Yaw and Others Vrs Dwamena and Others (H1/282/2005) [2005] GHACA 16 (01 March 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - ACCRA
CORAM - OWUSU, JA [PRESIDING]
ANIM, JA
ABBAN [MRS.]
H1/282/2005
1ST MARCH, 2007
1. OPANIN YAW NTOAH
3. MR. S.A. BOAHEN
4. ADDAE … PLAINTIFFS/APPELLANTS
5. KODJO MFANTE
V E R S U S
1. NANA DWAMENA AKENTEN II
2. NANA KWAME AMEYAW … DEFENDANTS/RESPONDENTS
3. NANA APPEAH DUMGYA II
4. KWAKU TI
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J U D G M E N T
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OWUSU, JA - This is an appeal against the ruling of His Lordship Frank Amoah J. sitting at the High Court, Wenchi which ruling was delivered on the 4th day of May, 2005 in an Ex-parte application for review of an order of the Circuit Court, delivered by His Honour Owusu Gyamfi, sitting at Fiapre on 3rd May 2005.
Following an application brought before the Circuit Court under Section 22(1) of the Criminal Procedure Code, 1960 Act 30, by Chief Superintendent of Police of Techiman District Headquarters, on the instructions of the Inspector-General of Police, the Circuit Court Judge ordered the Respondents to sign a bond to keep the peace. The Respondents, were also ordered to postpone the burial of a Chief for one month until the issue of whether the late chief died as Akyempinhene or as both Akyempimhene and Tuobodom chief has been resolved by the appropriate forum (Brong Ahafo Regional House of chiefs) to avoid or avert any possible Mayhem.
The brief facts leading to the police going to court for the order are that on 13/12/03, one Nana Soffour Yaw the Akyempimhene of Techiman died. For sometime before his death, Nana also styled himself as chief of Tuobodom. A faction of the Respondents however contended that he was not the Chief of Tuobodom. According to them, one Nana Amo Gyeabour II was the Chief of Tuobodom.
Upon the death of Nana Soffour Yaw II, attempts were made to bury him as Tuobodomhene. The Appellants resisted such attempts.
The police sensing danger, arraigned both factions before the Fiapre Circuit Court under Section 22(1) of the Criminal Procedure Code, of 1960 (Act 30) for them to sign a bond in order to keep the peace. The application was granted resulting in the order made by the circuit Court Judge.
Dissatisfied with that part of the order postponing the burial of the chief, the Respondents herein, did not appeal against it but rather filed an ex-parte application for review before the High Court Wenchi which by way of review, set aside the order postponing the burial for one month. Instead, the Respondents were restrained from either organizing the final funeral rites or installing a new chief immediately following the burial.
It is worthy of note that the Ex-parte application was filed by the Respondents themselves. The application, dated the 4th of May, was filed and moved on the same day.
The Appellants are before this court complaining bitterly against the ruling on the grounds that:
- “The learned Judge erred when he granted the Respondents application.
- “The recourse to review was wrong within the given circumstance and;
- “The said application was incompetent, null and void.”
Even though counsel argued grounds 1 and 3 separately, I will deal with them
together as the Judge erred in granting the application because same was incompetent and ought to have been dismissed.
Order 42 rule 1(1) of the High Court (Civil Procedure) Rules of 2004 (C.I. 47) under which the court sought to entertain the application states that –
“a person who is aggrieved
- by a Judgment or order from which an appeal is allowed but from which
no appeal has been preferred: or
- by a Judgment or order from which no appeal is allowed,
may upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made or an account or some mistake or error apparent on the face of the record, or for any other sufficient reasons, apply for a review of the judgment or order.”
The rule applies in civil matters and under laid down circumstances. It is not ordinarily resorted to.
The order in respect of which the review was sought was given in a criminal forum in the exercise of its criminal jurisdiction and the High court in the exercise of its civil jurisdiction could and should not have entertained the application. In the case of QUARTEY & OTHERS VRS. GENERAL SERVICES CO. LTD. {1996 – 97} SCGLR 398 the Supreme Court per Abban C.J. held that –
“The court would exercise its review jurisdiction being a special jurisdiction and not an appellate jurisdiction--------------------------------------------------------“I would not even hammer on the exceptional or laid down circumstances under which the High Court would properly be clothed with review jurisdiction as I do not find it necessary to do so under the present circumstances.
Unfortunately the learned Judge in the court below regrettably allowed himself to be led astray by the Respondents who I am not sure have any legal knowledge. He had determined the application without any reference to the rule under which same was brought. Even in the exercise of its proper review jurisdiction if he had looked at the rule, he would have found just cause to dismiss the application.
The application was made ex-parte in contravention of Order 42 rule 2(1) which requires that the applicant gives seven days notice to all parties to the action. The rule makes it mandatory and non-compliance of it renders the application incompetent.
Under rule 3(1), “where it appears to a Judge that there is not sufficient ground for a review, the Judge shall dismiss the application.
The order in respect of which the review was sought was that of a Circuit Court. A review is not an appeal and the Respondents, if dissatisfied, should have appealed to the High Court in the exercise of its Criminal Jurisdiction.
Rule 4 of Order 42 requires that even in the exercise of the High Court’s proper review jurisdiction, barring certain exigencies, the Judge who gave the Judgment or made the order sought to be reviewed, and no other Judge shall hear the application. The rule reads as follows:
“Where the Judge who gave the Judgment or made the order sought to be reviewed, continues to hold office at the time when the application for a review is presented, and is not precluded by absence or other cause for a period of three months following the application from considering the judgment or order to which the application relates, that Judge and no other Judge shall hear the application.
Amoah J. even in the proper circumstances, would not have jurisdiction to entertain the application. The exercise of power by him in dealing with the application was therefore one in futility as the whole proceedings is null and void for want of jurisdiction.
I agree with learned counsel for the appellants submission that the Judge fell into serious error when he entertained the application and granted same.
As I have already stated, the proper thing for the Respondents to have done if they were dissatisfied with the order of the circuit court, was to have appealed against it. Their grievance could not be remedied by a recourse to review, a civil process under C.I. 47. The recourse to review under the circumstances is therefore palpably wrong.
The appeal on the whole is well grounded and same is allowed. The whole proceedings before the High Court is declared null and void. The orders made thereunder are hereby set aside.
R.C. OWUSU
JUSTICE OF APPEAL
I agree. S.Y. ANIM
JUSTICE OF APPEAL
I also agree. H. ABBAN [MRS.]
JUSTICE OF APPEAL
COUNSEL - MR. OTU ESSEL FOR THE DEFENDANT/RESPONDENTS.
NANA OBIRI BOAHEN FOR THE PLAINTIFFS/APPELLANTS.
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