Practice and procedure – Time – Extension – Review Omission of Registrar to furnish copy of judgment to applicant promptly – Court may extend time for application – Supreme Court Rules 1970 (CI 13) r 66.

Practice and procedure – Review – Supreme Court – Exceptional circumstances – Error to be fundamental, basic inadvertent, leading to gross miscarriage of justice - Review not for re-argument of appeal.

In a preliminary objection to the appellant’s application for review of the judgment of the Supreme Court, the respondent contended that the application was incompetent because the statement of case was filed out of time; besides it did not disclose exceptional circumstances. It transpired that the registrar did not furnish the applicant with a copy of the judgment in sufficient time to enable him file the statement of case.

Held: (1) the court would in appropriate cases extend time for complying with the rules. The delay was caused by the registrar of this court in not furnishing counsel with a copy of the judgment is sufficient ground for the court to extend time and admit the statement of case filed by the applicant. Essilfie v Anafo IV [1992] 2 GLR 654, SC, Ojikutu v Odeh (1954) 14 WACA 640 referred to.

(2) The court would exercise its review jurisdiction under exceptional circumstances only. Those exceptional circumstances envisaged error that was fundamental, basic and inadvertent. Secondly the error, if uncorrected, should lead to a gross miscarriage of justice. The applicant was merely requesting the court to take another look at the evidence and review the decision in his favour. There was no suggestion on his part that the proposition of law advanced by the majority of their Lordships was wrong. There was nothing to commend the application for review as the applicant had only sought to re-hash the grounds argued by him in the appeal. Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC, Essilfie v Anafo IV [1992] 2 GLR 654, SC, Brogden v Metropolitan Railway Company (1877) 2 App Cas 666, HL, A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, CA, Nartey-Tokoli v Volta Aluminium Co Ltd (No 3) [1989-90] 2 GLR 513 referred to.

Cases referred to:

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

Amagazo v Kemevor  31 May 1990, CA.

Brogden v Metropolitan Railway Company (1877) 2 App Cas 666, HL.

Essilfie v Anafo IV [1992] 2 GLR 654, SC.

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

Nsuta v Mensa  [1961] GLR 232, SC.

Ojikutu v Odeh (1954) 14 WACA 640.

APPLICATION for review of the judgment of the Supreme Court.

E D Kom (with him Charles Hayibor and Anthony Norvor) for the applicant.

Nana Akufo-Addo (with him Joe Ghartey, Mrs Efua Chartey and Akoto Ampaw) for the respondent.

HAYFORN-BENJAMIN JSC. The applicant invokes the jurisdiction of this court to review its decision in the above-mentioned appeal delivered on the 23 June 1992. The respondent on 29 January 1993 filed a notice of intention to rely on a preliminary objection to the application, in which the respondent contended that the application for review was legally incompetent in that the applicant had not complied with the practice direction laid down in the case of Kumnipa II v Ayirebi [1987-88] 1 GLR 256. Consequently the application should be dismissed. The respondent contends further and in the alternative that if we come to the view that the application is “legally competent” then we are invited to disregard the applicant’s statement of case filed on 21 December 1992, as the same was not “warranted by the rules governing review, was filed out of time and in any case does not disclose any exceptional circumstances.” Counsel for the respondent was on strong ground. But in argument before us counsel for the applicant sought to explain away the circumstances, which had led to his non-compliance with the practice direction and applied for his non-compliance to be waived in terms of rule 66 of the rules of the Supreme Court (CI 13). Counsel for the applicant further accepted the blame on himself and referred us to the case of Ojikutu v Odeh (1954) 14 WACA 640. In counsel’s view his sins should not be visited on his client.

The submission of counsel for the respondent on this preliminary objection is not without authority. In Essilfie v Anafo IV [1992] 2 GLR, SC this court was invited to consider the effect of rule 66 of CI 13, which invests this court with power to extend time, on the relevant rules which dealt with the time within which any step in court had to be taken, in this particular case rule 13 of CI 13. This court decided (Amua-Sekyi dissenting) that in appropriate cases the court would extend time for complying with the rules. Each such application had to be considered on its own merits.

