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Review -
Review jurisdiction
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Exceptional
circumstances – Rule 54 (a) of
the Supreme Court Rules 1996 C.I
16
HEADNOTES
The genesis
of this review application takes
its roots from the Ruling
delivered by the ordinary bench
on 7th May 2019
wherein the court unanimously
held in part as follows:- “We
are of the view that the
application invoking our
supervisory jurisdiction has
been overtaken by events and the
matter is therefore moot, and
therefore struck out. The above
ruling was the response of the
court to an application at the
instance of the Applicant
herein, Tsatsu Tsikata who
sought an application of
Certiorari to quash the decision
of Her Ladyship Jennifer Dadzie
alleging that, the decision of
the High Court, had prevented
him from appearing as counsel in
a case pending before her. At
the hearing of that application
on the 7th May 2019,
the court requested Harold
Atuguba, learned counsel for the
Applicant to react to an
affidavit filed by the 1st
Respondent therein which to all
intents and purposes raised
issues of mootness among others.
This was to the point that the
parties being represented by
Atuguba and Associates in a suit
at the High Court had their
representation withdrawn.
The court after listening to
learned counsel for sometime
observed that his response did
not address the points of
substance and accordingly
rendered the ruling referred to
HELD
After
considering and evaluating the
contrasting positions of learned
counsel for the parties herein,
we are of the view that, a
review application such as the
instant one, is not available to
a party as of right simply
because the party disagrees with
the ordinary bench decision and
believes that he can demonstrate
that the decision of the
ordinary bench was wrong. It has
further been re-stated times
without number that a review
application is not an appeal. we
have not been convinced that
there exists exceptional
circumstances to warrant a
further consideration of the
application for review on the
merits.Under the circumstances,
we have no other option than to
dismiss this application. The
result arising from the ruling
of the ordinary bench on 7th
May 2019 in our view did not
breach the rules of natural
justice and had the expected
result at the end of the
submissions of learned counsel
for the parties. The review
application thus fails and is
accordingly dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules 1996 C.I 16
CASES
REFERRED TO IN JUDGMENT
Quartey v
Central Services Co. Ltd
[1996-97] SCGLR 398
Arthur (No.2)
v Arthur (No.2) [2013 – 2014]
SCGLR 569
Okudzeto
Ablakwa (No.3) and Another v
Attorney-General and
Obetsebi-Lamptey (No.3)
[20213-2014] I SCGLR 16
Okudzeto
Ablakwa (No.2) v
Attorney-General and Obetsebi
Lamptey (No.2) [2012] SCGLR 845,
Mechanical
Lloyd Assembly Plant Ltd. v
Nartey [1987-88] 2 GLR 598,
Afranie v
Quarcoo [1992] 2 GLR 561,
Internal
Revenue Service v Chapel Hill
Ltd. [2010] SCGLR 827
Mechanical
Lloyd Assembly Plant Ltd. v
Nartey [1987-88] 2 GLR 598,
Afranie v
Quarcoo [1992] 2 GLR 561,
Internal
Revenue Service v Chapel Hill
Ltd. [2010] SCGLR 827
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE JSC: -
COUNSEL
HAROLD
ATUGUBA FOR THE APPLICANT.
JOSPEPH
KWADWO KONADU FOR INTERESTED
PARTIES/RESPONDENTS
DOTSE JSC: -
The Supreme
Court, in the oft quoted locus
classicus case on the scope of
the review jurisdiction of this
court, held in the case of
Quartey v
Central Services Co. Ltd
[1996-97] SCGLR 398
as follows:-
“A review of
a judgment 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
applicant should satisfy the
court that there has been
some fundamental or basic error
which the court inadvertently
committed in the course of
considering its judgment, and
which fundamental error has
thereby resulted in a 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 had
been dismissed or use the
process to prevail upon the
court to have another or second
look at his case.” Emphasis
In a well
researched and written statement
of case filed by learned counsel
for the Applicant, Harold
Atuguba in support of this
review application, learned
counsel stated explicitly in the
concluding stages of the
statement of case as follows:
“Rule
54 (a) of the Supreme Court
Rules gives the Honourable
Court power to review its
decision in “exceptional
circumstances”. Emphasis
Again, the
Supreme Court in a bid to stem
the tide in the growing number
of review applications that were
flooding the apex court, came
out with what it called a
roadmap in the case of
Arthur (No.2) v Arthur (No.2)
[2013 – 2014] 569,
at pages 579 to 580, where the
court stated in clear terms as
follows:-
“We are
therefore constrained to send a
note of caution to all those who
apply for the
review
jurisdiction of this court
under Rule 54 (a) of the Supreme
Court Rules, 1996 (CI 16), to be
mindful of the following 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.
i.
In the first place, it must be
established that the review
application filed within time
limits specified in rule 55 of
C. I. 16, i.e. it shall be filed
at the Registry of the Supreme
Court not later than one month
from the date of the decision
sought to be reviewed;
ii.
That there exists exceptional
circumstances to warrant a
consideration of the
application;
iii.
That these exceptional
circumstances have led to some
fundamental or basic error in
the judgment of the ordinary
bench;
iv.
That these have resulted into
miscarriage of justice. (it
could be gross miscarriage or
miscarriage of justice
simpliciter).
v.
The review process should not be
turned into another avenue as a
further appeal against the
decision of the ordinary bench,
and
vi.
The review process should not be
used as a forum for unsuccessful
litigants to re-argue their
case” emphasis
What are the
peculiar facts of this case to
enable us determine whether the
instant application has met the
threshold indicated supra in the
cases referred to supra?
