Ghana Legal Information Institute - Review of Judgment https://old.ghalii.org/tags/review-judgment en Standard Bank Offshore Trust Company Limited Vrs National Investment Bank Limited and Others (NO. J7/15/2017) [2018] GHASC 18 (14 March 2018); https://old.ghalii.org/gh/judgment/supreme-court/2018/18 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item odd"><a href="/tags/capacity-parties" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Capacity of Parties</a></div><div class="field-item even"><a href="/tags/review-judgment" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Review of Judgment</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This was an application for a review of the unanimous judgment of the ordinary bench of the Supreme Court which allowed an appeal filed by the respondents, in holding that failure to name foreign beneficiaries (per order 2 r. 4(2) of the Civil Procedure Rules) rendered the application void.</p> <p>The court determined whether the application had passed the threshold of a review application. They applied the rule that review jurisdiction is not meant to be resorted to as an emotional reaction to an unfavorable judgment.  In making the holding, the court considered the effect of noncompliance and held that the decision of the ordinary bench was not made through lack of care or misapplication of well-established case law. Accordingly, the court held that the circumstances of the case did not satisfy the requirements for review and dismissed the application. However, the dissent judgment faulted the decision to penalize parties on account of procedural blunders especially when the blunders can be easily cured by amendment.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p> </p> <p><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p><strong>IN THE SUPREME COURT</strong></p> <p><strong>ACCRA – A.D. 2018</strong></p> <p> </p> <p>                             <strong>CORAM:      AKUFFO (MS), CJ (PRESIDING)</strong></p> <p><strong>                         ATUGUBA, JSC</strong></p> <p><strong>                    ANSAH, JSC</strong></p> <p><strong>                                     ADINYIRA (MRS), JSC</strong></p> <p><strong>                      DOTSE, JSC</strong></p> <p><strong>                          YEBOAH, JSC</strong></p> <p><strong>                       BENIN, JSC </strong></p> <p><strong>                                                                                                                                                            REVIEW MOTION</strong></p> <p><strong>                                                                                                                                                         NO. J7/15/2017</strong></p> <p> </p> <p><strong>                                                                                                                                                                         14TH MARCH, 2018</strong><strong>         </strong></p> <p>STANDARD BANK OFFSHORE                   </p> <p>TRUST COMPANY LIMITED                               </p> <p> </p> <p>47- 49 LA MOTTE STREET                                </p> <p>ST. HELIER, JERSEY</p> <p>CHANNEL ISLANDS JE4 4X4</p> <p> </p> <p>(SUING ON BEHALF OF CERTAIN</p> <p>INVESTORS IN PROMISSORY NOTES</p> <ol> <li>SYPHYNX CAPITAL MARKETS PCC INVESTORS &amp;</li> <li>TRICON TRADE MANAGEMENT LIMITED</li> </ol> <p>SUBSTITUTED BY                                           </p> <p> </p> <p>DOMINION CORPORATE TRUSTEES</p> <p>LIMITED                          ………       PLAINTIFF/RESPONDENT/RESPONDENT/APPLICANT</p> <p> </p> <p>ESPLANADE, ST HELIER</p> <p>JERSEY JEI OBD       </p> <p> </p> <p> </p> <p>VRS</p> <p> </p> <p>1.       NATIONAL INVESTMENT BANK   </p> <p>          LIMITED             ………        1ST DEFENDANT/APPELLANT/APPELLANT/RESPONDENT</p> <p> </p> <p>          37 KWAME NKRUMAH AVENUE                          </p> <p>                                                                            </p> <p>                                                                  </p> <p>2.       ELAND INTERNATIONAL GHANA    </p> <p>          LIMITED                              ……...           2ND DEFENDANT                                           </p> <p>          39/40 SOULA LOOP</p> <p>          NORTH LABONE (SHC), ACCRA</p> <p> </p> <p>3.       DANIEL CHARLES GYIMAH             -     3RD DEFENDANT</p> <p> </p> <p>          ACCRA                                                                             </p> <p>­­­­­­­­­­­­­­­­         </p> <p><strong>RULING</strong></p> <p> </p> <p><strong>DOTSE, JSC:-</strong></p> <p>This is a Ruling premised upon an application at the instance of the Plaintiffs/Respondents/Respondents/Applicants, hereafter referred to as the Applicants praying for a review of the unanimous judgment of the ordinary bench of this Court delivered on the 21st day of June, 2017 which allowed an appeal filed by the 1st Defendants/Appellants/Appellants/Respondents hereafter referred to as the Respondents.</p> <p> </p> <p>The application for review was supported by a 52 paragraphed affidavit, sworn to by Mr. Kwame Pianim, who described himself as the legal representative of the Applicants herein.</p> <p>The Respondents herein vehemently opposed this application for review and in this respect a forty paragraphed affidavit in opposition was sworn to by Robertson Kpatsa Esq., who described himself as Head of Legal Department of the Respondent Bank.</p> <p><strong>GROUNDS OF THE REVIEW APPLICATION</strong></p> <p>This application for review has been brought on the following grounds:</p> <p> </p> <p>i.        The Judgment of the ordinary bench of the Supreme Court delivered on 21st June, 2017 was given per incuriam relevant case law and statute law.</p> <p> </p> <p>ii.       The ordinary bench of the Supreme Court misapplied the facts and the ratio decidendi in the case of <strong><em>Naos Holdings v Ghana Commercial Bank [2005-2006] SCGLR 407</em></strong> and wrongfully declined to exercise their power to amend the Applicant’s writ, thereby occasioning a gross miscarriage of justice; and</p> <p>iii.      The demands of justice make the exercise of the court’s review jurisdiction extremely necessary to avoid irremediable harm to the Applicant.</p> <p> </p> <p> </p> <p> </p> <p><strong>ARGUMENTS OF COUNSEL</strong></p> <p>Even though learned counsel for the parties have all relied on their affidavits and statements of case filed, they were all given some time to expatiate on these processes and grounds  by oral submissions in court as follows:-</p> <p><strong>BY COUNSEL FOR APPLICANTS</strong></p> <p>Learned counsel for the Applicants, Nene Amegatcher in his submission argued as follows:-</p> <p>1.       That, the ordinary bench of this Court in it’s judgment held that the Applicant, having failed to name the foreign beneficiaries and their resident addresses on behalf of whom the action had been mounted were in breach of Order 2, r. 4 (2) of the High Court, (Civil Procedure) Rules, 2004 (C.I. 47) and therefore lacked capacity to even commence the action.</p> <p>Learned counsel however argued that, under Order 4 r 13 of C. I. 47 (already referred to supra), the Applicants were entitled to sue as <em>“a trustee”</em> without the need to join the beneficiaries of the trust or estate and accordingly, there was no need to also endorse the names of and addresses of such persons.</p> <p>Learned counsel also referred to the Court, a long line of cases decided by this court in respect of which this court applied order 81 rules (1) and (2) of C.I. 47 to rectify non compliance with the rules of court.</p> <p>See cases of <strong><em>Hydrafoam Estates (Gh) Limited v Owusu (per Lawful Attorney) Okine and others [2013-2014] 2 SCGLR 1117 and Ghana Ports and Harbours Authority v Issoufou [1991] 1 GLR 500</em></strong>, just to mention a few.</p> <p>In further argument, learned counsel for the Applicants contended that, this Review bench should apply Order 81 r (1) and (2) and rectify the non compliance in order to achieve substantial justice in this case.</p> <p>It was the contention of learned counsel that, not having raised this issue of capacity in the High Court and the Court of Appeal, it was wrong for the Respondents to have raised this issue of capacity in the Supreme Court to which they did not have the opportunity to really respond.</p> <p>In this respect, learned counsel argued that, in the capital market it is difficult to disclose all the beneficiaries who may be about 500, 500,000 or 1,000,000 and even more. It is because of this difficulty that normally Trustees are appointed to mount such cases as is provided under Order 4 r. 13 of C.I. 47.</p> <p>Learned counsel contended further that, the issues of non compliance and lack of capacity are two different matters that deserve separate and distinct considerations. In this respect, learned counsel concluded this aspect of his submissions that, on the basis of the maxim <em>“generalia specialibus non derogat” </em>Order 2 r. 4 (2) is incompatible with Order 4 r. 13 (1) which allows Trustees to dispense with the endorsement of the resident status and addresses of the persons on behalf of whom the trustee has sued.</p> <p>          It is the view of learned counsel that order 4 r. 13 which is a specific provision dealing with beneficial interest in trust property or an estate, takes precedence over order 2 r. 4  (2) which is a more general provision dealing with plaintiffs who sue in a representative capacity.</p> <p>2.       In respect of arguments on the second ground of this review application, learned counsel argued that the ordinary bench relied very heavily on this court’s decision in the case of <strong>Naos Holdings Inc. v Ghana Commercial Bank [2005-2006] SCGLR 407</strong> which according to the Applicants is distinguishable from the instant review application.</p> <p>Learned counsel argued that, the ordinary bench should have applied Order 81 of C. I. 47 as was used by the Supreme Court in the case of <strong><em>Owusu Domena v Amoah [2015-2016] 1 SCGLR 790.</em></strong></p> <p>3.       Finally, in respect of the third ground of this review application, learned counsel argued that this review bench must ensure that substantial justice is seen to be done. This is because if the ordinary bench decision is allowed to stand, it will amount to substantial miscarriage of justice as the cause of action arose in 2009 and the Applicants would be deemed to be statute barred.</p> <p>It was further contended that, the amount involved is huge, in excess of USD60 million and still counting. Learned counsel therefore prayed the Court to grant the review application.</p> <p><strong>BY COUNSEL FOR RESPONDENTS</strong></p> <p><strong>COMPETENCE OF THE REVIEW APPLICATION</strong></p> <p>Learned counsel for the Respondents, Benson Nutsukpui argued that, the application has not passed the threshold of a review application and therefore urged the court not to consider the merits of the application. This is because all the matters raised by the Applicants for the review of the decision of the ordinary bench had been exhaustively dealt with by the judgment of the court.</p> <p>In that respect, learned counsel for the Respondent argued that the instant application is nothing more than the Applicants attempting a second bite of the cherry which is tantamount to unsuccessful litigants turning this review jurisdiction into a forum to re-argue their case.</p> <p>Learned counsel also argued that no exceptional circumstances have been shown to exist in this case and the reveiw application must therefore be dismissed. Counsel referred to the unanimous decision of this court in the case of <strong><em>Okudzeto Ablakwa (No.3) and Another v Attorney-General &amp; Obetsebi Lamptey (No.3) [2013-2014] 1 SCGLR 16.</em></strong></p> <p>On the merits of the case, the arguments of substance of learned counsel for the Respondents will briefly be summed up thus:-</p> <p>1.       Counsel argued that there is no contradiction between Order 4 rule 13 (1) and Order 2 rule 4 (2) for the maxim <em>“generalia specialibus non derogat”</em> to apply in the first place as it does not arise at all. According to learned counsel, order 4 r 13 (1) is rather the general provision referring to Trustees whilst order 2 r 4 (2) makes specific reference which is applicable in terms to Trustees who sue on behalf of persons not resident in the jurisdiction. Learned counsel contended that, non compliance with requirements of Order 2 r. 4 (2) cannot therefore be waived.</p> <p>2.       Secondly, learned Counsel for Respondents argued that, the decision of this court in the NAOS case actually turned on the conclusion of the court that the writ was void for failure to state the residence of the Plaintiff and that the ordinary bench did not misapply the facts and ratio decidendi in the Naos case.</p> <p> </p> <p>3.       Finally, learned counsel for the Respondents argued that the decision of the ordinary bench has not occasioned any miscarriage of justice. Counsel also contended that the relationships between the investors and Sphynx Capital Markets PCC and Iroko Securities are not governed by Ghanaian Law and the Ghana Statute of Limitations is irrelevant to the determination of a cause of action under English law. Counsel therefore concluded that any bonafide holder for value of the promissory notes issued by Eland International Ghana Limited has always had the opportunity to institute an action on its own and not dependent on the Plaintiff’s action.</p> <p>Responding to the arguments that the arguments on order 2 r. 4 (2) was raised in this court for the first time, learned counsel stated that the Applicants could have called in aid Rule 76 of the Supreme Court Rules, C. I. 16 which allows this court under some conditions e.g. interest of justice and the special circumstances of the case to permit the adduction of evidence in this court. That not having been done, learned counsel prayed that the application for review lacks substance and must be dismissed.</p> <p><strong>COMPETENCE OF THIS REVIEW APPLICATION</strong></p> <p>In the case of <strong><em>Arthur (No.2) v Arthur (No.2) [2013-2014] 1 SCGLR 569 at 579 – 580</em></strong>, this court in a unanimous decision in a review application, after evaluating the scope of review applications generally pursuant to Rules 54 and 55 of the Supreme Court Rules, 1996 C. I. 16, and considering the effect and application of the following cases, laid down a road map that must be complied with to ensure a successful review application.</p> <p>Some of the cases referred to were,</p> <p><strong><em>i.        Mechanical Lloyd Assembly Plant Limited v Nartey [1987-88] 2 GLR 598 at 664</em></strong></p> <p><strong><em>ii.       Quartey v Central Services Co. Limited [1996-97] SCGLR 398</em></strong></p> <p><strong><em>iii.      Bisi v Kwayie [1987-88] 2 GLR 295, SC</em></strong></p> <p><strong><em>iv.      Koglex (GH) Limited v Attieh [2001-2002] SCGLR 947</em></strong></p> <p><strong><em>v.       Internal Revenue Service v Chapel Hill Limited [2010] SCGLR 827 at 850, especially at 852 – 853, just to mention a few.</em></strong></p> <p>This is what the court laid down in the Arthur (No.2) v Arthur (No.2) case supra.</p> <ul> <li><em>We are therefore constrained to send a note of caution to all those who apply for the review jurisdiction of this court in respect of rule 54 (a) of C. I. 16 to be mindful of the following which 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.</em></li> </ul> <p> </p> <ul> <li><em>In the first place, it must be established that the review application was filed within the time lines specified in rule 55 of C. I. 16.</em></li> </ul> <p> </p> <ul> <li><strong><em>That there exists exceptional circumstances to warrant a consideration of the application.</em></strong></li> <li><strong><em>That these exceptional circumstances have led to some fundamental or basic error in the judgment of the ordinary bench.</em></strong></li> <li><strong><em>That these have resulted into miscarriage of justice (it could be gross miscarriage or miscarriage of justice simpliciter).</em></strong></li> </ul> <p> </p> <ul> <li><strong><em>The review process should not be turned into another avenue as a further appeal against the decision of the ordinary bench.</em></strong></li> <li><strong><em>The review process should not be used as a forum for unsuccessful litigants to re-argue their case</em></strong></li> </ul> <p> </p> <p><strong><em>It is only when the above conditions have been met to the satisfaction of the Court that the review panel should seriously consider the merits of the application.” Emphasis </em></strong></p> <p>1.       There is unanimity that the decision of the ordinary bench was rendered on 21st June 2017. There is also no doubt that this review application was filed in the Registry of this Court on 20th July 2017, thereby complying with Rule 55 of the Supreme Court Rules, C. I. 16 which provides that an application for review shall be filed in the Registry of the court not later than one month from the date of the decision sought to be reviewed. The first requirement in the road map in the Arthur (No.2) case supra has therefore been complied with. We will deal with the requirements in (ii) to (iv) set out in <strong><em>Arthur (No.2)</em></strong> supra together as a common principle.</p> <p>2.       