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RULING
JOYCE BAMFORD-ADDO, J.S.C.:
This is an application for the
Review of the Judgment of the
Supreme Court dated 9th May 2001
brought by Defendants/Applicants
under Rule particularly 54(a) of
the Supreme Court Rules 1996.
(C.I.16) which Rule provides
that:
"Rule 54. The court may review
any decision made or given by it
on any of the following grounds
(a) exceptional circumstances
which have resulted in
miscarriage of justice
(b) discovery of new and
important matter or evidence
which after the exercise of due
diligence, was not within the
applicants knowledge or could
not be produced by him at the
time when the decision was
given"
The Plaintiff/Respondent opposes
this application for Review on
the ground that the grounds
given for this application do
not satisfy the relevant test
namely exceptional circumstances
which have resulted in
miscarriage of justice" as
provided under Rule 54(a) C.I.16
The Supreme Court has discussed
what amounts to exceptional
circumstances leading to a
miscarriage of Justice in many
cases since 1987. The Practice
Direction (Reviews in the
Supreme Court) (1987-88) 2 GLR
598 provided that:
"The only ground for a review is
that the circumstances are
exceptional and that in the
interest of justice there should
be a review."
However in the 1992 Constitution
the power to review its
decisions was given to the
Supreme Court under Article
133(1) and the Supreme Court
Rules 1996 (C.I.16) was passed
to regulate the review
jurisdiction.
Article 133(1) of the 1992
Constitution says that:
"The Supreme Court may review
any decision made or given by it
on such terms and subject to
such conditions as may be
prescribed by rules of court"
The rules referred to in the
said Article is Supreme Court
Rules 1996 (C.I.16). The
applicant herein has come under
Rule 54(a) namely that
exceptional circumstances exist
in this case which has resulted
in miscarriage of Justice. On
this ground for review as I said
earlier, the Supreme Court has,
in many cases endeavoured to
define what is meant by
"exceptional circumstances
leading to a miscarriage of
Justice".
In the case of Nasali v. Addy 2
(1987 - 88) 2 GLR 286 at 288
Taylor JSC said:
" ... Therefore, whatever
factors the applicant relies on
must be such that the exercise
of our power of review becomes
extremely necessary to avert
irreparable harm to him.
A mere rearguing of his original
applicant would not suffice.
See also Fosuhene v. Pomaa (1987
- 88) 2 GLR P.105"
Also in the case of Agyekum v.
Asakum Engineering and
Construction Ltd. (1992) 2 GLR
635 wherein Francois J.S.C. said
at p.651
"The Supreme Court has expressed
the view many times before, that
the review jurisdiction does not
provide a platform for
rehearsing previous legal
positions, whatever new learning
and erudition are thrown into
the melting pot. The acid test
that remains as always, the
existence of exceptional
circumstances and the likelihood
of a miscarriage of justice that
would provoke the conscience to
look at the matter again. I
would consequently, for my part,
reject the invitation to
transverse known corridors
revisiting the pros and cons of
argument only to conclude that a
stance remains unswervingly
unshaken. I am also firmly
against the attempt to turn the
review jurisdiction into a
further avenue of appeal. We
have no constitutional powers to
do so."
I agree with the said learned
Judges in these specified cases.
The principles provided by them
still holds good today. In this
application the applicant have
submitted that
"this review application would
afford other panel members the
opportunity to consider whether
indeed a miscarriage of justice
has been occasioned in that
there was a fundamental error
committed in the examination of
the evidence and in the
consideration of the judgment
which the others concurred in."
Applicant then went on at length
to review the evidence in order
to show that there was a
fundamental error on the
Judgment under review on the
evidence which amount to
exceptional requiring a review.
He criticised the judgment of
the Supreme Court for relying on
certain evidence and not on
others in coming to its
decision. He submitted that
because an appeal is by way of
rehearing certain vital pieces
of evidence on record should
have been considered and
accepted by the Supreme Court,
and if that had been done, the
court would have come to only
conclusion, that the
co-defendants and not Defendants
were liable to pay the Plaintiff
the sum of money owed to
Plaintiff.
It is clear that the Applicant
was only rearguing the appeal
already heard but then the
review jurisdiction is not meant
as an appeal, and the invitation
to this Court to review the
evidence and to rehear the
appeal brought to the Supreme
Court and already decided there,
is wrong and misconceived, since
this court has no such
jurisdiction. Further no
exceptional grounds have been
shown to exist which calls for
our review jurisdiction and this
motion fails.
Consequently the application for
review is dismissed.
AMPIAH, J.S.C.:
Under Article 133(1) of the
Constitution, the Supreme Court,
"... may review any decision
made or given by it on such
grounds and subject to such
conditions as may be prescribed
by rules of court".
In pursuance of this power, the
Supreme Court under Rule 54 of
the Supreme Court Rules, 1996
(C.I. 16) has provided that,
"54. The court may review any
decision made or given by it on
any of the following grounds,
(a) exceptional circumstances
which have resulted in a
miscarriage of justice;
(b) discovery of new and
important matters or evidence
which after the exercise of due
diligence, was not within the
applicant's knowledge or could
not be produced by him at the
time when the decision was
given".