The genesis
of this review application takes
its roots from the Ruling
delivered by the ordinary bench
on 7th May 2019
wherein the court unanimously
held in part
as follows:-
“We are of
the view that the application
invoking our supervisory
jurisdiction has been overtaken
by events and the matter is
therefore moot, and therefore
struck out.” Emphasis
The above
ruling was the response of the
court to an application at the
instance of the Applicant
herein, Tsatsu Tsikata who
sought an application of
Certiorari to quash the decision
of Her Ladyship Jennifer Dadzie
alleging that, the decision of
the High Court, had prevented
him from appearing as counsel in
a case pending before her. At
the hearing of that application
on the 7th May 2019,
the court requested Harold
Atuguba, learned counsel for the
Applicant to react to an
affidavit filed by the 1st
Respondent therein which to all
intents and purposes raised
issues of mootness among others.
This was to the point that the
parties being represented by
Atuguba and Associates in a suit
at the High Court had their
representation withdrawn.
The court
after listening to learned
counsel for sometime observed
that his response did not
address the points of substance
and accordingly rendered the
ruling referred to supra.
However, in
support of the instant
application, the Applicant
herein deposed to the following
depositions in paragraphs 6, and
7 of his affidavit in support of
the instant review application.
It reads as follows:
6
“That I am advised by counsel
and hold same to be true that
the decision to strike out the
application could only have been
made as a result of a
fundamental misapprehension of
the application that was before
the Honourable Court, a
misapprehension which has
occasioned a grave injustice.”
7.
That their Lordships erroneously
assumed that the application
before them was intended to be
in respect of the role of the
Solicitors for the 1st
and 4th Defendants
which has been assumed by
different lawyers. That was not
what the application was about.”
Applicant
then proceeded in the subsequent
paragraphs to narrate what in
his view were the reasons behind
the application to quash the
decision of Her Ladyship
Jennifer Dadzie which to then
was premised on the fact that,
“Once there
was a named counsel on record,
the applicant therein could not
appear in the same case as a
lawyer when there was another
one on record.”
We have
considered in detail all the
processes put before us by the
Applicant and the 1st
and 4th Respondents
herein as well as the viva voce
arguments of their respective
counsel in respect of this
review application.
Fortunately,
three members of the ordinary
bench are still on this review
application and are well
informed of what really
transpired in court and thereby
informed the decision of the
ordinary bench on the 7th
of May 2019..
We have also
apprized ourselves with the
equally well researched and
written statement of case of the
1st and 4th
Respondents counsel Jospeh
Kwadwo Konadu.
After
considering and evaluating the
contrasting positions of learned
counsel for the parties herein,
we are of the view that, a
review application such as the
instant one, is not available to
a party as of right simply
because the party disagrees with
the ordinary bench decision and
believes that he can demonstrate
that the decision of the
ordinary bench was wrong. It has
further been re-stated times
without number that a review
application is not an appeal.
The Supreme
Court in the case of
Okudzeto Ablakwa (No.3) and
Another v Attorney-General and
Obetsebi-Lamptey (No.3)
[20213-2014] I SCGLR 16,
at 18, when faced with a
similar review application of a
6-3 majority decision reported
as
Okudzeto Ablakwa (No.2) v
Attorney-General and Obetsebi
Lamptey (No.2) [2012] SCGLR 845,
unanimously and authoritatively
clarified the scope of this
review jurisdiction as per our
respected brother Dr. Date-Bah
JSC as follows:-
“Being a
review application, the burden
on the applicants is to satisfy
this court that there are, in
the words of rule 54 (a) of the
Supreme Court Rules, 1996 (C. I.
16), in this case, “(a)
exceptional circumstances which
have resulted in a miscarriage
of justice”. This court has held
time and time again that a
review application is not an
appeal and should not be argued
as if it were. Accordingly,
before this court enters into
the full merits of the review
application, it should be
satisfied that the case falls
into one of the categories that
existing case law has held to
justify the exercise of the
review jurisdiction, or into a
new category justifying such
review, since the cases have
also held that the categories
justifying review are not
closed.” Emphasis
Before we can
proceed to consider the merits
of the instant application, we
have to ensure that the road map
and criteria, set out in the
cases referred to supra have
been met. Having considered the
authorities already referred to
supra and others like
Mechanical Lloyd Assembly Plant
Ltd. v Nartey [1987-88] 2 GLR
598, Afranie v Quarcoo [1992] 2
GLR 561, Internal Revenue
Service v Chapel Hill Ltd.
[2010] SCGLR 827, and
using these cases as a guide, it
is quite clear that the
Applicant herein has not made a
good case sufficient enough to
go past the criteria set out in
the cases listed supra.
That means,
we have
not been convinced that there
exists exceptional circumstances
to warrant a further
consideration of the application
for review on the merits.
Under the
circumstances, we have no other
option than to dismiss this
application. The result arising
from the ruling of the ordinary
bench on 7th May 2019
in our view did not breach the
rules of natural justice and had
the expected result at the end
of the submissions of learned
counsel for the parties.
The review
application thus fails and is
accordingly dismissed.
V. J.
M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
S. K.
MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
N. A.
AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
PROF. N.
A. KOTEY
(JUSTICE OF
THE SUPREME COURT)
M.
OWUSU (MS.)
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
HAROLD
ATUGUBA FOR THE APPLICANT.
JOSPEPH
KWADWO KONADU FOR INTERESTED
PARTIES/RESPONDENTS.
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