In order to adequately deal with the resolution of the above requirements and others, we have to turn to the judgment of the ordinary bench for guidance. Our respected brother, Benin JSC, through whom the entire ordinary bench spoke with unanimity considered the appeal on the basis of what was described as a <strong><em>“technical but profound legal objection to the entire proceedings on ground on non compliance with the provisions of order 2 Rule 4 (2) of the High Court (Civil Procedure) Rules, 2004 C. I. 47 and urged the court to dismiss the action. </em></strong><em>Indeed they were challenging the capacity of both the original and the substituted Plaintiff, per paragraph 4.0 of the Statement of case.” Emphasis</em></p> <p>The ordinary bench then dealt at length with the said order 2 Rule 4(2) of C. I. 47. It was in the course of their analysis of the said rule and it’s application that the decision of this court per Sohpia Akuffo JSC (as she then was) in the case of <strong><em>NAOS Holding PSC v Ghana Commercial Bank [2005-2006] SCGLR 407 </em></strong>was relied upon. The court then proceeded to state the Respondent’s herein, therein Appellants arguments in respect of this NAOS case as being on all fours with the instant case. The Court then stated thus:-</p> <p>          <em>“That case”</em> a reference to the NAOS case, “like the instant, involved the issuance of promissory notes which has been guaranteed by the defendant bank. <em>“The Plaintiff sued in its capacity as the holder in due course of the promissory notes. The defendant entered conditional appearance and applied to have the writ dismissed on this relevant ground that the existence of the Plaintiff as a foreign entity was not disclosed and so too was its address not provided in the endorsement. This court affirmed the decision of the courts below that had upheld the application to dismiss the writ.”</em></p> <p>The ordinary bench then proceeded to set out the arguments of the Appellants therein, herein Respondents which are as follows:-</p> <p>1.       That the writ of the Applicants herein, therein Respondents did not disclose the fact that the Plaintiff is suing on behalf of foreign based persons.</p> <p>ii.       Secondly, that the foreign residential address of the investors or companies the Plaintiff represents has not been disclosed on the writ.</p> <p>iii.      Finally, that the persons on whose behalf the Plaintiff issued the writ were not disclosed or identified with specificity.”</p> <p>The court then proceeded with diligence by setting out in detail the various metamorphosis that the Plaintiff’s (Applicants herein) writ had undergone since the issuance of the writ.</p> <p>The Applicant’s writ commenced with the description of the Plaintiffs as <strong><em>suing on behalf of certain Investors. </em></strong>The certain investors were not disclosed, but an amendment of the writ which was granted by the High Court on 21st June 2010 led to the amendment which introduced the expression <strong><em>“on behalf of certain investors in promissory notes”</em></strong> which <strong><em>introduced Sphynx Capital markets PCC Investors and also Tricon Trade Management Limited as the investors  on whose behalf the writ was issued by the Plaintiff.”</em></strong></p> <p>The ordinary bench proceeded to analyse further the amended pleadings which gave a different picture altogether. For example, paragraph 13 of the amended statement of claim reads thus:</p> <p><em>“On the 23rd day of May 2007, <strong>Edland International Ghana Limited, through Iroko Securities Limited of London, United Kingdom discounted the said promissory notes to investors of Sphynx Capital Market PCC,  a Mauritian incorporated entity and others” emphasis </strong></em></p> <p>What this means is that, Sphynx are not the Investors per se and that there are others besides, Sphynx. The ordinary bench proceeded further to introduce another dimension in paragraph 18 of the Statement of Claim. The Applicants herein, therein Respondents argued in response to the said analysis and claims of the Respondents herein that the Writ was in breach of Order 2 r. 4 (2) of C. I. 47 as follows. This is how the ordinary bench captured these arguments.</p> <p><em>“In response to the issue that they did not state the address of Syhynx and Tricon on the writ, the Respondent counsel in paragraph 24 of their statement of case stated that the address of Sphynx was to be found in exhibit C which was tendered at the trial. Yet they concede that the address of Tricon was not disclosed anywhere. But they stated that <strong>“for purposes of serving court processes SBOTCJ and it’s replacement, Dominion Corporate Trustees Limited were always available.</strong> This point can quickly be disposed of in the sense that the rule does not require the address for service of the plaintiff; <strong>what is required is rather the address of the foreigner on whose behalf the Plaintiff has sued. </strong>And there are good reasons why this requirement is in place.” Emphasis </em></p> <p>Throughout this review hearing the Applicants have been re-arguing the same points they made before the ordinary bench contrary to the settled practice of this court.</p> <p>The ordinary bench then considered the other arguments of the Applicants herein, therein Respondents that the said defect in the writ can be cured by the court and relied on some decisions of this court, notably, <strong><em>Opoku (No. 2) v Axes Co. Ltd (No.2) [2012] SCGLR 1214 </em></strong>and the case of <strong><em>Nana Yaw Owusu &amp; Others v Hydrafoam Estates Limited</em></strong> referred to supra. See also the cases of <strong><em>Republic v High Court, Ex-parte Allgate Co. Limited (Amalgamated Bank Ltd- Interested  Party) [2007-2008] SCGLR 1041, Halle &amp; Sons v Bank of Ghana &amp; Anr [2011] 1 SCGLR 378 at 384 </em></strong><em>and finally<strong> Obeng v Assemblies of God, Church Ghana [2010] SCGLR 300 at 324, just to mention a few.</strong></em></p> <p>It must be noted that, we have taken pains to refer to some of the cases referred to and relied upon by the Applicants to illustrate in this ruling that the ordinary bench indeed considered in detail all the arguments made by the Applicants in response to the incisive arguments of the Respondents before the ordinary bench. We note also that the ordinary bench considered the possibility of allowing the Applicants to amend the writ to supply the address of SPHYNX and TRICON. <strong>The court however declined that option because the rule is that, the identity of these entities as well as their addresses must be in place before the issuance of the writ of summons</strong>. They concluded that the writ cannot be amended after it had been issued to comply with requirements.</p> <p>It is interesting to observe and note that the ordinary bench was very emphatic on the scope of the rule in the NAOS and the other cases as well. On the NAOS case, the court was emphatic as follows:</p> <p><strong><em>“In the NAOS case, the argument that the Plaintiff’s address had been disclosed in the Power of Attorney did not find favour with the court. The authority of NAOS Holding is clear that if the writ is issued without satisfying the requirements imposed by the rule, it is void. The court cannot grant an amendment to cure that which is void.” Emphasis </em></strong></p> <p>The court also discussed all the cases relied upon, and either distinguished it’s application or clearly stated its non applicability to the principles of law involved. This court has been very consistent in its desire in not turning our review jurisdiction into a forum for unsuccessful litigants embarking upon an appeal.</p> <p>Similarly, this court seriously frowns upon litigants who fail to find favour with the exposition of the law by the ordinary bench in forcing to have their way by embarking upon review as in this case.</p> <p>Considering the road map set out in Arthur (No. 2) supra, and taking into consideration our detailed analysis of the judgment of the ordinary bench we want to reiterate for the purposes of emphasis the dictum of Adade JSC (of blessed memory) in the case of <strong><em>Mechanical Lloyd Assembly Plant Ltd. v Nartey,</em></strong> (supra)</p> <p><em>“The review jurisdiction is not intended as a try on by a party losing an appeal; <strong>neither is it meant to be resorted to as an emotional reaction to an unfavourable judgment</strong>”</em> emphasis</p> <p>The ordinary bench took pains to address all the procedural issues that arose from it’s application of Order 2 r 4 (2) and Order 4 r. 13 and applied the rules correctly in our view. It is pointless to re-argue the same points here. By the combined import of all the requirements stated in (Arthur No. 2) supra, and other principles for review, this type of practice in turning reviews into appeals etc. is not allowed, and is indeed frowned upon by the practice of this court.</p> <p>Before we conclude this matter, we wish to refer to the unanimous decision of this court in <strong>Okudzeto Ablakwa (No.3) and Another v Attorney-General &amp; Obetsebi Lamptey (No. 3) </strong>supra, where the court held as follows:-</p> <p><strong>“Indeed, the applicants based their case for review primarily on inviting this Court to depart from its previous decision in <em>Nii Kpobi Tettey Tsuru III (No.2) case.  </em>In our view, a review application will usually not be the right context in which to exercise the power of the Supreme Court to depart from its own previous decision.  This is so particularly when the applicant in question has not previously invited the Court, during the argument before it prior to the judgment sought to be reviewed, to depart from its earlier binding decision.  In short, in our considered view, the applicants have not made a sufficient case for this court to enter into a full review of this case on its merits.  This is because they have not established an essential element in the legal concept of “exceptional circumstances which have resulted in miscarriage of justice” as interpreted in the case law.  That essential element is proof of a fundamental error of law by the Supreme Court. Rule 54 of the Supreme Court Rules, 1996 (CI 16) requires reliance on either exceptional circumstances or discovery of new and important matter or evidence.”  Emphasis </strong></p> <p>From the ratio of the decided cases of this court on review, it is immaterial if the applicant for a review considers the decision of the ordinary court to be wrong in law or has an emotional reaction to it, as in this case the magnitude of the amounts involved or the shutting of the door to Applicants because of effluxion of time in instituting a fresh action. These are not factors that a review bench normally takes into consideration save exceptional circumstances or failure to prove fundamental error.</p> <p><strong>CONCLUSION</strong></p> <p>Having considered the entirety of the arguments made by the Applicants for a review of the decision of the ordinary bench dated 21st June 2017 and considering all the processes filed in respect of this review application, we conclude our decision as follows:-</p> <p>1.       The judgment of the ordinary bench of even date was not given per incuriam relevant case law and statute. For purposes of emphasis we reiterate the position that failure to comply with the pre-requisites for the issuance of a writ under order 2 r. 4 (2) renders the writ void and it cannot be amended or waived. Order 4 r. 13 cannot be used to give validity to such a rule of mandatory practice. The maxim <em>“generalia specialibus non derogat”</em> does not even arise.</p> <p>2.       The ordinary bench as has been explained supra did not misapply the facts and the ratio in the NAOS decision.</p> <p>3.       The circumstances of this case does not merit the consideration and grant of ground three supra.</p> <p>For the above reasons, the application for review of the decision of the ordinary bench of this court dated 21st June 2017 fails and is accordingly dismissed.</p> <p> </p> <p><strong>        J. V. M. DOTSE</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>AKUFFO (MS), CJ:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Dotse, JSC.</p> <p> </p> <p> </p> <p><strong>        S. A. B. AKUFFO (MS)</strong></p> <p><strong>(CHIEF JUSTICE)</strong></p> <p> </p> <p><strong>ANSAH, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Dotse, JSC.</p> <p> </p> <p> </p> <p><strong>               J. ANSAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>ADINYIRA (MRS), JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Dotse, JSC.</p> <p> </p> <p> </p> <p><strong>         S. O. A.  ADINYIRA (MRS)</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>YEBOAH, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Dotse, JSC.</p> <p> </p> <p> </p> <p><strong>                 ANIN YEBOAH</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong>BENIN, JSC:-</strong></p> <p>I agree with the conclusion and reasoning of my brother Dotse, JSC.</p> <p> </p> <p> </p> <p><strong>                  A. A. BENIN </strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>ATUGUBA, JSC:-</strong></p> <p>I have had the advantage of reading beforehand the Ruling of my industrious and able brother Dotse JSC.</p> <p>After considering this matter in the round I am reluctantly driven to concur in the dismissal of this Review application.</p> <p> </p> <p>I was at the brink of preferring cautious cowardice to perilous certainty with regard to the decision of this matter when I felt compelled to retreat therefrom.</p> <p>It is trite learning that the Legislature knows the law and legislates with the existing law in mind.  That being so the decision of the ordinary bench in this case in holding the writ in this case void for  non disclosure of the  addresses of the foreign persons on whose behalf the applicant sued is, with the greatest respect, difficult to support.  There has been a long settled Judicial attitude in favour of saving actions and other processes from perdition on account of procedural blunders.</p> <p> </p> <p>With Rules in <em>pari materia</em> with the High Court (Civil Procedure) Rules, 2004 (C.I.47) the consistent path of the courts has been exemplified by principles to the effect, as stated by Mensah Boison J (as he then was) in <em>Republic v Ga Traditional Council and Another; Ex parte Damanley </em>(1980) GLR 609 at 622 that “<em>The courts have always been reluctant to penalize parties for their errors, especially procedural errors, unless they result in injustice to the other party</em>.  In <em>Republic v. Asokore Traditional Council; Ex parte Tiwaa</em> [1976] 2 GLR 231, C.A. the court, faced with a similar situation affirmed that principle.  At page 238 of the judgment the court relied on a passage in <em>Cropper v. Smith</em> (1884) 26 Ch.D. 700 at p. 710 by Bowen L.J. which I respectfully, adopt:</p> <p>“it is well established principle that <em>the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights</em> . . I know of <em>no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party</em>.”</p> <p> </p> <p>In the decision of the ordinary bench emphasis is placed on the fact that the requirements breached in these proceedings precede the filing of a writ. </p> <p>However one would have thought that all prerequisites to the issue of a writ are matters that precede the filing or issue of the writ.  Even with such prerequisites non compliance with them has not been held to be fatal.  Thus in <em>Opata v. Akussie</em> (1979)GLR 262 Taylor J (as he then was), was confronted with the stark and compelling prerequisites of O.16, r.19 of the then High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as follows:</p> <p>“<em>Before the name of any person shall be used in any action as next friend of any infant </em>. . . such person shall sign a written authority to the solicitor for that purpose, <em>and the authority shall be filed in the Registry of the Court in which the cause or matter is proceeding</em>.”</p> <p> </p> <p>This provision was clearly breached.  But as held in the headnote of that decision “under L.N. 140A, Order 16, r.19 the concern of the court where an action was brought on behalf of an infant plaintiff, was to have an adult able and willing to exercise control of the proceedings on behalf of the infant and if necessary to give security for the costs of the defendant.  The status and powers of a next friend made it clear that his consent to <em>the use of his name was not merely a technical requirement</em> and a solicitor was under <em>a duty before he commenced an action to obtain that consent</em> and take instructions from the next friend and not the infant.  <em>Where, as in the instant case, that consent had not been obtained, the court to jealously safeguard the infant’s interest, should have recourse to Order 70, r.1 and should adjourn to enable the written consent to be filed</em>.” (e.s)</p> <p> </p> <p>Similarly in <em>Seyire v Amemana</em> (1971) 2 GLR 32 C.A at 46-47 Azu Crabbe J.A (Amissah and Anin JJ.A concurring) said:</p> <p>“In <em>MacFoy v United Africa Co., Ltd. </em>[1962] A.C. 152, P.C., the delivery of pleadings in the long vacation <em>without the leave of the court or judge, as was required under the relevant  rule of court, was held to be an irregularity only</em>, and <em>not a nullity</em>, and it was therefore a matter for the discretion of the court whether it should be set aside or not.</p> <p>In <em>Cooper v. Cooper [1964] </em>1 W.L.R. 1323, it was held that <em>the failure to obtain the leave of a judge as required by rule 3(2) of the Matrimonial Causes Rules, 1957, resulted in the filing of the petition being an irregularity which the court had jurisdiction to set aside, but not a nullity which was incurable.