It seems to us that the delay allegedly caused by the registrar of this court in furnishing counsel with a copy of the judgment is sufficient ground for extending time. Applications to this court must not be treated lightly and counsel must have the essential material before preparing their case for presentation to us.  We will therefore extend time and admit the papers filed by the applicant.

There was however nothing to commend this application for review. The applicant has only sought to re-hash the grounds argued by him in the appeal. The applicant concludes his statement of case by listing four matters which he considers amount to exceptional circumstances warranting a review of the judgment. He states: “I humbly submit that the majority judgment ignored exhibits C, H and I and the total amount paid by the plaintiff to the defendant. The court therefore came to the wrong conclusion as to who should complete the demised premises. Also the court did not consider the cross-examination of the plaintiff and DW2 and section 177 of the Evidence Decree 1975. Their Lordships based their judgment on the evidence of Mr Peters, PW1 and allowed the counterclaim contrary to the principle stated in Nsuta v Mensa, [1961] GLR 232, SC and Amagazo v Kemevor 31 May 1990, CA; that the judgment must not be allowed to stand as it occasions injustice and miscarriage of justice.”

But upon a close examination it will be observed that all these matters are concerned with the evaluation of the evidence by their Lordships who formed the majority. Certainly these are stricto sensu, grounds of appeal. The applicant states in his statement of case that he “conceded at the Supreme Court that there was no meeting held with a solicitor as the letter demanded. The plaintiff said he accepted the offer, the defendant said the offer was not accepted.” The applicant’s statement continued by submitting that:

“The conduct of the parties after the letter exhibit B must be looked at to find out whether the offer was accepted or not as the letter exhibit B did not specify expressly the manner of acceptance.”

The applicant cites a passage from the opinion of Francois JSC that:

“It can hardly therefore be controverted that as at 12 February 1981, the Nima property had not changed hands¼This is a correct statement because an immovable property can only change hands upon a conveyance or delivery of title deeds... In any case it is most respectfully submitted that, if the property had changed

 hands the present action for specific performance would indeed be completely pointless, to say the least.”

The clear issue of law raised for determination in the appeal was whether on the evidence there had been acceptance of the offer or whether acceptance could be deduced from evidence of subsequent conduct of the parties. The majority took the view per Francois JSC that:

“No action can be brought against anyone on a partial acceptance of a proposal relative to the sale of realty. And no proceedings in specific performance can be had unless a contract has actually been concluded.”

The minority relied firmly on the English case of Brogden v Metropolitan Railway Company (1877) 2 App Cas 666 and Osei-Hwere JSC put it thus:

“It was stated in Brogden v Metropolitan Railway Company that circumstances in the conduct of two parties may establish a binding contract between them although (as happened in that case) the agreement reduced into writing as a draft had not been formally executed by either. Accordingly, it is not always safe, in construing a contract between two parties, for the court simply to look for the precise moment when an offer, for instance was accepted to determine the existence of the contract.”

The two propositions of law are correct and represent opposite sides of the same coin. The crucial question in this application therefore is whether the applicant has demonstrated such material as would bring him within the parameters set by this court for the assumption of its review jurisdiction.

The respondent in his statement of case has furnished us with an overview of this court’s decisions pertaining to the invocation of our review jurisdiction and correctly states conditions under which this court will exercise that jurisdiction. The exceptional circumstances envisaged in the exercise of this jurisdiction: “(i) must be fundamental, and the error must be basic and inadvertently committed; (ii) The uncorrected error should lead to a gross miscarriage of justice.”

In this application, the applicant is merely requesting us to take another look at the evidence and tilt the decision in his favour. There is no suggestion on his part that the proposition of law advanced by the majority of their Lordships is wrong. We see no merit in the application and the same is accordingly dismissed.

FRANCOIS JSC. I am also of the view that there is no merit in this application. I am of the further view that the applicant not having complied with the conditions precedent to a viable review, fails in limine.