one which was caught by the NRCD 172 denominated in these proceedings as “Ground 24.”

I have in my original opinion stated my views on the nature and quality of the jurisdiction of the Court of Appeal and I have no reason to change them. Suffice to say that if I am wrong in the view I take and that the 1979 judgment of the Court of Appeal is also void and we must remember that the Court of Appeal set aside the Francois J judgment and therefore there was no such judgment subsisting when Omari-Sasu J embarked upon his enquiry; then there was nothing on which to hang the order for a reference to the Attorney-General. Lord Denning has expressed his views on the quality of a void act or judgment in McFoy v UAC [1961] 3 WLR 1405 at 1409 as follows:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the courts to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Emphasis mine.)

I am of the view that NRCD 172 does not confer any jurisdiction on this court or any other court, with respect to section 4(2) thereof to refer any matter to the Stool Lands Boundary Settlement Commissioner. In my original contribution, I stated that:

“A casual reading of section 5 will reveal that the reference in section 5 is to the Commissioner for Lands now the Attorney-General. There is also no jurisdiction vested in a court under section 4 or 5 to refer any such matter to the Attorney-General. If my reading of section 5(1) is correct, it is the parties or any of them who must refer the matter to the Attorney-General. If two (2) months after such reference the Attorney-General has not referred the dispute to the Stool Lands Commissioner, then the parties or either of them may refer the matter to the Stool Lands Commissioner. Thus even though the Stool Lands Commissioner has exclusive jurisdiction to determine the boundary, there is no direct reference to him of any such issue. See section 14 of NRCD 172 and interpretation of the word ‘enquiry’.”

Consequently, if in the view of the other majority of this court, the 1979 Court of Appeal was mandatorily caught by the provisions of section 4(2) of NRCD 172 and therefore its jurisdiction was ousted, then in accordance with the provisions of sub-section 4(2) of the Decree, all the court had to do was to decline jurisdiction. The court would not have the jurisdiction to remit the matter to any other forum. Again, if my learned and respected brothers were correct in their view that the 1979 Court of Appeal judgment was void, then on the authorities since the proceedings before the 1979 Court of Appeal were void any proceeding which is founded on it is also bad and incurably bad. There is therefore in reality no contest and the parties should have been left to determine whether they will pursue their claim in the right forum at the various stages of the litigation when it suited them, each said the matter was one concerning stool lands.

But this is but one reason for upholding the 1979 Court of Appeal judgment. If indeed this court holds that, for the reasons given the 1979 Court of Appeal judgment is void, then on the principle that there is no time limit for setting aside a void judgment, which is the ground of those who support orders (b) and (c), then there is going to be a plethora of litigation in the name of stool land boundary disputes. It may very well be that legal ingenuity has propelled the present litigants to these heights. There is no evidence that this was the only litigation pending when NRCD 172 was passed and others will be encouraged to come forward.

I am not in anyway saying that for convenience we must uphold the 1979 Court of Appeal decision. But common sense tells me that upon the same principle, the decision we are presently making may in future be set aside on ground that we had no jurisdiction so to do. I do not think that is the law. There must be an end to litigation and the judgments of the highest courts of our land in successive generations must be respected. The real matter involved in the application is procedural. Of course, if a court arrives at a decision by a method which is not warranted by the law of procedure such a decision is void. The issue is whether if a court grants a motion it is entitled in the same breath to grant to the respondent any prayer that the respondent has not sought for. The applicants say that this is the contradiction which has arisen and we must correct it. In the celebrated case of Kodilinye v Odu (1935) 2 WACA 336, it was decided that a non-counterclaiming defendant who was successful was only entitled to a judgment dismissing the plaintiff’s case he not having asked for any reliefs. By the same token, since in a motion it is only the applicant who is praying for the relief, which the respondent is resisting, it is only the applicant who can get his prayer. If the applicant fails, the respondent is not entitled to any relief but costs, if at all. In the instant case the respondent got what was awarded him by Omari-Sasu J and the majority of the Court of Appeal, which this court by a majority decided were null and void. There was clearly a contradiction in the orders and both cannot stand.

I have done a lot of heart searching in an attempt to achieve some harmony with my learned and respected brothers on the stands they have taken but I find that a case has been made out for a review. I have said that contrary to popular beliefs an application for review is not an all or nothing process. The court must necessarily come to a conclusion in the terms I have stated in this opinion and ascribe reasons therefor. I would therefore vary the orders made on the 30 March 1992 by deleting the whole of paragraphs (b) and (c) of the said orders.