</em>  In that case <em>the court granted retrospectively that leave which should have been obtained when the petition was filed so that evidence in support of the petition could be heard</em>.</p> <p>It seems clear, therefore, that <em>in this case failure to obtain the direction of a judge as to the mode of giving the security for costs does not automatically make the payment through the bank a nullity</em>.  It is <em>still a matter for the discretion of the court</em> whether it should be set aside or not.”</p> <p>The reasoning in these decisions and similar ones has been steadily followed by this court in countless cases and it will be sheer pedantry to repeat them here.</p> <p> </p> <p>It would appear that the ordinary bench in its judgment per Benin JSC with characteristic dazzling brilliance laid more emphasis on the letter rather than the purpose or spirit of  O.4 r.(2) of C.147.  Furthermore O.4 r.2 of C 147 is not outside the curative provisions of O.81 of C147.  It is starkly clear from O.81 r.1(1) that “a failure to comply with the requirements of these Rules, whether in  respect of time, place, manner, form or content or in any other respect, . . . <em>shall  be treated as an irregularity and shall not nullify the proceedings</em>, any step taken in the proceedings, or any document, judgment or order in it”</p> <p> </p> <p>Any setting aside of proceedings is a judicial discretionary exercise and not permissible upon application after fresh steps taken, see O.81 rules 1 (2) and 2.  </p> <p>Quite clearly no court has the jurisdiction to nullify proceedings etc for non compliance with any of the Rules under the High Court (Civil Procedure) Rules, 2004 (C.I.47).</p> <p> </p> <p>This rule has been construed in the manner I have done here by this court in several cases.</p> <p>The purposive rule of construction of statutes so firmly entrenched in this court, led by Dr. Date-Bah JSC during his distinguished tenure in this court and statutorily reinforced by s.10(4) of the Interpretation Act, 2009 (Act 792) heavily militate against the decision of the ordinary bench in this case.</p> <p> </p> <p>The purpose of an address of a person is to identify and trace him when necessary and can easily be cured by amendment where it is not endorsed on a writ, without injustice to the other side. But for all this, the Review jurisdiction of this court is not a further appellate one and must not be treated as such.</p> <p> </p> <p>It is pertinent to stress that the ordinary bench went to the extent of considering high foreign judicial decisions and academic writers to the effect that procedural non compliance relating to the exercise of a party’s capacity is part and parcel of that capacity and invalidates it.  However our local O.81 has the final say as far as the procedural aspects of the invocation of capacity is concerned.</p> <p> </p> <p>Where therefore an application has been brought for Review based on exceptional grounds it is difficult to say that where the very issue involved has been fully argued and exhaustively considered on the same grounds and relevant considerations, statutory or otherwise, as in this case, an error of the ordinary bench can still be considered as exceptional, on the balance of the weight of the decisions of this court which have expounded the Review jurisdiction of this court. </p> <p> </p> <p>I therefore felt constrained to dismiss this application but in the hope that the decision of the ordinary bench of this court will soon be departed from in subsequent cases.</p> <p> </p> <p> </p> <p><strong>              W. A. ATUGUBA</strong></p> <p><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p> </p> <p><strong>COUNSEL</strong></p> <p>NENE AMEGATCHER WITH HIM VICTORIA BARTH,JERRY DEI FOR PLAINTIFF/RESPONDENT/RESPONDENT/APPLICANT.</p> <p> </p> <p>NUTSUKPUI BENSON WITH HIM YAW OPPONG,NUTIFAFA NUTSUKPUI FOR 1ST DEFENDANT/APPELLANT/APPELLANT/RESPONDENT.</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2018%2F189%2FSTANDARD%2520OFFSHORE%2520TRUST%2520CO.%2520LTD.%2520VRS%2520NATIONAL%2520INVESTMENT%2520BANK%2520%2526%25202%2520ORS.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2018/189/STANDARD%20OFFSHORE%20TRUST%20CO.%20LTD.%20VRS%20NATIONAL%20INVESTMENT%20BANK%20%26%202%20ORS.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2018/189/STANDARD%20OFFSHORE%20TRUST%20CO.%20LTD.%20VRS%20NATIONAL%20INVESTMENT%20BANK%20%26%202%20ORS.pdf</iframe> </div></div></div> Sat, 07 Jul 2018 14:27:02 +0000 eric 475 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2018/18#comments NDK Financial Services v Ahaman Enterprises Limited and Others (Ruling) (J7/4/2016) [2016] GHASC 65 (13 June 2016); https://old.ghalii.org/gh/judgment/supreme-court/2016/65 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item odd"><a href="/tags/review-judgment" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Review of Judgment</a></div><div class="field-item even"><a href="/tags/jurisdiction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Jurisdiction</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The Supreme Court was approached to review a clarificatory decision previously delivered by the Supreme Court’s ordinary bench.</p> <p>First the court considered whether it had jurisdiction to review its previous decision. It relied on rule 54 of Supreme Court Rules 1996 (C.I 16) which grants it the power to review decisions under certain circumstances. It rejected the argument that a clarificatory decision is not a decision under rule 54. The court therefore concluded that it had the power to review its previous decision.</p> <p>The court then had to consider whether exceptional circumstances existed and have resulted in miscarriage of justice. It held that where a decision fails to consider a statute, case law, fundamental principle or procedure, exceptional circumstances which justify review of the decision exist. In this case, the clarificatory decision was based on a repealed statute and failed to consider the applicable statutory provisions. Consequently, court reviewed and rectified its previous decision to align it with the correct statutory provisions on the computation of interest on judgement debts.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF GHANA</strong></p> <p class="rtecenter"><strong><u>ACCRA – A.D. 2016 </u></strong></p> <p>                                                           </p> <p class="rteright"><strong><u>REVIEW MOTION NO.J7/4/2016  </u></strong>       </p> <p class="rteright"><strong>13<sup>TH</sup>  JUNE 2016</strong></p> <p> </p> <p><strong>NDK FINANCIAL SERVICES                -        PLAINTIFF/RESPONDENT</strong></p> <p><strong>NDK BUILDING                                             /APPLICANT                                             </strong></p> <p><strong>NO.1 REV. HESSE STREET </strong></p> <p><strong>OSU, ACCRA</strong></p> <p><strong> VRS </strong></p> <p><strong>AHAMAN ENTERPRISES LIMITED   -         1<sup>ST</sup> DEFENDANT/RESPONDENT/</strong></p> <p><strong>NO.73, KOJO THOMPSON RD                   RESPONDENT</strong></p> <p><strong>ADABRAKA, ACCRA  </strong></p> <p><strong>ATTORNEY- GENERAL                             2<sup>ND</sup> DEFENDANT/APPLICANT              </strong></p> <p><strong>ATTORNEY- GENERAL’S DEPT.                  RESPONDENT               </strong></p> <p><strong>MINISTRIES, ACCRA </strong></p> <p><strong>ALEX A. ADUKO                                      3<sup>RD</sup> DEFENDANT/RESPONDENT/     </strong></p> <p><strong>NO.7 HIGH STREET LANE                         RESPONDENT</strong></p> <p><strong>DANSOMAN, ACCRA</strong></p> <p> </p> <hr /> <p class="rtecenter"><strong>RULING</strong></p> <hr /> <p><strong><u>ANIN YEBOAH JSC</u></strong></p> <p>The applicant herein has moved this Court under Article 133(1) of the 1992 Constitution and Rule 54(a) of the Supreme Court Rules 1996 (C.I 16) to review part of the clarificatory decision delivered by this court’s ordinary bench on the 10<sup>th</sup> of March 2016.</p> <p>To appreciate the reasons for this delivery it would be worthwhile to briefly state the facts giving rise to this application for review.</p> <p>On the 20/4/2009 the applicant herein commenced an action against the three respondents in this application at the Commercial Division of the High Court, Accra. The High Court gave judgment in favour of the plaintiffs against the 1<sup>st</sup> and 3<sup>rd</sup> defendants and dismissed the action against the 2<sup>nd</sup> defendant, the Attorney-General. An appeal was lodged at the Court of Appeal, Accra by the Applicant herein against part of the judgment which dismissed the applicant’s claim against the 2<sup>nd</sup> defendant. The Court of Appeal, on 28/03/2013 allowed the appeal and made the second defendant as a judgment debtor. The second defendant lodged an appeal to this Court against the judgment of the Court of Appeal. This Court on 28/11/2014 dismissed the appeal. Not satisfied by the judgment of this court, the second defendant filed an application for review of the judgment of this Court dated 28/11/2014 but same was dismissed on 28/01/2015. The second defendant on 25/11/2015 by a motion sought clarification on parts of the judgment of the 28/11/2014. In that clarification application, the 2<sup>nd</sup> Defendant herein prayed  this court for the following reliefs as per the motion paper.</p> <p class="rteindent1">a.      “the use of the word “jointly” and “jointly and severally” in the judgment and the certificate of the order of this Honourable Court respectively.</p> <p class="rteindent1">b.      the appropriate computation of the interest (whether compound or simple interest) as regards the contract signed on 26<sup>th</sup> August 2005,  between the Plaintiffs, NDK Financial Services and the 1<sup>st</sup> Defendant, Ahaman Enterprise Limited.</p> <p class="rteindent1">c.      the period for the computation of the interest exigible.”</p> <p>It was therefore pursuant to the above application and reliefs that this Court delivered itself as per the Ruling of 10<sup>th</sup> March 2016 which has necessitated this Review application</p> <p>After hearing arguments this Court on the 10/3/2016 made the following orders:-</p> <p class="rteindent1">1.  “The expression” jointly and severally” was not used in this Court’s judgment of 28<sup>th</sup> November, 2014. We accordingly order a rectification of the certificate of payment to reflect that payment under the haulage contract be paid to the plaintiffs jointly by the 1<sup>st</sup> Defendant/Applicants herein.</p> <p class="rteindent1">2.  The second relief as per the motion is refused for the avoidance of doubt; the interest payable under the contract is compound interest.</p> <p class="rteindent1">3.  The computation of interest shall run from the date of the contract up to the date of filing the appeal in the Court of Appeal at the rate of 6.5% per month calculated on a 30 day per month basis collectible monthly in arrears.”</p> <p>Learned counsel for the applicant in moving the application limited his complaint on the third paragraph of the orders made by the ordinary bench and submitted that the ordinary bench misapplied the Court Award of Interest and Post Judgment Interest Rules 2005 CI 52, and submitted the decision was given per in curiam.</p> <p>In opposing the application the second defendant , that is the Attorney-General raised procedural issues which goes to our jurisdiction to entertain the application, In their affidavits in opposition which smacks of legal arguments, it was deposed to in paragraphs 19, 20 and 21, that as the order given by this Court when its clarificatory opinion was sought was not a decision of this court contemplated by Rule 54 of C.I 16 of the Supreme Court Rules 1996, the application was not properly before this Court in the sense that the clarificatory opinion delivered was not a decision of this Court contemplated by Rule 54 of CI 16 of the Supreme Rules 1996. The second defendant also contended that the matter is res judicata. This calls for an examination of Rule 54 of C.I. 16 in detail.</p> <p>Rule 54 of CI 16 states as follows:-</p> <p class="rteindent1">“The Court may review any decision made or given by it on any of the following ground-</p> <p class="rteindent2">(a) Exceptional circumstances which has resulted in a miscarriage of justice.</p> <p class="rteindent2"><strong>(b) </strong>Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicants knowledge or <strong>could not be produced by him at the time when the decision was given.”</strong></p> <p>We think learned counsel for the respondent has narrowed the scope of the word decision in legal proceedings. Decisions are not limited to what a court of law in the usual course of hearing a matter delivers. Reference may be made to Black’s Law Dictionary 9<sup>th</sup> Edition at page 467 where the word decision is defined thus:-</p> <p class="rteindent1"><em>“A judicial or agency determination after consideration of the facts and the law; <strong>especially a ruling, order or judgment</strong> pronounced by a court when considering or disposing of a case”.</em></p> <p>It thus follows that when a court is seized with jurisdiction in determining any matter and gives a ruling, be it interlocutory or otherwise the court should be deemed as having given a decision.</p> <p>In this application, what the ordinary bench did was to clarify part of its own judgment when its jurisdiction was properly invoked by the second defendant/respondent herein. In our respectful views the court’s order was a decision delivered in the application. It follows that this application falls within the ambit of Rule 54 and therefore it is a decision of this court which could be reviewed.</p> <p>Another point which was raised but not well argued was the issue of res judicata. We think that as the ruling in the clarificatory opinion of this court was a decision, it was amenable to review if the circumstances for review exist and this court could not declare same as res judicata as under Article 133 (1) of the 1992 Constitution this Court may review any decision made or given by it in the course of exercising its jurisdiction.</p> <p>Learned counsel for the applicant in moving the application contended that exceptional circumstances which have resulted in miscarriage of justice is apparent on the record to necessitate a review of the clarificatory orders. He relied on the decided cases on rule 54 like:</p> <p><strong>GIHOC Refrigeration and Household Product Ltd (No1) v Hanna Asi (No1) [2007-2008] SCGLR, Afranie v Quarco [1992] 2 SCGLR 561 And Nasali v Addy [1987-88].</strong> This court has exhibited remarkable consistency by applying strictly the basic principles governing applications for review, nevertheless if an applicant successfully demonstrates that exceptional circumstances exist which have resulted in miscarriage of justice this court may exercise its review jurisdiction. Reliance was placed in the often - quoted case of <strong>Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2 GLR 598</strong> in which Taylor JSC made an attempt to lay down the criteria that may necessitate a review by this court. Among the listed criteria was that <strong>“decision given per in curiam for failure to consider a statute or case law or fundamental principle or procedure and practice</strong> <strong>may justify a review.”</strong></p> <p>In this application learned counsel for the applicant indeed demonstrated that this court did not apply the existing statute governing the award of interest on judgment debt as when the decision was delivered, the Courts (Award of Interest and Post Judgment Interest) Rules 2005 CI 52 was already in force as at 24<sup>th</sup> January 2006.  As this Court’s ordinary bench clarificatory ruling of 10/03/2016 did not apply the statutory provision regulating interest on judgment debts but resorted to a repealed statute, that is LI 1295 that is Courts (Award of Interest) Instrument 1984 the decision of the ordinary bench was given per incuriam.</p> <p>It was therefore submitted that cases decided on the repealed LI 1295 like <strong>Butt v Chapel Hill Properties Ltd &amp; Anor [2003-2004] SCGLR 638, IBM World Trade Corporation v Hasnem Enterprises Ltd [2001-2002] SCGLR 303 and Standard Chartered Bank (Ghana) Ltd v Nelson [1998-99] SCGLR 810</strong> should be deemed as statutorily overruled by the coming into force on 24<sup>th</sup> January 2006 of the Court’s Award Interest and (Post Judgment Interest Rules) 2005, CI 52. Under this statute, the period of computation of interest after judgment is not regulated by the date of lodging any notice of appeal as the ordinary bench ordered.</p> <p>The applicant has thus succeeded in establishing that exceptional circumstances exist for this court to correct the patent error which was given in clear violation of existing statutory provisions governing the computation of interest on judgment debts. </p> <p>We think the above reason should suffice for this ruling but learned counsel for the applicant, placing reliance on the case of <strong>Network Computer System (NCS) Limited v Intelsat Global Sales And Marketing Ltd [2012] 1 SCGLR 218</strong> sought to press the point that as the order was void this court should have exercised its jurisdiction to set it aside when its attention was drawn to it.