The applicants herein grounded
their application on
"exceptional circumstances,
which have resulted in a
miscarriage of justice". In
paragraph 12 of their affidavit
in support of this application,
they stated,
"12. That I am further advised
and verily believe same to be
true that this court would
exercise the special
jurisdiction of review only in
exceptional circumstances which
implies 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
resulted in a gross miscarriage
of justice, which is what myself
and 1st defendant company is
saying".
That fundamental and basic error
which according to the
applicants this court committed
in the course of considering its
judgment was:—
(i) Failure to consider the
role played by the
co-defendant's in the
transaction.
(ii) Failure to consider
whether the defendant passed on
the goods to co-defendants and
then to the GNTC.
(iii) Failure to consider
whether GNTC paid for the goods
to co-defendants.
They buttressed their contention
with their statement in
paragraph 14 of their affidavit
in support, thus,
"14. It is significant to note
that the co-defendants also
filed an appeal against the
decision of the Court of Appeal
and the ground of appeal is very
instructive. The ground is an
admission that co-defendants
knew the goods belonged to
plaintiff and therefore returned
part of the goods to plaintiff.
In effect they want the
plaintiff to account so that the
debt owed to plaintiff can be
ascertained. This aspect of the
matter was not considered by the
court in the course of the
judgment".
Certainly the co-defendants had
filed an appeal against the
Court of appeal's judgment of
24th February 1995. One of the
grounds of appeal, apart from
the general ground that the
'judgment is against the weight
of evidence' was that
"the trial learned Judge and the
Court of Appeal failed to make
findings of fact on the actual
amount which remained to be paid
and by whom ignoring salient
evidence on record that some
goods were returned to the
plaintiff".
Unfortunately, in our judgment
of 9th May, 2001 we were
disabled from seriously
considering this aspect of the
case since we found that on or
about 4th December, 1996 the
Court of Appeal had dismissed
the appeal by the plaintiff
against the co-defendants in the
High Court decision. This is
what we said,
"The hearing of this appeal took
three separate sittings on the
4th December 1996, 8th May, 1997
and finally on the 20th June,
1997. The proceedings of 4th
December, 1996 appear at pages
CA1, CA2 and CA3 of the record
of proceedings. Page CA1 begins
with the submissions of Mr.
Ayikoi-Otoo as follows:
'Reading from page 294 lines
19-26 and submit that the court
having found that the defendant
having passed title in the goods
to the co-defendant, it was not
open to him to find that the
same goods were conveyed by
co-defendant to the GNTC and
passed title to GNTC made
defendant jointly and severally
with co-defendant'".
Mr. Ayikoi-Otoo thereafter made
references to various passages
in the record of proceedings and
invited the court to allow the
appeal. At page CA2 learned
counsel for the plaintiff, Mr.
Dey is recorded as having said
at lines 1-3
"cannot defend the judgment
against the co-defendant. He
invites the court to allow the
appeal filed by the
co-defendant".
There after the court at lines 4
to 11 stated:
"By Court: The appeal by the
co-defendant is hereby allowed.
The judgment against the
co-defendant is hereby set
aside. The claim against the
co-defendant is hereby
dismissed".
Hesse Lamptey does not ask for
costs for co-defendant.
By Court: No order as to costs
in favour of the co-defendant".
The High Court in its decision
of 4th February, 1995 had found
both the defendants and
co-defendants jointly and
severally liable to the
plaintiffs. All the parties had
appealed against the decision to
the Court of Appeal, which gave
judgment against the
co-defendant and plaintiffs,
dismissing their appeals. The
defendants having been left off
the hook by this judgment did
not appeal. Neither did they
appeal against the Court of
Appeal's judgment of 4th
December, 1996 by which the
co-defendant's appeal was
allowed. Thus, it was wrong for
the same court to have given
judgment against the
co-defendant on 20th June 1997
on the same appeal. This court
therefore had no right to deal
with matters raised against the
Court of appeal's judgment by
the co-defendants since they
were not properly before the
Court. We accordingly allowed
the appeal by the plaintiffs
against the Court of Appeal's
decision: the defendants had not
appealed. This court cannot
therefore be faulted for failing
to resolve the issues raised by
the applicants in this review.
I do not consider the issues
raised herein therefore as
exceptional circumstances
warranting our review of the
decision we gave, though, on the
evidence it is clear that the
co-defendants are taking
advantage of the decision to
enrich themselves unjustly from
goods they admit receiving and
for whose payment they have not
fully settled. The defendants
are to advise themselves. I
agree with the president
therefore that the application
be dismissed.
A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT
W. A. AGUTUBA
JUSTICE OF THE SUPREME COURT
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Ayikoi Otoo for the
Applicant.
Mr. Stanley Amarteifio for the
Respondent. |