As a postscript, I regret to say that by the refusal to review the decision, the majority seem to have been fanning the embers of a litigation which has already lasted forty years and they have condemned the parties to another generation of litigation. My learned and respected brother Aikins JSC’s original contribution sets out clearly the real evidence involved in the litigation and I am satisfied that the 1979 Court of Appeal was right in their judgment. I will therefore confirm my original opinion and vary the orders made by deleting the orders (b) and (c).

AMUAH JA. This is a motion for review of the judgment of this court dated 30 March 1992. On 20 October 1992 this court dismissed the motion for review and reserved its reasons. I now give reasons why I agreed with the decision taken by this court. On 30 March 1992, my brothers delivered their opinions after which the judgment or order of the court was given pursuant to rule 61 of the Supreme Court Rules 1970 (CI 13). The order made by this honourable court is as follows:

“1. We allow the application (Osei-Hwere, Wiredu, JJSC, Kpegah JA dissenting) the judgment in suit No 3740/87 Togbe Kwadjo Dei XI v Togbe Gobo Darke XII (High Court Omari-Sasu J) dated 22 February 1989 and the judgment in Civil Appeal No 111/89 Togbe Gobo Darke v Togbe Kwadjo Dei dated 19 July 1990 are hereby set aside as void.”

We also made the following orders (Adade, Aikins and Hayfron Benjamin, JJSC dissenting).

a. The judgment in suit No 22/57 Togbe Ayim Darko IV v Togbe Gobo Darke, High Court (Francois J) dated 11/11/75 and the judgment in the Civil Appeal No 202/76, Togbe Gobo Darke v Togbe Darke IV (Civil Appeal) dated 30 July 1979 are set aside as void.

b. The dispute between the parties is referred to the Secretary for Justice to be dealt with under section 9(2) of the Stool Lands Boundaries Settlement (Amendment) Decree 1986 (PNDC 147). There will be no order as to costs in these proceedings.”

The applicants, dissatisfied with the said judgment or order have applied for review thereof on the following grounds:

“a. The judgment of this court is self-contradictory and based on conflicting findings.

b. This court committed jurisdictional error when it purported to set aside the judgment of the Court of Appeal dated 30 July 1979.”

I have read the statements of the parties as well as the decision delivered by each of the justices and the final order made on them. While Adade, Aikins and Hayfron-Benjamin JJSC are of the opinion that the real issue before the court is not the situation of a stool land boundary, Osei-Hwere, Wiredu JJSC and Kpegah JA hold a contrary view. In this sense, the opinions held by the two groups are conflicting. However, Amua-Sekyi JSC, by expressing his opinion on the issue of jurisdiction in support of the stand taken by Osei-Hwere, Wiredu JJSC and Kpegah JA, transformed the view of the latter into a majority opinion which becomes the decision of this court and this carries with it far-reaching consequences. The overriding majority decision is that:

“The dispute as to the situation of the boundary between the two stools be referred to the Stool Lands Boundary Settlement Commissioner.”

The issue of jurisdiction is therefore closed and cannot be reopened and reargued. Section 4(i) of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) provides:

“The Commissioner shall have exclusive jurisdiction to determine the boundaries of stool lands and to hear and determine questions of dispute relating thereto.”

In the case of Mosi v Bagyina [1963] 1 GLR 337 at p 338 holding 4 the following passage appears:

“Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set aside, either suo motu or on the application of the party affected. No judicial discretion arises here. The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or a judge; and the constitution of the court is for this purpose immaterial. Further, there is no time limit in which the party affected by a void order or judgment may apply to have it set aside. Craig v Kanseen [1943] 1 KB 256, CA; Forfie v Seifah [1958] AC 59, PC, Amoabimaa v Badu (1957) 2 WALR 214, Concessions Enquiry No 471 (Ashanti) [1962] 2 GLR 24, SC and Ghassoub v Dizengoff [1962] 2 GLR 133, SC  applied.”