</p> <p>We have carefully considered the majority opinion in the above case in which it was held thus:</p> <p class="rteindent1"><strong>3   “A superior court could set aside a void order made by a court no matter how the void order was brought to its notice. Therefore even though the repeat application before the Supreme Court was only for stay of proceedings under the conditional order of stay of execution pending appeal made to the Court of Appeal from the refusal by the High Court to set aside the registration of the judgment, yet, since the conditional order by the Court of Appeal was a nullity under section 17 of Act 180, it is vacated here and now without waiting for the substantive appeal to be heard on its merit. The appeal was only one mode of impeaching a void order but it was not the only mode; any other mode whatsoever would serve the same purpose” </strong></p> <p>The majority opinion relied on the well-known case of <strong>Mosi V Bagyina [1963] 1 GLR 337</strong> SC to support the above proposition of law. We think that care must be taken in application of the above proposition of law in practice. In <strong>The Mosi v Bagyina</strong> supra, the High Court’s jurisdiction was invoked to set aside its own void order and the learned judge dismissed the application on the ground that he had no jurisdiction.  </p> <p>It was on appeal to the Supreme Court that the void order was set aside on the grounds that the High Court had jurisdiction to set aside its own order when it is found that it is a void order. Even though we do not doubt the soundness of the proposition of law enunciated in the case we think that the procedure to resort to vacate void orders should not be overlooked.</p> <p>A party aggrieved by a judgment of the High Court may resort to an appeal, review or judicial review. The choice is his. However as the minority in in the <strong>Network Computer System (NCS) Ltd</strong>, supra, pointed out, the laid down procedure to impeach any void decision must be followed. Appeals in this country are all statutorily conferred on appellate Courts by the Courts Act, Act 459 of 1993 and the 1992 Constitution. The subsidiary rules of court regulate the time frame and procedure for appealing against any judgment whether void or not.</p> <p>If a party resorts to an appeal to impeach a void order or judgment we think that the procedural rules governing appeals must be strictly followed to vest the appellate court with jurisdiction to exercise, for justice has always been administered in accordance with the rules regulating the procedure of the court or tribunal in any common law jurisdiction.</p> <p>Specific time frames are set down by the rules for appeals, reviews and judicial review applications and the rules should not be ignored on the basis that the order sought to be impeached is void. See <strong>Tindana (No2) v Chief of Defence Staff &amp; A-G [2011] 2 SCGLR 732  </strong></p> <p>For any step taken in legal proceedings should be sanctioned by law as <strong>Mosi v Bagyina</strong>, supra, itself has declared.</p> <p>In conclusion, we think that that the applicant has succeeded in establishing the existence of special circumstances which calls for a review of part of our decision of 10/03/2016 which deals with the computation of post judgment interest.</p> <p>Therefore under rule 1 (D) and 2(2) (a,b,c) of CI 52 that is the Courts Award of Interest and ( Post Judgment Interest) Rules, 2005, C.I. 52, interest on the transaction under consideration should run at the rate specified by statute till date of final judgment from the date of the judgment to the date of final payment.</p> <p class="rtecenter"><strong>(SGD)        ANIN    YEBOAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)        G.  T.   WOOD  (MRS)</strong></p> <p class="rtecenter"><strong>CHIEF  JUSTICE </strong></p> <p class="rtecenter"><strong>(SGD)        J.    ANSAH </strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)        V.   J.   M.  DOTSE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)        P.  BAFFOE- BONNIE  </strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)         V.  AKOTO  BAMFO (MRS)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)         J.   B.   AKAMBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong><u>COUNSEL</u></strong></p> <p>PEASAH  BOADU ESQ. FOR THE PLAINTIFF/APPLICANT</p> <p>SYLVESTER WILLIAMS (CHIEF STATE ATTORNEY) FOR THE 2<sup>ND</sup> DEFENDANT /RESPONDENT.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2016%2F10%2FNDK%2520FINANCIAL%2520SERVICES%2520LIMITED%2520VRS.%2520AHAMAN%2520ENTERPRISES%2520LIMITED.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/NDK%20FINANCIAL%20SERVICES%20LIMITED%20VRS.%20AHAMAN%20ENTERPRISES%20LIMITED.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/NDK%20FINANCIAL%20SERVICES%20LIMITED%20VRS.%20AHAMAN%20ENTERPRISES%20LIMITED.pdf</iframe> </div></div></div> Tue, 03 Oct 2017 10:29:37 +0000 admghana 158 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2016/65#comments Korboe v Amosa (Ruling) (J7/8/2016) [2016] GHASC 45 (20 July 2016); https://old.ghalii.org/gh/judgment/supreme-court/2016/45 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item odd"><a href="/tags/review-judgment" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Review of Judgment</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The applicant commenced litigation but it was soon discovered that his legal representative did not have a valid solicitor’s licence. In an earlier Supreme Court decision in the same matter (<em>Korboe v Amosa</em> (J4/56/2014)[2016] GHASC 10 (21 April 2016) it was held that a lawyer cannot practice law for as long as they do not have a licence, and any process to commence court proceedings are null and void. The applicant prayed for review of that judgment because it caused injustice and there is no requirement that a person engaging or consulting a lawyer must be satisfied that he must have a valid licence. The court reiterated that Supreme Court decisions can only be reviewed if there are exceptional circumstances or there is critical evidence that was not available at the time of the appeal and not reasonably discovered. In other words, there should have been an error of law on the part of the court. In this case, the court held that even though the applicant was not aware of the lawyer not having a licence and the law doesn’t require him to inquire, the fact that the lawyer endorses the writ and court process renders it legally incomplete and null. It was held that the applicant failed to show an error of law or miscarriage of justice.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF GHANA</strong></p> <p class="rtecenter"><strong>ACCRA A.D.2016</strong>:</p> <p> </p> <p> </p> <p class="rteright"><strong><u>REVIEW MOTION</u></strong>.<strong><u>No.J7/8/2016</u></strong></p> <p class="rteright"><strong>20<sup>TH</sup>  JULY 2016</strong></p> <p> </p> <p><strong>HENRY NUERTEY KORBOE            -             PLAINTIFF/APPELLANT/</strong></p> <p><strong>H/NO. 87 OWUSU ANSAH ROAD          RESPONDENT/APPLICANT</strong></p> <p><strong>OYARIFA-ACCRA</strong></p> <p><strong>VRS</strong></p> <p><strong>FRANCIS AMOSA                          -     DEFENDANT/RESPONDENT</strong></p> <p><strong>H/NO 1 GNAT BUNGALOWS                APPELLANT/RESPONDENT</strong></p> <p><strong>NEW ADENTA, ACCRA</strong></p> <p>                                  </p> <hr /> <p class="rtecenter"><strong>RULING</strong></p> <hr /> <p><strong>MAJORITY  OPINION</strong></p> <p><strong><u>SOPHIA  A. B. AKUFFO (MS), JSC.</u></strong></p> <p>On 20<sup>th</sup> July 2016 this Court entered its Ruling in this matter, dismissing the application herein for Review. I indicated whilst agreeing with the Ruling I would subsequently file by opinion in the matter.</p> <p><strong>Background</strong></p> <p>The salient background of this matter is that, on 29<sup>th</sup> April, 2013, the plaintiff/appellant/respondent/applicant, hereinafter referred to as ‘the Applicant’, acting by his lawyer issued a writ of summons in the High Court, Accra, against the defendant/respondent/appellant/respondent, hereinafter referred to as ‘the Respondent’, for certain reliefs thereon endorsed. The Respondent duly entered appearance and filed his statement of defence and a counterclaim. Thereafter, the Respondent raised a preliminary objection challenging the competence of the Applicant’s action on the grounds, inter alia, that , in 2013, Justin Pwavra Teriwajah, the  lawyer for the Applicant, did not have a valid solicitor’s licence, pursuant to the requirements of section 8(1) of the Legal Profession Act, 1960 (Act 32), his previous license having expired in 2012. The learned trial judge, Avril Lovelace-Johnson J.A., sitting as an additional High Court Judge, upheld the objection and struck out the Applicant’s writ as a nullity. Aggrieved by the ruling of the High Court, the Applicant appealed to the Court of Appeal. By a unanimous decision, the Court of Appeal reversed the ruling of the trial judge and held, in essence, that processes filed by a lawyer who has failed to comply with section 8(1) of Act 32 ought not to be invalidated. The Respondent, being dissatisfied with the decision of the Court of Appeal, appealed to this Court. On 21<sup>st</sup> April 2016, this Court by majority decision (Atuguba, Akoto-Bamfo and Akamba JJSC. dissenting), reversed the decision of the Court of Appeal and held, in effect, that a lawyer without a valid solicitor’s licence for any particular year, as required by section 8(1) of Act 32, cannot practice as a lawyer in any court or prepare any process as a solicitor within the particular period of non compliance, and that any process originated by such a solicitor is a nullity.</p> <p>This is an application by the Applicant praying that this Court reviews its aforesaid decision. The ground for the application is apparent in paragraph 4 of the affidavit in support of the motion and is to the effect that ‘<em>the judgement raises exceptional circumstances that warrant a review of the same by this honourable court</em>.’ From the supporting affidavit, as well as the Appellant’s Statement of Case, the essential substance of this motion for review may be summed up as follows:-</p> <p class="rteindent1">a.  This Court’s said decision has occasioned an injustice to the Applicant through no fault of his, in that the default of his solicitor, which cannot be attributed to the Applicant, has been unjustly visited on him.</p> <p class="rteindent1">b.  It is not a requirement that a person engaging, consulting or instructing a solicitor must first satisfy him/herself that such solicitor has a valid licence covering that period.</p> <p class="rteindent1">c.  The resultant injustice occasioned by the decision has deleterious consequences not only on the Applicant but also on the general public, and the same constitutes an exceptional circumstance which has led to a miscarriage of justice, hence, a need to review the decision.</p> <p>The Respondent, on the other hand, in his affidavit-in-opposition and Statement of Case submits that the Applicant has not demonstrated any exceptional circumstance which has led to a miscarriage of justice and that the application is misconceived as same is brought as an attempt to re-argue the merits of the appeal which has been already determined by the Court.</p> <p><strong>The Review Jurisdiction of the Court</strong></p> <p>This Court’s jurisdiction to review its previous decisions is derived from Article 133(1) of the Constitution of The Republic of Ghana, which reads as follows:-</p> <p class="rteindent1"><em>“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.”</em></p> <p>Pursuant to this provision, the <strong>Supreme Court Rules, 1996 (C.I. 16) </strong>set out the grounds and conditions for the invocation and exercise of this jurisdiction and, in Rule 54, it is provided that:-</p> <p class="rteindent1"><em>“</em><em>The Court may review any decision made or given by it on any of the   following grounds-</em></p> <p class="rteindent1"><em>(a) exceptional circumstances which have resulted in miscarriage of justice</em></p> <p class="rteindent1"><em>(b) discovery of new and important matter 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.”</em></p> <p>Clearly then, the jurisdiction is only available within strictly limited constraints and, particularly, in the case of an application founded on 54(a), as is the case herein, whilst the full scope of what might constitute exceptional circumstances cannot be entirely circumscribed or defined, the parameters have been enunciated by this Court on myriad occasions. In the locus classicus case of <strong>Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2 GLR 598, SC</strong>, Adade JSC observed at p. 600 of the report that:</p> <p class="rteindent1"><strong>“the mere fact that a judgment can be criticized is no ground for asking that it should be reviewed. The review jurisdiction is a special jurisdiction to be exercised in exceptional circumstances. It is not an appellate jurisdiction. It is a kind of jurisdiction held in reserve, to be prayed in aid in the exceptional situation where a fundamental and basic error must have occasioned a gross miscarriage of justice.”</strong></p> <p>Furthermore, in <strong>Internal Revenue Service v Chapel Hill School Ltd [2010] SCGLR 827</strong>, Date-Bah JSC referred to the views expressed by him in <strong>GIHOC Refrigeration &amp; Household Properties Ltd (No.1) v Hanna Assi (No.1) [2007-2008] 1 SCGLR 1</strong> where he stated at p.12 thus:</p> <p class="rteindent1"><strong>“Even if the unanimous judgment of the Supreme Court on the appeal in this case were wrong, it would not necessarily mean that the Supreme Court would be entitled to correct that error. This is an inherent incident of the finality of the judgments of the final court of appeal of the land. The brutal truth is that an error of law by the final court of the land cannot ordinarily be remedied by itself, subject to the exceptions discussed below. In other words there is no right of appeal against a judgment of the Supreme Court, even if it is erroneous…”</strong></p> <p>Some more recent pronouncements include <strong>Opoku &amp; Others (No.3) v Axex Co. Ltd (No.3) [2013-2014] SCGLR 95</strong> wherein my Revered Brother Akamba JSC stated, at p.106, thus:</p> <p class="rteindent1"><strong>“The review jurisdiction avails an applicant where there are exceptional circumstances which if un-redressed would perpetuate a miscarriage of justice. It is not another avenue for re-arguing or repeating or refashioning previous arguments as in an appeal. Nor is it an opportunity for a party to revisit and come out with more ingenious arguments which he believes will find favour with the tribunal. Simply put a review is not an opportunity to have another bite at the cherry.”</strong></p> <p>Furthermore, in <strong>In The Matter of Nana Yeboah Kodie Asare II and Another v Nana Kwaku Addai and Others; </strong>(unreported Ruling in Chieftaincy Review Motion No. J7/20/2014, dated 12<sup>th</sup> February 2015), my esteemed brother Benin JSC stated that:</p> <p class="rteindent1"><strong>“... review is not another appeal process whereby the court is called upon to rehear the case even if the decision of the ordinary bench is considered wrong. Review is a special procedure so all the relevant factors to be taken into consideration, as decided in a long line of cases … must exist in order to succeed under either sub-rule a or b of rule 54 of C.I. 16.”</strong></p> <p>Thus, over the decades, the position of the Supreme Court, regarding its review jurisdiction has remained the same. In a nutshell the principle of finality of judgments of the apex Court of the land continues to operate and the review jurisdiction is not intended to alter or in any way derogate from that; rather it is purely for the purpose of correcting egregious errors which, if not corrected, has or will work great injustice.</p> <p><strong>Analysis </strong></p> <p>It is evident from the record that the core issue that came before the Ordinary Bench of the Court was the validity of processes filed by a lawyer whose solicitors’ license has expired. Consequently, in the lead opinion of the majority, my Esteemed Brother Justice Dotse, and Justices Ansah and Yeboah in their supporting opinions, examined the terms and scope of Act 32, particularly sections 2 and 8(1) thereof. For ease of reference I will quote these provisions:</p> <p class="rteindent1"><em>“Section 2 - Status of Lawyers</em></p> <p class="rteindent1"><em>Every person whose name is entered on the Roll to be kept under this Part shall—</em></p> <p class="rteindent1"><em>(a) <u>subject to section 8</u> of this Act, be entitled to practise as a lawyer, whether as a barrister or solicitor or both, and to sue for and recover his fees, charges and disbursements for services rendered as such, and</em></p> <p class="rteindent1"><em>(b) be an officer of the Courts, and</em></p> <p class="rteindent1"><em>(c) when acting as a lawyer, <u>be subject to all such liabilities as attach by law to a solicitor</u>.” (my emphases)</em></p> <p class="rteindent1"><em>“</em><em>Section 8 - Solicitor's Licence</em></p> <p class="rteindent1"><em>(1) A person other than the Attorney-General or an officer of his department <u>shall not practise as a solicitor unless he has in respect of such practice a valid annual licence</u> issued by the General Legal Council to be known as "a Solicitor's Licence" in the form set out in the Second Schedule to this Act. [deleted by Stamp Duty Act 2005 (Act 689) s.51(2)]’ (</em>which removes the earlier requirement of stamping<em>) </em>(my emphasis)</p> <p>These provisions are, in my view, so crystal clear as not to require any fancy acts of judicial interpretation. Suffice it to say that, under section 2, the entitlement of an enrolled person to practise as a lawyer, whether as barrister, solicitor or both is expressed to be subject to Section 8, which, in paragraph (1), prohibits practising as a solicitor without a valid annual licence. Their Lordships duly analysed the scope and implication of section 8(1) in particular, taking into account also the provisions of 8(6) which penalizes practicing without a valid licence in the following terms:</p> <p class="rteindent1"><em>“ A person who practises in contravention of this section shall be liable on conviction to a fine not exceeding ¢200 and shall be incapable of maintaining any action for the recovery of any fee, reward or disbursement on account of or in relation to any act or proceeding done or taken by him  in the course of such practice. </em>[As Substituted by Legal Profession (Amendment) Decree, 1972 (NRCD 88) s.  1]<em>”</em></p> <p>Their Lordships also took into account the raison d’être for the licensing regime created by the Act, which is to protect the rights and interests of those members of the general public accessing professional legal services through effective regulation of practice in the Legal Profession to assure that, at all material times, persons offering solicitor services have been duly licensed to practise as such. In other words, mere enrolment as a lawyer, would not qualify a person to practice as a solicitor in the absence of a valid licence, which has only an annual lifespan. Thus Justice Dotse, in his opinion observed:-</p> <p class="rteindent1"><strong>“What will be the future of the legal profession if persons who voluntarily refuse to obtain and or renew their practicing licenses have the stamp of validity ascribed to their work irrespective of their breach.... In order to achieve the above I would endorse an interpretation of section 8(1) of Act 32 such as would give the words therein their natural and plain meaning because they are not ambiguous and also admit of no controversy. Taking a cue from the Interpretation Act, (Act 792), section 42 thereof, I will mandatorily interpret “Shall” as used in section 8(1) of Act 32 and state that the meaning then is that “shall” is imperative and failure to comply renders a person unqualified to practice as a lawyer at all material times of the voluntary default until the valid license is obtained....</strong>”</p> <p>After perusing the majority opinions, the question one must ask is, in what manner has the interpretation and application of the provisions of Act 32 been premised on some fundamental error or defect that could be classed as exceptional. I have not found any. The Appellant in his Statement of Case urges that the Appellant’s lawyer’s breach of Act 32 was a default solely attributable to the lawyer and it is not a legal requirement or practice for clients to enquire into the licensing status of a solicitor before instructing him to work on the client’s behalf. He also submits that Act 32, in section 8(6) completely deals with the consequences of a lawyer’s breach of section 8(1) by penalising the lawyer with criminal sanction and prohibiting him from suing any one for the recovering of fees and other receivables arising from any work performed by the defaulting solicitor during the period of his default. According to the Appellant since section 8 does not nullify or void processes filed or other work done during the period of default, the Court’s holding that processes or legal documents filed or prepared by a Solicitor who at all material times had no valid Solicitor’s Licence are a nullity constitutes a grave error of law, which error has occasioned a miscarriage of justice. In the Statement of Case, the Appellant seeks to contrast Section 8 with sections 9, 29 and 45 of the Act, the provisions of which render void certain transactions made under certain circumstances, and he concludes that nothing would have stopped the legislature from doing the same with regard to processes produced and filed without a valid licence. </p> <p>Whilst the Appellant in his statement of Case urges that, in view of the foregoing the Court in effect “sought to re-write the express provisions of Act 32.” It appears that he has completely lost sight of fact that, in the application of laws, effect has to be given not only to the particular law being interpreted but also, unless specifically excepted, every other law or regulation that is relevant to the situation, for the courts will not countenance any breaches of law. One needs to observe, in this regard (trite though this may be) that the processes and procedures of the High Court of Ghana are governed by the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The Appellant’s writ at the High Court was sued out by his lawyer and, therefore, bears the endorsement and address of the lawyer</p> <p>Order 2 r.5 of the Rules provides that:</p> <p class="rteindent1"><em>5. (1) Before a writ is filed by a plaintiff it shall be indorsed,</em></p> <p class="rteindent2"><em>(a)</em> <em>where the plaintiff sues in person, with the occupational and residential address of the plaintiff or if the plaintiff resides outside the country, the address of a place in the country to which documents for the plaintiff may be served; or</em></p> <p class="rteindent2"><strong><em>(b)</em></strong> <strong><em>where the plaintiff sues by a lawyer, the plaintiff shall, in addition to the residential and occupational address of the parties, provide at the back of the writ the lawyer's firm name and business address in Ghana </em></strong><em>and also, if the lawyer is the agent of another, the firm name and business address of his principal.</em>(my emphasis)</p> <p class="rteindent1"><em>(2) The address for service of a plaintiff shall be</em></p> <p class="rteindent2"><strong><em>(a)</em></strong> <strong><em>where the plaintiff sues by a lawyer, the business address of the plaintiff or the plaintiff's lawyer or the plaintiff's lawyer's agent as indorsed on the writ; </em></strong><em>or</em></p> <p class="rteindent2"><em>(b)</em> <em>where the plaintiff sues in person, the plaintiff's address in the country as indorsed on the writ.</em></p> <p class="rteindent1"><em>(3) <strong>Where a lawyer's name is indorsed on the writ, the lawyer shall declare in writing whether the writ was filed by the lawyer or with the authority or consent of the plaintiff</strong>, if any defendant who has been served with or who has filed appearance to the writ, requests the lawyer in writing to do so.</em></p> <p>It is also trite knowledge that when a lawyer prepares and endorses a writ on behalf of a client he is functioning as a solicitor. We all know the historical background of the section of the Legal Profession that is peopled by the persons who are referred to as ‘solicitors’ and defined by the Cambridge Dictionary as:</p> <p class="rteindent1"><em>“</em><em>a type</em> <em>of lawyer</em> <em>in Britain</em> <em>and Australia</em> <em>who is trained to prepare</em> <em>cases</em> <em>and give advice</em> <em>on legal</em> <em>subjects</em> <em>and can represent</em> <em>people</em> <em>in lower</em> <em>courts.”………………..</em></p> <p>Where solicitor’s work is performed by a lawyer whose solicitor’s license has expired can that lawyer be properly functioning as a solicitor? I do not think so.</p> <p>Although by the tenor of Section 1 of Act 32 there is, in Ghana, no such separation of the Legal Profession as pertains in certain common law jurisdictions, it is my view that where, as in section 8, the term solicitor is applied it is applied as a term of science and means precisely what in the legal fraternity is meant by ‘solicitor’, in relation to the activity the lawyer is undertaking. If he cannot be functioning as a solicitor, then in what capacity would he be endorsing the writ? Effectively, the writ would be legally incomplete and therefore not properly sued out; it would be <em>non est</em> because the lawyer performing the solicitor function would be unlicensed at the material time.</p> <p>Finally, if the Applicant (or any member of the public for that matter), whether out of diffidence or ignorance, fails to exercise his clear right to verify the credentials and legal capacity of his lawyer to perform the services he is engaged to undertake, that cannot give rise to an exceptional circumstance which has resulted in miscarriage of justice such as would merit the exercise of our review jurisdiction. Any injustice (if there be any, and I say there is none) in the matter has been generated by the unlicensed solicitor, not this Court.</p> <p><strong>Conclusion </strong></p> <p>All in all, it is my view that the Applicant has woefully failed to show that the Court committed any error of law, or that a miscarriage of justice has occurred though the decision of the Court. In other words, he has failed to establish the merits of his application and the same must, therefore, be refused as failing to satisfy the terms of Rule 54 of the Supreme Court Rules. Hence the application for review must be dismissed.</p> <p class="rtecenter"><strong>(SGD)    </strong> <strong>    S.  A.  B.  AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>ATUGUBA, JSC:</u></strong></p> <p>On 20<sup>th</sup> July, 2016, I concurred in the dismissal of the Review Application in this case for reasons to be subsequently given.</p> <p>I agree that the impassioned repeated plea of injustice to the client on account of the default of his solicitor to take out a solicitor’s licence is not an exceptional circumstance within r.54 (a) of CI 16 relied on by the Applicant. The occasional judicial thunderstorms in favour of a review premised on extreme necessity to avoid injustice cannot destroy the far greater body of the decisions of this court to the contrary, nor would this instance be covered by the true range of those thunderstorms.</p> <p>However, in one respect, this application does meet the requirement of exceptional circumstances. The Applicant queries that if the requirement of S.8. (1) relating to default to obtain a solicitor’s licence attracts the ban “<em>shall not practise as a solicitor”</em> as therein provided, why should that ban affect a lawyer in respect of his capacity as a barrister?</p> <p>There is considerable force in this argument and indeed this identical argument was accepted by the Court of Appeal as possibly correct in <strong>Akufo-Addo v. Quashie-Idun (1968) [LR66] CA (Full Bench) 667 at 678 – 682,</strong> but the Court held that paragraph 81 and the schedule thereof of the Income Tax Decree, 1966 (N.L.C.D 78) required the <em>“Lawyer in private practice</em>” to be registered by the Commissioner of Income Tax as a precondition of the practice of his profession and therefore had to be complied with irrespective of whether the lawyer is practicing as a barrister or solicitor. It was because of that provision that the trial judge’s decision that the solicitor’s licence requirement of S.8. (1) of Act 32 affected a lawyer only in his capacity as solicitor and that therefore, the Respondents could practice as barristers without licence, was faulted.</p> <p>In my original judgment in this case, I refrained from considering this point because it was not raised, so I assumed that the registration under the Income Tax Laws still applies and was not observed by the Applicant. The Applicant has not shed light on this.</p> <p>I should have thought that the practice of the legal profession in Ghana is the same as it is recounted in respect of New Zealand in <strong>Harley v. McDonald</strong> <strong>(2001) 5 LRC 82 P.C at 99-100</strong>.</p> <p>As thereat stated per Lord Hope of Craighead, delivering the judgment of the Board;</p> <p class="rteindent1"><em>“…</em>in New Zealand all practitioners, whether or not they choose to practice solely as barristers or solely as solicitors, are qualified and admitted as both.  Admission is by order of the High Court upon the judge being satisfied that the applicant is qualified under the Law Practitioners Act 1982 and is a fit and proper person to be admitted: Law practitioners Act 1982, s.46.  <em>No person can be admitted by the court as a barrister only or as a solicitor only.  The Act provides that all those admitted by the court are to be admitted as barristers and solicitors of the court:</em> s.43(1).  Barristers and solicitors enter the profession by the same route, and they may not practice unless they are the holders of a current practicing certificate issued by their District Law Society: s.56.  <em>The practicing certificates may be for practice as a barrister only or for practice as a barrister and solicitor.  But the same rights of audience before any court or tribunal apply to all such practitioners, irrespective of the type of practicing certificate which they have</em>: s.43(4).  The expression ‘practice’ is defined in s.2 of the Act as meaning ‘a person enrolled as a barrister or solicitor of the court’.  Similarly, for the purposes of the Law society’s rules of professional conduct the expression ‘practitioner’ includes both barristers and solicitors: New Zealand Law Society Rules of Professional Conduct for Barristers and Solicitors (5<sup>th</sup> edn, 1998).  Barristers owe the same duties t to the court as solicitors.” (e.s)</p> <p>I would have thought that this decision being in respect of a statute in <em>pari materia</em> with our own, it should be held that a solicitor’s licence in Ghana should cover practice by its holder as a barrister as well.  The fact that that position is expressly covered by statute in New Zealand ought to be regarded as declaratory only of the import of the nature of the call to the Bar there.  Whatever it is, I recall, when at the Bar that the courts took the view that failure to obtain a solicitor’s licence disentitled a lawyer from practicing either as a barrister or solicitor, in respect of both civil and criminal matters.  I have no reason to suppose that that <em>contemporanea  expositio</em>  has changed and I would conclude therefore that in any event if that be an error, then <em>communis </em>error<em> facit jus</em>.</p> <p>If the first limb of this application had been based on exceptional circumstances I would have granted it, since to my mind it is patently incongruous and absurd for this court to be at <em>ad idem</em> that the purpose of the provisions on solicitor’s licence is the protection of clients and yet hold that their breach should injure the very clients sought to be protected.</p> <p>However for all the reasons aforegiven I dismissed this application.</p> <p> </p> <p class="rtecenter"><strong>(SGD)           W.  A.  ATUGUBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>ANSAH JSC:</u></strong>-</p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)         J.  ANSAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>DOTSE JSC:</u></strong>-</p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)         V.  J.  M.  DOTSE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>YEBOAH JSC:</u></strong>-</p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)          ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>BAFFOE - BONNIE JSC:</u></strong>-</p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)           P.   BAFFOE - BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <hr /> <p class="rtecenter"><strong><u>DISSENTING OPINION</u></strong></p> <hr /> <p><strong><u>YAW APPAU, JSC:</u></strong></p> <p>Before the enactment of the 1992 Constitution and the current Rules of the Supreme Court 1996, [C.I. 16], neither of the previous Constitutions of this country; i.e. the Republican Constitution of 1960, the 1969 Constitution and the immediate past Constitution of 1979, expressly conferred on the Supreme Court the power to review its previous decisions. The same applied to the repealed Courts Act, 1972 [Act 372] and the repealed Supreme Court Rules, 1970 [C.I. 13] with all their amendments. Strangely enough, this review power was, however, expressly conferred on the two superior courts lower than the Supreme Court; i.e. the Court of Appeal and the High Court by their then respective procedural rules – Rule 33 of the then Court of Appeal Rules, 1962 [L.I. 218] and Order 39 of the repealed High Court (Civil Procedure) Rules, 1954 [LN 140 A].</p> <p>Notwithstanding the absence of any express power on the part of the Supreme Court to review its previous decisions prior to the enactment of the 1992 Constitution and the Supreme Court Rules, 1996 [C.I. 16], this Court, by a majority decision of 3–2, in the celebrated case of <strong>FOSUHENE v POMAAA [1987-88] 2 GLR 105</strong>, interpreted article 116 of the 1979 Constitution liberally to confer on itself the power of review of its previous decisions. Adade, JSC who, with Taylor, JSC and Abban, JA (as he then was) formed the majority with Sowah, C.J. and Francois, JSC dissenting, defined the review power of the Court as being inherent, placing it beyond the ambit of procedural rules. He stated at page 124 of the report cited supra as follows:</p> <p class="rteindent1"><strong><em>“The power to review is not procedural; it is jurisdictional, and my position is that this can never be created and vested in a court by the Rules Committee. If the Supreme Court (1960) was exercising this power, and we concede that it was properly exercising the power, then unless we are able to trace the source to a statute, we shall be obliged to conclude that it was extra-statutory, which is a way of saying that it was inherent.”