It will be observed that on 11 November 1975 when Francois J gave judgment for the respondents herein, the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) was in force and he ought to have declined jurisdiction since it must have appeared to him that the real issue before him was a boundary dispute between two stools or communities. The 1979 Court of Appeal fell into the same error and this court is duty bound to set aside the said judgments. This court in setting aside the judgment of the 1979 Court of Appeal, committed no jurisdictional error. On the whole, the matter before the court was conclusively decided and I did not find any exceptional circumstances to warrant or justify a review. It is for this reason that I agreed to the dismissal of the motion.

KPEGAH JA. On 20 October 1992, this court dismissed an application by Togbe Gobo Darke XII and one other, for review of our judgment dated 30 March 1992. Reasons were then reserved. I now proceed to give reasons why my vote was cast for the dismissal of the said application for review. In the case of Fosuhene v Pomaa

 [1987-88] 2 GLR 105, Sowah CJ, expressing his views on the merits of an application for review said:

“The grounds given were: (a) exceptional circumstances; and (b) the interest of justice. 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, which in my view, served the interest of justice to the parties.”

These words not only adequately and appropriately express my own thought process, but also satisfactorily serve as a good guideline to a party who contemplates an application for review before this court upon losing a case on appeal. I do not intend to go into details as regards the antecedents of the application. I will state the facts only in so far as they are necessary for an appreciation of this ruling.

This has been a protracted litigation between the peoples of Tsito Awudome and the peoples of Peki. On 11 November 1975, Francois J, sitting at the High Court, Ho, gave judgment for the respondents. This was set aside in 1979 by the Court of Appeal which granted also the applicants’ counterclaim. When the respondents failed to reach the Supreme Court by way of an appeal, they brought an action in the High Court seeking a declaration that the judgment of Francois J and of the Court of Appeal were null and void for lack of jurisdiction. Omari-Sasu J, sitting at an Accra High Court, granted the respondents’ reliefs and set aside both judgments as having been given without jurisdiction. The applicants appealed to the Court of Appeal which, in a majority decision, affirmed the High Court decision setting aside the first couple of judgments between the parties. The applicants also attempted an appeal to the Supreme Court but this too, like that of the respondents, was ill-fated. Legal ingenuity has not been lacking in this case; the applicants brought before this court an application for an order of certiorari to quash the second couple of judgments, that is, the judgment of Omari-Sasu J and the Court of Appeal affirming same. This was the subject of our decision on 30 March 1992, which the applicants are asking us to review. Our judgment resulted in the setting aside of all two couples of judgments and the reference of the dispute to the Stool Lands Boundary Commissioner. The primary reason for approaching this court with an application for a review is contained in paragraph 3 of the affidavit of Togbe Darke as follows:

“We are dissatisfied with the said judgment and hereby apply for a review thereof.” (Emphasis mine.)

The grounds for the dissatisfaction which formed the basis for the application for review are: (i) The judgment of this court is self-contradictory and based on conflicting findings. (ii) This court committed a jurisdictional error when it purported to set aside the judgment of the Court of Appeal of 30 July 1979.

In their statement of case the applicants expatiated on their charge of inconsistency against the court as follows:

“On 30 March 1992 this court delivered its judgment. This judgment is in two parts, namely, (a) that the ruling of Omari-Sasu J and the judgment of the Court of Appeal dated 9 July 1990 be set aside; (b) that the judgment of Francois J and the Court of Appeal dated 19 July 1990 and the dispute between the parties referred to the Stool Boundary Commissioner.”

According to learned counsel for the applicants, the so-called contradiction in our judgement was occasioned by the ambivalent position taken in the matter by my learned and noble bother Amua-Sekyi JSC. I have read the said judgment over and over again and I find the criticism completely unjustified. Amua-Sekyi JSC cannot be said to have preserved the sanctity of the judgment of Francois J and that of the 1979 Court of Appeal only to turn round and set them aside. In his opinion read this morning, and which I had the privilege to read beforehand, my brother Amua-Sekyi JSC has been his own able advocate and I should virtually have nothing to add. He was very clear in his original judgment that the Court of Appeal was right in setting aside the judgment of Francois J for it was given without jurisdiction. But in so far as the said court proceeded to grant the counterclaim of the applicants in respect of a subject-matter over which it had no jurisdiction, its decision was null and void and ought to be set aside.

The fact of the matter, therefore is that the two separate judgments (the Francois J judgment and the 1979 Court of Appeal judgment on one side, and Omari-Sasu J’s judgment and the 1990 Court of Appeal judgment on the other) between the parties have all been set aside by this court in the judgment sought to be reversed through the review process. Our judgment further held that the dispute related to stool lands as defined in the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) and that the proper forum for ventilating such claim is before the Stool Lands Boundaries Commissioner. The appropriate order was accordingly made referring the matter to the said Commissioner.