</em></strong></p> <p>The above decision was affirmed the same day by the same Court in the case of NASALI v ADDY, reported at page 286 of the same report. Since then, there have been dramatic changes both constitutionally and statutorily. Now, this review jurisdiction of the Supreme Court has been given graphical expression in the Constitution of 1992, the Court’s Act, 1993 [<strong>Act 459</strong>] and the Supreme Court Rules, 1996 [<strong>C.I. 16</strong>].</p> <p>Article 133 (1) of the 1992 Constitution provides: - <strong><em>“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.”</em></strong></p> <p>Section 6 (1) of the Courts Act, 1993 [Act 459] also provides: - <strong><em>“By virtue of article 133 of the Constitution, the Supreme Court may on the grounds and subject to the conditions prescribed by the Rules of Court, review a decision made or given by it.”</em></strong></p> <p>Rules 54 to 60 of C.I. 16 of 1996 contain provisions for this review jurisdiction. Rule 54 in particular on <strong>‘Grounds for Review’</strong> provides:</p> <p class="rteindent1"><strong><em>“The Court may review a decision made or given by it on the ground of</em></strong></p> <p class="rteindent1"><strong><em>(a)           exceptional circumstances which have resulted in miscarriage of justice, or</em></strong></p> <p class="rteindent1"><strong><em>(b)           the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by the applicant at the time when the decision was given.”</em></strong></p> <p>Rule 55 provides for the time frame within which such an application could be made, which is; <em>not later than one month from the date of the decision sought to be reviewed.</em></p> <p>It must be emphasized that the considerations that must inform the mind of this Court in the exercise of its review jurisdiction have not changed much since the days of the <em>Fosuhene and Nasali cases</em> (supra). The parameters that this Court has been laying emphasis on in granting a review of its previous decision have been beautifully set out by my respected brother Dotse, JSC in the case of <strong>AMIDU (No.3) v ATTORNEY-GENERAL, WATERVILLE HOLDINGS (BVI) LTD &amp; WOYOME (No.3) [2013-2014] 1 SCGLR 606 at p. 617</strong>. They are: –</p> <p class="rteindent1"><strong><em>(a) </em></strong><em>compelling and exceptional circumstances <u>dictated by the interests of justice</u>, and; </em></p> <p class="rteindent1"><strong><em>(b)</em></strong><em> exceptional circumstances where <u>the demands of justice made the exercise extremely necessary to avoid irreparable damage</u>.</em> {Emphasis mine)</p> <p>Though there is no exact definition as to what ‘exceptional circumstances’ mean in the two situations captured above, the paramount consideration is; the existence of the absence or denial of justice. Where there is the appearance of denial of justice or absence of justice in any manner or form, then the ‘exceptional circumstances’ criterion would have been established.</p> <p>Before I set out to outline the reasons behind the applicant’s application before us to review the 4-3 majority decision of the ordinary bench of this Court, I wish to give a brief historical account of the genesis of this application.</p> <p>The applicant herein Henry Nuertey Korboe, was the plaintiff in the High Court, Accra (Fast Track Division), presided over by Avril Lovelace Johnson (Ms), J. A. (sitting as an additional High Court Judge). Upon a preliminary objection raised by the respondent herein, Francis Amosa, who was the defendant in the case initiated by the applicant in the High Court, the applicant’s writ of summons with an accompanying statement of claim was struck out on the ground that his lawyer Justin Pwavra Teriwajah, Esquire, who prepared and signed it, did not have a valid Solicitor’s licence at the time he issued the writ in question.</p> <p>The application before the trial High Court to strike out the writ and the accompanying statement of claim was grounded on section 8 (1) of the Legal Profession Act, 1960 [<strong>Act 32</strong>]. The section reads:</p> <p class="rteindent1"><em>“A person, other than the Attorney-General; or an officer of the Attorney-General’s department, shall not practise as a Solicitor unless that person has in respect of that practice a valid annual Solicitor’s licence issued by the General Legal Council duly stamped and in the form set out in the Second Schedule of the Act”</em>.</p> <p>Upon an appeal by the applicant to the Court of Appeal against the decision of the trial High Court striking out the said writ of summons and statement of claim, the Court of Appeal reversed the ruling holding that it would be harsh to visit the consequences of a solicitor’s failure to take out a practising licence on the head of the poor client. The respondent, not satisfied with the decision of the Court of Appeal, appealed to this Court. In a split decision of 4 – 3, the ordinary bench of this Court reversed the Court of Appeal and allowed the appeal.</p> <p><strong>The Majority view</strong></p> <p>In an epitome, the opinion of the Court per its majority was that; a Solicitor who is not qualified to practise within a time frame for not possessing a licence within the meaning of section 8 (1) of Act 32, is prohibited from filing any process in court. Therefore, any process filed without such a licence is a nullity and should not be given any effect in law.</p> <p><strong>The Minority view</strong></p> <p>The minority view, on the other hand in brief was that; the failure of a lawyer to take out a Solicitor’s licence should lead to an adjournment of proceedings to enable the client instruct another lawyer who is licenced, if necessary, to continue with the processes, but not to invalidate the processes filed by the defaulting lawyer for and on behalf of the client. Rather, such a defaulting lawyer should be made to suffer the consequences provided in the Act for practising without the requisite licence.</p> <p>It is the dichotomy in legal opinion of the seven (7) learned justices of the highest court of the land that has triggered the present review application before us. The applicant contends that by this decision, he has been denied justice since the processes that have been nullified belonged to him but not the defaulting solicitor.</p> <p>The preliminary issue to be determined in this application is; do the circumstances in this case warrant the invocation of the review jurisdiction of this Court?</p> <p>Whilst the answer of the applicant to this question is in the affirmative, the respondent holds a contrary view. The respondent contends that the applicant is seeking to have a second bite at the cherry, a practice this Court seriously frowns upon. The applicant, on the other hand, says the decision has occasioned a miscarriage of justice since it was tantamount to visiting the sins of a lawyer on his client.</p> <p><strong>Grounds for the application: Applicant’s case</strong></p> <p>In his application for review of the decision of the ordinary bench of this Court dated 21<sup>st</sup> April 2016, the applicant, in a not too detailed but compact statement of case filed on 13<sup>th</sup> May 2016, contended that the sole ground of his application was in respect of sub-rule (a) of rule 54 of the rules of this Court [C.I. 16] of 1996; i.e<em>. “exceptional circumstances which have resulted in miscarriage of justice”. </em></p> <p>Quoting Dotse, JSC in the <em>Amidu (No.3) case</em> cited supra that; <em>“ensuring justice was at the core of considerations that might lead to a grant of a review application”</em>, applicant contended that to make him suffer the consequences of his defaulting lawyer through no fault of his, constitutes an act of injustice to warrant the consideration of his application before the Court. He again referred to the case of ADAMU DARAMANI (No.2) v SUMAILA BIELBIEL &amp; ATTORNEY-GENERAL (No.2) [2011] 2 SCGLR 853, where Sophia Akuffo, JSC opined at page 862 thus; <em>“in terms of rule 54(a) of the Supreme Court Rules, 1996 [C.I. 16], an applicant for review must demonstrate that the exceptional circumstances that have flawed the decision sought to be reviewed have resulted in a miscarriage of justice”.</em></p> <p>According to him, it is an extreme height of injustice to make him suffer the consequences of his defaulting lawyer when he could not, by any stretch of imagination, have conjectured that his lawyer had not complied with section 8 (1) of Act 32. He argued that it is not the practice or even a legal requirement for clients to request for the licence of a Solicitor before they engage such a Solicitor to work on their behalf. The assumption is that the Solicitor is presumed by the client to have obtained all the relevant authority or licence that enables him or her to practise as such. However, if it turns out otherwise, it would be the height of all injustice to hold, as the ordinary bench of this Court did on the 21<sup>st</sup> of April 2016 that the client should be affected adversely by the acts of the Solicitor, when the law does not say or contemplate so.</p> <p>The applicant drew an analogy to the case in point to stress why the decision of the ordinary bench of this Court occasions a miscarriage of justice. According to him, it would be a denial of justice for a court in say Sekondi, to nullify in the middle of proceedings, processes filed for and on behalf of an illiterate cocoa or vegetable farmer from a remote area in the region before the court just because, unknown to the farmer, the lawyer he engaged to conduct the case for him, had not renewed his solicitor’s certificate, after he had paid all the necessary fees to such a lawyer for the work done.</p> <p>Applicant submitted that when the Legal Profession Act, 1960 [Act 32] is construed as a whole, it would constitute a grave error of law occasioning a miscarriage of justice to hold that processes or legal documents prepared and filed by a lawyer who had no valid Solicitor’s licence at the time of the preparation and filing, are a nullity. Referring to section 8 (1) &amp; (6) of the Act, applicant forcefully argued that a Solicitor who defaults in obtaining a practising licence suffers both criminal and civil sanctions; i.e. <strong>(a)</strong> he could be prosecuted and convicted to a fine not exceeding two hundred penalty units and <strong>(b)</strong> he could not maintain an action for the recovery of fees, reward or disbursement from the client who engaged him. However, the section did not make any provision for the fruits of such practice to be voided as was rightly observed by Ansah, JSC in his opinion at page 26 of the judgment sought to be reviewed. This is because the client is not the target of the legislation. The target of the legislation, i.e. (<strong>Act 32</strong>) is the lawyer who is a member of the profession that the legislation has been passed to regulate.</p> <p>Applicant contends that the failure by the lawmakers and the draftsman to introduce such a provision in the legislation was deliberate but not an unintentional omission to be filled in by the courts. Any such extreme polishing or filling-in, would therefore amount to the usurpation by this Court of the role and functions of the legislature. Applicant recalled the dictum of Lord Simonds in the English case of MAGOR &amp; ST. MELLONS RDC v NEWPORT CORP [1952] AC 189 at p. 191, which Azu Crabbe, JSC quoted with approval in the case of ASSIBEY III v AYISI [1974] 1 GLR 315 at p. 316 that; <strong><em>“the court could not take it upon itself to supply an omission in an enactment, for this would amount to usurping the functions of the legislature under the guise of interpretation”</em></strong>.</p> <p>Applicant concluded his submissions by indicating that he has met the ‘injustice’ criterion spelt out by this Court in the <em>Amidu (No.3) case</em> (supra). According to him, it is simply not feasible for clients to demand to see the Solicitor’s licence of lawyers they wish to engage for their perusal and, or examination before engaging them, just as patients who attend hospitals for treatment could not demand to see and peruse the practising certificates of Medical or Dental Practitioners, who have similar provisions in their Act; i.e. the Medical and Dental Act, 1972 [NRCD 91], before allowing them to attend to them. In the same vein, it would be preposterous to contend that a passenger boarding a commercial vehicle, under the management of a drivers’ union, should demand to see if the driver in charge of the vehicle has a valid driving licence before he boards the vehicle.</p> <p>In all these examples, it is the defaulting Dentist, or Medical Officer or Driver who faces the full rigors of the law but not the innocent patient or passenger. Why should a client, in the case of justice dispensation, be presented with a different end-result and be made to suffer the consequences of his lawyer’s failings when the law does not say so?</p> <p>It is for the above reasons that the applicant is praying this Court to take a second look at the decision of the ordinary bench and have it reviewed in the interest of justice.</p> <p><strong>Respondent’s case</strong></p> <p class="rteindent1"><em>“We submit that in accordance with the well-established principles, the review jurisdiction of the Supreme Court was a special jurisdiction and was not intended to provide an opportunity for further appeal. It was jurisdiction which was to be exercised where the applicant has succeeded in persuading the court that; <strong>there has been some fundamental or basic error which the court inadvertently committed in the course of delivering its judgment</strong>. The question that arises in this case is whether the Applicant has surmounted the first test of demonstrating what basic error or fundamental error had been committed by the majority of this Court in the decision sought to be reviewed”.</em></p> <p>The above quotation is a paraphrase that introduced respondent’s case against any attempt by this Court to review its previous decision dated 21<sup>st</sup> April 2016 as prayed by the applicant. The respondent recounted a host of decisions of this Court on the legal position of its review jurisdiction and prayed the Court not to succumb to applicant’s prayer but to dismiss it with costs. The cases referred to include: MECHANICAL LLOYD ASSEMBLY PLANT LTD v NARTEY [1987-88] 2 GLR 598; QUARTEY &amp; Others v CENTRAL SERVICES CO. LTD [1996-97] SCGLR 398; AFRANIE II v QUARCOO [1992-93] GBR 1451; CHARLES LAWRENCE QUIST v AHMED DANAWI (Review Motion No. J7/8/2015, dated 5<sup>th</sup> November 2015) – Unreported Decision of this Court; ARTHUR (No.2) v ARTHUR (No.2) [2013-2014] SCGLR 569; PIANIM (No.3) v Ekwam [1996-97] SCGLR 431; KOGLEX (GH) LTD v ATTIEH [2001-2002] SCGLR 947; ATTORNEY-GENERAL (No.2) v TSATSU TSIKATA (No.2) [2001-2002] SCGLR 620; TAMAKLOE v REPUBLIC [2011] 1 SCGLR 29; OPOKU &amp; Others (No.3) v AXEX CO. LTD (No.3) [2013-2014] SCGLR 95 and INTERNAL REVENUE SERVICE v CHAPEL HILL LTD [2010] SCGLR 827.</p> <p>After referring to various dicta of learned justices of this Court in the cases cited supra, respondent ended with a quote from the judgment of Date Bah, JSC in the <em>Internal Revenue case</em> supra, which is a summary of the Court’s view or position on its review jurisdiction. He wrote: <strong><em>“That the review jurisdiction of this Court is not an appellate jurisdiction, but a special one. Accordingly, an issue of law that has been canvassed before the bench of five and on which the court has made a determination cannot be revisited in a review application, simply because the losing party does not agree with the determination”.</em></strong></p> <p>Respondent concluded his submissions that the applicant has not established or shown that the decision of the ordinary bench was given <em>per incuriam</em>, or contains a fundamental error or an inadvertent error. Rather, what the applicant has sought to do in this review application is to indulge in arguments which are calculated to re-open the case for rehearing on its merits, which is frowned upon by this Honourable Court.</p> <p><strong>Evaluation of the two positions presented by the parties</strong></p> <p>I am not unaware that I am not sitting on appeal over the decision of my learned and respected brothers of the ordinary bench. For, as this Court has stated with utmost consistency, a review application is not an avenue for rehearing a case or matter already decided by the ordinary bench of the Court. As the respondent rightly contended in his submissions, this Court frowns upon attempts by losing parties to re-open their cases for rehearing under the guise of review applications when it is clearly a case of the losing party not agreeing with the decision of, or the determination by the ordinary bench of the Court.</p> <p>But the two important questions to be answered here are:</p> <p class="rteindent1"><strong>(i)             </strong><em>Is the current application before us an attempt by the applicant to have a second bite at the cherry? Or; </em></p> <p class="rteindent1"><strong>(ii)           </strong><em>has the applicant demonstrated that there are exceptional circumstances arising from the decision of the ordinary bench of this Court that constitute a fundamental or basic error resulting in a miscarriage of justice that makes the decision reviewable?  </em></p> <p>My simple answer to the first question above is in the negative whilst it is in the affirmative in respect of the second.</p> <p>In an attempt, albeit futile, by the losing party to convince this Court to review its unanimous decision in <strong>ARTHUR (No.1) v ARTHUR (No.1) [2013-2014] 1 SCGLR 543</strong> per Date Bah, JSC, the review panel of the Court, in one voice expressed through Dotse, JSC in the case of <strong>ARTHUR (No. 2) v ARTHUR (No 2) [2013-2014] SCGLR 569 at 579-580</strong>, set out the parameters which it called the ‘road map’ for those who would want to invoke the review jurisdiction of this Court under rule 54(a) of C.I. 16 to note. The Court stated:</p> <p class="rteindent1"><strong><em>“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 (C.I. 16), to be mindful of the following which 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 circumstances of each case:</em></strong></p> <p class="rteindent1"><strong><em>(i)       in the first place, it must be established that the review application was filed within the 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;</em></strong></p> <p class="rteindent1"><strong><em>(ii)     that there exists exceptional circumstances to warrant a consideration of the application;</em></strong></p> <p class="rteindent1"><strong><em>(iii)    that these exceptional circumstances have led to some fundamental or basic error in the judgment of the ordinary bench;</em></strong></p> <p class="rteindent1"><strong><em>(iv)    that these have resulted into miscarriage of justice (it could be gross miscarriage or miscarriage of justice simpliciter);</em></strong></p> <p class="rteindent1"><strong><em>(v)      the review process should not be turned into another avenue as a further appeal against the decision of the ordinary bench; and</em></strong></p> <p class="rteindent1"><strong><em>(vi)    the review process should not be used as a forum for unsuccessful litigants to re-argue their case.</em></strong></p> <p class="rteindent1"><strong><em>It is only when the above conditions have been met to the satisfaction of the Court that the review panel should seriously consider the merits of the application”.</em></strong></p> <p>I hold the view that the applicant herein has satisfied the above criteria to warrant the exercise by this Court of its review jurisdiction.</p> <p>The issue that was germane to the appeal before the ordinary bench of this Court was; <em>whether the failure of a lawyer to take out a Solicitor’s licence pursuant to section 8 (1) of Act 32 renders invalid or vitiates all such processes initiated by the said lawyer</em>. The majority view per my respected brothers Dotse, Ansah, Anin-Yeboah, and Baffoe-Bonnie, JJSC was that having lost his right to practice law pursuant to section 8 (1) of Act 32, it is apparent that no validity flows from any process or appearance that such a lawyer will offer any client.</p> <p>Though I have already quoted <em>supra</em> Section 8 (1) of Act 32 which is in contention, I deem it necessary to repeat it here. It reads:</p> <p class="rteindent1"><strong><em>“A person other than the Attorney-General or an officer of his department shall not practice as a solicitor unless he has in respect of such practice a valid annual licence issued by the General Legal Council to be known as a ‘Solicitor’s Licence’ in the form set out in the second schedule to this Act…”</em></strong></p> <p>According to the majority, the above provision of the Act is clear and unambiguous and does not call for any interpretation to deny its effect. Its effect, in the words of my brother Anin-Yeboah, JSC is that; <em>“it is a straightforward and clear prohibition against solicitors, who upon failure to procure a solicitor’s licence, are prohibited from practising as solicitors”</em>. Flowing from the above, the majority interpreted the section to mean that any process filed by such a defaulting lawyer is a nullity and therefore void because any other interpretation that seeks to relax the clear and unambiguous provision, in their view, would obviously run counter to the purpose for which the statute was enacted for the regulation and discipline of the profession.</p> <p>In countering the argument advanced by the applicant herein, which was supported by the minority of the ordinary bench that nullifying processes filed by such defaulting lawyers was tantamount to visiting the sins of the solicitor on the head of his poor client, the majority said our law reports are replete with countless cases in which actions have been dismissed based on lack of diligence on the part of solicitors. They gave examples of cases that clients have lost due to failings on the part of their lawyers without the courts giving any considerations of the hardships the clients suffer. Some of the examples being: appeals that have been struck out freely for having been filed outside the time frame set down by mandatory rules of court; amended pleadings that are declared void by the court when solicitors, with full instructions to conduct the cases, fail to comply with the rules; the failure of solicitors to cross-examine on crucial issues with dire consequences on their clients and the striking out of even constitutional cases where solicitors fail to comply with procedural rules.</p> <p>Citing the case of <strong>FODWOO v LAW CHAMBERS &amp; CO. [1965] GLR 363 SC</strong>, where a client sued his lawyer claiming damages for breach of duty, my brother Anin-Yeboah, JSC contended that litigants or clients are not bereft of remedies if a solicitor misconducts himself in the performance of his duties. This argument implies that a client who loses financially and precious time by the nullification of processes filed on his behalf by a solicitor who did not possess a valid solicitor’s licence has a remedy in pursuing such a solicitor in court for redress.</p> <p>Concluding this line of thinking, the majority per my brother Anin-Yeboah, JSC wrote: <em>“As a solicitor who is not qualified to practice within a time frame is prohibited by section 8 of the Legal Profession Act, Act 32 to practise, any process that he has filed without a licence to practise should not be given any effect in law. Legal profession is perhaps the most honourable profession in the world and has for centuries seemed to be so. It is my wish therefore that as a privileged few, we must uphold all what the profession stands for and what has made it to survive the centuries with reverence in every country in the world. With this, I proceed to allow the appeal so as to enforce the clear provisions of the statute which was passed to regulate this noble profession”.</em></p> <p>I agree totally with my respected brother Anin-Yeboah, JSC of the majority side that the Legal profession is a very honourable profession, if not the most honourable, for which we must uphold all what it stands for. I will add that it is not only honourable but a very noble one. However, with the greatest respect to my brothers on the majority, I think the goal they scored to win the day on 21<sup>st</sup> April 2016 is reminiscent of the Maradonna ‘hand of God’ goal that he scored in the 51<sup>st</sup> minute during the quarter final match between Argentina and England in the 1986 FIFA World Cup, which propelled Argentina to win the world cup after beating Germany in the final match.</p> <p>The question is; for what purpose was the Legal Profession Act, [<strong>Act 32</strong>] passed? In other words, who are the targets of the law? As the majority rightly stated, it was enacted for the regulation and discipline of the profession. It is meant to regulate the practice of law by members of the legal profession to avoid any abuse. This means that it is only members of the profession that have to suffer the consequences of any breach of its provisions, not outsiders. It is for this reason that sections 8 (6); 29 (1); 44 and 45 of the Act are carved in the following words:</p> <p class="rteindent1"><em>“8 (6) A person who practices in contravention of this section commits an offence and is liable on conviction to a fine not exceeding two hundred penalty units and <u>shall not maintain an action for the recovery of fees, reward or disbursement </u>on account of, or in relation to, an act or proceeding done or taken in the course of that practice”.</em></p> <p class="rteindent1"><em>“29 (1) An agreement intended to secure to a lawyer <u>a remuneration</u>, or <u>to constitute the conditions of employment</u> other than authorised by this Act is void”.</em></p> <p class="rteindent1"><em>“44 (1) A person who is not a lawyer shall not directly or indirectly for or <u>in expectation of a fee, gain or reward</u> draw or prepare a legal document.</em></p> <p class="rteindent1"><em> (2) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of one hundred penalty units”. </em></p> <p class="rteindent1"><em>“45 (1) An agreement to pay <u>a fee or reward</u> to a person, other than a lawyer, in consideration of the drawing or preparation of a legal document is void.</em></p> <p class="rteindent1"><em>(2) A person who pays to a person, other than a lawyer, <u>a fee or reward</u> for having drawn or prepared or agreed to draw or prepare a legal document, <u>may sue for and recover the amount of the fee or reward from the person to whom it was paid”.</u></em> {Emphasis mine}</p> <p>What these sections of the Act quoted supra mean is that if you are not a lawyer or a person licensed to practise as a lawyer or a solicitor, any agreement or contract you sign with any person for a consideration in the form of a fee or a reward for any process or document prepared for that person is not enforceable. The Act is against persons, who are not solicitors qua solicitors, which includes lawyers who have not taken Solicitors licence, benefitting financially or in kind from processes or documents prepared for others, when they are not licensed to do so. The law does not talk of the nullification of documents or agreements prepared by such unqualified persons. It is only the remuneration that follows the work done that the unqualified person is not permitted by law to take or benefit from aside of the punishment that the law prescribes for such persons.</p> <p>So if the ordinary bench of the Court says the Act is clear and unambiguous, I totally agree with them. In the words of my respected brother Anin-Yeboah JSC in his judgment already referred to above; <em>“It is a straightforward and clear prohibition against solicitors who, upon failure to procure a solicitor’s licence, are prohibited from practising as solicitors”</em>. That is perfectly right. That is why the law has provided means of punishment for solicitors who practice for fees without taking their solicitor’s licence but did not go further to prescribe any punishment for innocent persons who happened to become clients of such solicitors. The law even protects such innocent clients from paying money to such solicitors for work the errant solicitors had done for them but said nothing about the work done or documents prepared for the client who is the beneficiary.</p> <p>The position taken by the majority of the Ordinary Bench of the Court in extending penal measures meant for members of the legal profession to innocent clients who are non-members, is tantamount to adding to the legislation what the legislators never intended. Professor Kludze, JSC (of blessed memory), speaking for this Court in the case of <strong>REPUBLIC v FAST TRACK HIGH COURT, ACCRA; EX-PARTE – DANIEL [2003-2004] 1 SCGLR 364 at p. 370</strong>, on the interpretation of documents, cautioned as follows: <em>“…In the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the law-giver was mistaken or unwise…Where the words of a statute are unclear or ambiguous, it is only then that we must try to apply the well-known canons of construction to ascertain and enforce the law. Where the words of a statute are clear, our duty is to enforce the statute as written. That is the fundamental rule of constitutional and statutory interpretation…We must not insert our own words or remove words from the legislation in order to arrive at a conclusion that we consider desirable or socially acceptable. If we do that, we usurp the legislative function which has been consigned to the legislator”.</em></p> <p>To borrow the words of Oliver Wendell Holmes, Jnr in the case of <strong>U.S. v WHITRIDGE [1904] 197 U.S. 135;</strong> in interpreting a statute, <em>“the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down”</em>. Again, in <strong>PANHANDLE OIL CO. v MISSISSIPPI EX REL. KNOX [1928] 277 U.S. 233</strong>, the same celebrated judge reiterated; <em>“Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them”.</em></p> <p>There are real and factual situations where persons who are not lawyers (including some court registrars or officials), prepare documents or processes for litigants to sign and file in court as if the processes were prepared by the litigants themselves. These documents are not thrown out because they do not bear the stamp of any qualified or licensed lawyer or solicitor. Why should processes filed by an unlicensed lawyer on behalf of a client be thrown out just because they bear his/her stamp instead of meting out to the unlicensed lawyer the punishment that the law imposes on such defaulting solicitors/lawyers? Who is the owner of these documents that the majority says should be thrown out; the defaulting lawyer or the client on whose behalf they were prepared? Is it the intention of the legislature to punish the innocent client instead of the defaulting lawyer? Obviously, the Act did not envisage the innocent client as someone who has to suffer for any breach of its provisions by his/her solicitor. The target of the Act is the solicitor who flouts the law that regulates his/her practice.</p> <p>As Aharon Barak rightly stated in his book; ‘Purposive Interpretation in Law’, published in 2005 by Princeton University Press; <em>“Judges should realise the intent of the Legislature by giving expression to the statute’s subjective purpose, but they also should integrate the statute into the legislative system as a whole by giving expression to the fundamental values of the system”. </em>He continued;<em> …”to ignore subjective purpose in interpretation is to interpret based on words, as opposed to goals”.</em></p> <p>Coming back to the examples that my respected brother Anin-Yeboah, JSC gave of instances where the failings of lawyers had led to litigants losing their cases; I wish to state that every case is ‘fact-sensitive’ or in other words, has its peculiar circumstances. The cases he cited, with the greatest respect to him, are not analogous to the one presently before us. They are cases where the rules of court have provided the ‘dos’ and ‘don’ts’ for litigants to follow. Where the rules provide timelines for initiating appeals and the timeline is flouted, the axe falls. But even that; the rules are not water-tight as there are exceptions in some cases.</p> <p>In the case of <strong>KOTEY V KOLETEY [2000] SCGLR 417</strong>, this Court, under powers conferred on it by article 131 (2) of the Constitution, granted the applicant special leave to appeal even though under the rules, the applicant was completely out of time within which to appeal. This was after the Court had found that the failure to file the appeal within time was not due to the failings of the applicant but his lawyer. The principle applied was not to visit the sins of the lawyer on his client.  Also in the case of <strong>REPUBLIC v HIGH COURT, ACCRA; EX-PARTE LANDS COMMISSION (VANDERPUYE ORGLE ESTATES LTD, INTERESTED PARTY) [1995-96] 1 GLR 208</strong>, the Court of Appeal failed to nullify, and rightly so, the disposition of Stool land by the then James Town Mantse to the respondent when subsequently, the election and installation of that chief was declared a nullity. The essence of that judgment was to protect the innocent third party purchaser who purchased the land in good faith without notice of any defect in the chief’s election and installation, to avoid the denial of justice.</p> <p>To quote my respected elder brother Akamba, JSC, who is on the verge of vacating his seat on the highest bench of the land after over forty (40) years of dedicated and meritorious service to the Judiciary and country, in his concurring opinion to that of the President of the ordinary bench of this Court Atuguba, JSC on the minority side; <em>“The lawyer has been trained at a great expense either to himself or to the State or both, to offer professional and/or legal advice ostensibly for a fee hence he cannot allow himself to be dictated to even to the point of infringing the law, which he professes to uphold. The lawyer must suffer for his disobedience alone and not drag his ignorant client with him. I am yet to learn of a client on whom a person unqualified to practise dentistry, (for failure to register under the Medical and Dental Act, 1972 NRCD 91), having already repaired and fixed artificial teeth, is ordered to surrender the artificial teeth as a punishment for the actions of the defaulting dentist. To my mind, the aberrant dentist suffers the punishment prescribed under the Decree alone. It does not extend to whatever ‘unauthorised’ practice that has already taken place”.