This was what the justice of the case between the parties demanded and nothing else. I say so because the issue whether the dispute related to stool lands or individual lands, with the determination of the proper forum as an ancillary issue, had become crucial to the rights of the parties. There is no dearth of authority as to the circumstances under which this court would feel the compelling need to review its own solemn judgment. However, there is still some bewilderment as to the identification of situations or factors which can properly be cited to secure a review. By a Practice Direction (Supreme Court Judicial Cir No SCR/1441/67) dated 4 August 1988, it is stated: “The only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review.”

Admittedly, there is no indication as to what the special or exceptional circumstances should be, or what type of threat should be posed to the attainment of justice in a case before the court will permit a review of its judgment. Being a discretionary power, it has been left to the court itself to determine, as two cases are hardly ever fought on the same facts. There is, however, unanimity as to what a review procedure was not intended for. In Swaniker v Adotei Twi II [1966] GLR 151, SC the first holding says in part:

“A review was not intended to take the place of an appeal, and was not to be dealt with as if it were an appeal; therefore the mere fact that there was a good ground upon which the judgment would be set aside on appeal was not of itself a ground for granting review.”

It does however appear that there has been persistent infractions of the injunction contained in the above dictum in most applications for review. This realisation prompted my learned and noble brother Adade JSC to comment thus:

“It has not been enough to say , and to keep repeating, that a review is not an appeal. That has been said before, but its effect has not been appreciated.”

See Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598 at 609. He then suggested that this court has to do more to define the scope of the review jurisdiction, as distinct from its appellate jurisdiction. In the same case he made an effort at suggesting some criteria that he thought could, in the appropriate cases, be indicative of exceptional circumstances. These were:

(i) Matters discovered after judgment; these must be relevant, exceptional and capable of tending to show that if they had been discovered earlier, their effect would have influenced the decision.

(ii) Cases falling within the principle enunciated in Mosi v Bagyina [1963] 1 GLR 337 that is, where a judgment is void either because it is not warranted by any law or rule or procedure; 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.

(iii) The class of judgments which can legitimately be said to have been given per incuriam, because of failure to consider a statute or case law or fundamental principle of procedure and practice relevant to the decision, and which could have resulted in a different decision.

This categorisation is in my view, beneficial and offers a very useful guide through the maze even though the list cannot be intended to be exhaustive. It must therefore be emphasised that the categories of exceptional circumstances can never be closed. The example found in the reports are only instances. Speaking for myself, I would like to restate the position thus: the review jurisdiction is a special power to be called in aid in exceptional circumstances, and where justice, for which this court exists, will be sacrificed if the decision is not reviewed. The procedure is certainly not intended to call upon a court to consider and answer criticisms of its judgment; and if found to have some merit or be plausible, a reversal is granted under the guise of the exercise of a review jurisdiction. It has therefore been my practice to decline an application for a review if nothing fundamentally new, and which is capable of prompting a well-informed and reasonable judicial mind into reacting in defence of justice in the matter, has been brought to my attention.

There is no threat to the justice of the matter in our decision that the case be referred to the Stool Lands Boundaries Commissioner for adjudication, having decided that the dispute related to stool lands as defined in the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172). I say so not unaware that the applicants had at a certain stage of this protracted litigation contended that the dispute related to stool lands and that the courts had no jurisdiction. The right and fortunes of the parties have become bound up with this issue.

My Lords, I would like to conclude with some important words of caution by my brother Adade JSC in the Nartey case:

“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.”

The applicants have ignored these valuable words at a peril. The casualty, of course, should be the application itself. The arguments advanced were all designed to open the case for a rehearing on its merits. I will not allow the solemn decision of the highest court of the land to be pecked at on the mere ground of dissatisfaction with the said decision. This case must not be permitted to subvert, which it threatens is to, one of the most fundamental principles in our jurisprudence, that is, interest rei publicae ut sit finis litium.

My Lords, it was for these reasons that I cast my vote for the dismissal of the application for review.

BROBBEY JA. In the ruling of this court dated 20 October 1992, we dismissed the applicants’ motion for the review of an earlier ruling of the court delivered on 30 March 1992. I now proceed to give my