</em></p> <p>The provision under section 8 (1) &amp; (6) is intended to penalise or punish a practitioner who has failed to take or renew his licence but not to punish the innocent client who has suffered financially for the processes filed in his favour, which processes invariably belonged to him but not the defaulting practitioner.</p> <p>The power granted us to review our previous decisions upon application, to use the exact words of Hayfron-Benjamin, JSC (of blessed memory) in the <em>Afranie case</em> (supra), is to; <strong><em>“correct mistakes, misstatements and misapplications of the law”</em></strong><em>. </em>In fact, we should eschew hardened reluctant positions and instead exhibit genuine willingness for introspection on our part so that where it becomes apparent or obvious that a fundamental error has occurred, we will be prepared to admit and correct it upon review. On this score, I commend the boldness and candidness with which my respected elder brother Ansah, JSC, in the case of <strong>HANNA ASSI (NO.2) v GIHOC REFRIGERATION &amp; HOUSEHOLDS PRODUCTS LTD (NO.2) [2007-2008] SCGLR 16</strong>, made a volte-face from his earlier stand in the majority judgment of the ordinary bench and allowed the application for review of the previous decision of the Court which he concurred with.</p> <p>The meaning ascribed to section 8 (1) &amp; (6) of Act 32 by the ordinary bench, when read in conjunction with other sections of the Act as a whole, particularly sections 9, 29, 44 and 45 quoted supra, show clearly that the majority opinion cannot be allowed to stand as authority binding on all other courts within our jurisdiction.</p> <p>It has been alleged that the applicant is not bereft of any remedy as he could sue his client for the fees he paid for the preparation of the documents that have been nullified, citing the case of <em>Fordwoo v Law Chambers</em> (supra), so no exceptional circumstances have been established to warrant a review. That argument, however, with the greatest respect to its proponents, is not appealing to me. In the <em>Hannah Assi (No.2) case</em> supra, which this Court found proper to review on grounds of exceptional circumstances, the applicant who was the defendant/appellant in that case, also had the opportunity to go to the trial High Court to institute a fresh action to claim the relief of declaration of title which he did not counter-claim for, as the ordinary bench of this Court in that case decided. But on review of that decision, the majority members of the review panel held a contrary view. Notwithstanding the fact that the applicant in that case could have gone back to the trial High Court to seek the relief he did not expressly ask for in the original matter before the trial court, this Court held that <em><u>doing so would be tantamount to undercutting the importance of judicial economy and at the same time increasing the costs of the citizen’s access to justice.</u></em> This Court, accordingly, granted a review of its previous decision in that case.</p> <p>In my view, it is not a question of the applicant being or not being bereft of a remedy. It is a question of the unwarranted costs involved and other extenuating circumstances like unnecessary delay with its accompanying consequences that the innocent applicant would be confronted with, when the decision of the ordinary bench is allowed to stand.</p> <p>To request the applicant herein to contract a new lawyer to begin afresh with the filing of a new writ, after paying his defaulting lawyer for the same exercise, with no opportunity to recoup the fees already paid without suffering extra costs, constitutes exceptional circumstances where the demands of justice makes the exercise of our review jurisdiction extremely necessary to avoid irreparable damage. The irreparable damage is the inability to retrieve monies already paid without incurring extra costs and the consequent delay and other stumbling blocks like the likelihood of being caught by the limitation Act that can defeat the ends of justice. <em>“This would be tantamount to undercutting the importance of judicial economy and at the same time unduly increasing the cost of the citizen’s access to justice”</em> – to use the words of the late Prof. Ocran, JSC in the <em>Hanna Assi (No.2)</em> case (supra) at page 41 of the report.</p> <p>The rationale behind the decision of the ordinary bench to nullify the processes filed for and on behalf of the applicant, as they indicated, was to instil discipline and sanity in the legal profession. I do not see how the mere nullification of documents belonging to an innocent litigant, who has paid money for their preparation and in the absence of any personal infraction of the law on his part, could instil discipline and sanity in the legal profession. How does the nullification of the documents of the applicant, affect Lawyer Teriwajah who infringed the Legal Profession Act? It does not in any way, because the documents are not his and he loses nothing.</p> <p>With this decision, a lawyer who has not renewed his/her licence can prepare legal documents, take his fees, and allow the person on whose behalf the documents have been prepared, to sign them personally and then file them. With the absence of any indication that the documents were prepared by someone without a licence, while in reality they were prepared by such a person, the documents are accepted and the unqualified lawyer goes scot free. Later, after such a lawyer has taken his licence, he could come into the same case with a notice of appointment as solicitor. No law stops him/her from doing so. This is the development that such a decision is going to breed. It is an interpretation that tends to look at the surface only; i.e. the letter but not the spirit of the legislation.</p> <p>The spirit of the Legal Profession Act is to instil discipline and order in the profession that is why penalties (both civil and criminal), have been prescribed in the law for members who breach the Act. The law says that a person without authority under the Act, which includes a lawyer who has not taken his solicitor’s licence, cannot take fees or earn remuneration when they prepare legal documents for innocent clients. In addition, they could suffer other penalties or punishments. The Act considered these provisions as those that could instil discipline in the profession because when implemented, they affect members directly. The Act did not consider the nullification of documents already prepared and filed on behalf of an innocent client or litigant as punishment for the unqualified lawyer who filed them, because such a decision flies in the face as the unqualified lawyer suffers nothing consequentially. For this reason, the Act did not say such documents have no validity. The Act says such unqualified practitioners must face penalties prescribed under the law. It is therefore a basic or fundamental error if we import into the provisions of the Act, using our powers of interpretation, an intent that the legislature never contemplated.</p> <p>I therefore hold the strongest view that the applicant has demonstrated beyond all doubts that exceptional circumstances that have led to a miscarriage of justice exist, which make the majority judgment of the ordinary bench reviewable.</p> <p>I, accordingly, grant the application that the judgment be reviewed for the restoration of applicant’s processes that were nullified by the trial High Court.</p> <p class="rtecenter"><strong>(SGD)         YAW  APAAU</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>AKOTO – BAMFO (MRS)</u></strong><strong><u> JSC:</u></strong>-</p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)          V.   AKOTO – BAMFO (MRS)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>AKAMBA JSC:</u></strong>-</p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)         J.   B.  AKAMBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>NANCY  D.  AMPOFO (MS) ESQ.  FOR THE DEFENDANT /RESPONDENT/ APPELLANT/RESPONDENT.</p> <p> OSAFO BUABENG ESQ. FOR  THE PLAINTIFF/APPELLANT/RESPONDENT /APPLICANT.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2016%2F10%2F-HENRY%2520KORBOE%2520V%2520FRANCIS%2520AMOSA%2520%2528Dotse%2529%25202.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/-HENRY%20KORBOE%20V%20FRANCIS%20AMOSA%20%28Dotse%29%202.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/-HENRY%20KORBOE%20V%20FRANCIS%20AMOSA%20%28Dotse%29%202.pdf</iframe> </div></div></div> Mon, 18 Sep 2017 12:09:10 +0000 admghana 138 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2016/45#comments Ecobank Ghana Limited v Aluminium Enterprise Ltd (Ruling) (J7/5/2015) [2017] GHASC 40 (23 March 2017); https://old.ghalii.org/gh/judgment/supreme-court/2017/40 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item odd"><a href="/tags/review-judgment" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Review of Judgment</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>This case concerned the reversal of a judgment handed down in this court by a single judge in terms of article 134(b) of the 1992 Constitution. Furthermore, the order handed down was non-executable and that the court erred in ordering the suspension of a non-executable order. Article 134 (b) prescribes what a three-judge panel may do after hearing an application brought by a party who is aggrieved with the decision of a single judge. The court considered whether a three-judge panel should apply the conditions applicable by an appeal or a review or a combination of the two. It was found that an application of this nature couldn’t be treated as an appeal since the full record of appeal will not have been placed before the court. It was therefore found that it should be treated as a special review, considering all factors and merits of the case. Therefore, all rules on review should largely apply. The court found that where there is no executable order from the decision of the court below, this court cannot make an order to stay execution. The court found that the decision by the single judge did not disclose what factors were taken into consideration to enable him to conclude that it was fair to grant the application. Thus, the record did not disclose any special circumstances. Application granted.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"> </p> <p class="rtecenter"><strong><u>IN THE SUPERIOR COURT OF JUDICATURE</u></strong></p> <p class="rtecenter"><strong><u>IN THE SUPREME COURT</u></strong></p> <p class="rtecenter"><strong><u>ACCRA – A.D. 2017</u></strong></p> <p class="rtecenter"> </p> <p class="rteright"><strong><u>REVIEW MOTION NO. J7/5/2015</u></strong></p> <p class="rteright"><strong><u>23<sup>RD</sup> MARCH, 2017</u></strong></p> <p> </p> <p><strong>ECOBANK GHANA LIMITED           -        PLAINTIFF/APPELLANT/RESPONDENT</strong></p> <p><strong>VRS</strong></p> <p><strong>ALUMINIUM ENTERPRISE LTD.   -       DEFENDANT/RESPONDENT/APPLICANT</strong></p> <p> </p> <hr /> <p class="rtecenter"><strong><u>RULING</u></strong></p> <hr /> <p><strong><u>BENIN, JSC</u></strong>:-</p> <p class="rtejustify">This is an application on notice brought by the Aluminium Enterprise Limited, the defendant/respondent/applicant against Ecobank Ghana Ltd, the plaintiff/appellant/respondent praying for an order reversing the decision of this court presided over by a single judge dated 1<sup>st</sup> December 2016. Aluminium Enterprise is hereafter called the Applicant and Ecobank Ghana is called the Respondent.</p> <p class="rtejustify">The facts that have brought the parties to this court are these. The applicant obtained judgment against the respondent at the High Court, Accra for the payment of a liquidated sum. The respondent has appealed against that decision to the Court of Appeal which is yet to hear and determine same. The respondent applied to the High Court for a stay of execution pending appeal. The High Court granted a partial stay by deciding that the respondent should pay a third of the judgment debt to the applicant, whilst the remaining two-thirds should await the outcome of the appeal.</p> <p class="rtejustify">The respondent believed the partial grant of stay amounted to a refusal so they repeated the application before the Court of Appeal. The main thrust of their argument was that should they succeed on appeal the judgment would be rendered nugatory since the applicant would not be able to refund the sum of money. The argument did not find favour with the Court of Appeal presided over by a single judge so they were denied the prayer sought. The respondent took the matter before the duly constituted bench of the Court of Appeal but again they were not successful.</p> <p class="rtejustify">Being dissatisfied with the decision of the duly constituted court, the respondent applied to this court for special leave to appeal against same; the court granted their request. They filed the appeal to this court on the main ground that the Court of Appeal did not take relevant matters into consideration in arriving at their decision to deny the prayer for stay of execution.</p> <p class="rtejustify">Thereafter the respondent filed an application before the Court of Appeal seeking an order suspending the order or decision affirming the partial stay of execution, or alternatively to stay proceedings consequent upon the orders of the Court of Appeal. The application was dismissed by the said court, on ground that no exceptional circumstances had been disclosed to warrant the exercise of its discretion in their favour.</p> <p class="rtejustify">The respondent repeated the application for the suspension of the Court orders or stay of proceedings before this court. This court, presided over by a single judge, granted the application in these terms:</p> <p class="rtejustify">“I think it is fair that the order by the Court of Appeal confirming the conditional grant of stay of execution by the High Court is suspended pending the determination of the appeal before this Court against the said order. Application is accordingly granted. No order as to costs.”</p> <p class="rtejustify">The present application has been brought under article 134(b) of the 1992 Constitution. It provides:</p> <p class="rteindent1 rtejustify"><strong>134. A single Justice of Supreme Court may exercise power vested in the Supreme Court not involving the decision of the cause or matter before the Supreme Court, except that-</strong></p> <p class="rteindent1 rtejustify"><strong>(b)</strong>   <strong>in civil matters, any order, direction or decision made or given under this article may be varied, discharged or reversed by the Supreme Court, constituted by three Justices of the Supreme Court.</strong></p> <p class="rtejustify">The applicant is saying that the order by the Court of Appeal affirming the High Court’s grant of a conditional stay of execution was not an executable order. For that reason it is wrong for this court to suspend such an order. They therefore prayed that the said order of the single judge of this court be reversed by virtue of article 134(b) of the Constitution. This constitutional provision merely prescribes what the three-judge panel may do after hearing an application brought by a party who is aggrieved with the decision of a single judge. It does not state under what conditions or in what situations the second panel may consider in making the determination to reverse, discharge or vary the decision or order of a single judge. Should the three-member panel consider or apply the conditions applicable to an appeal or a review or a combination of the two? It is clear to us that an application such as this cannot be treated as an appeal since the full record of appeal will not have been placed before the court; moreover the decision of a single judge, and for that matter a three-member panel, cannot involve a substantive cause or matter before the court. Furthermore, in <strong>Mass Projects Ltd (No. 2) v. Standard Chartered Bank (No. 2) (2013-14) SCGLR</strong> <strong>309</strong> this court held that an application under article 134 of the Constitution is a special review application, which was entirely different from the court’s ordinary review jurisdiction under article 133 of the Constitution; therefore the provisions of rule 54 of the Supreme Court Rules, 1996 C.I. 16 do not apply. Consequently, the effect of the foregoing opinion and in the <strong>Mass Projects Ltd</strong> case, supra, is that an application under article 134 can neither be treated as an appeal nor an ordinary review.</p> <p class="rtejustify">What considerations then will be applicable in a special review application, in the absence of guidelines provided by the Rules of Court? Once the right has been given to parties and the court has been given jurisdiction to entertain applications, the court has an inherent obligation to do justice in the circumstances of the case. However, the court is constrained, in the absence of directions, in putting its hand on what situations and circumstances it will exercise this jurisdiction, unlike the provisions in rule 54 of C.I. 16 in cases of ordinary review application. We would venture to suggest that in exercising its jurisdiction under article 134 the court should examine each case on its merits. With time a certain regime of guidelines will have been developed by this court through various decisions in order to light the path of litigants who seek to take advantage of the leeway afforded by the existence of article 134 of the Constitution. We would take this opportunity to add our voice to the call upon the Rules of Court Committee to make appropriate rules to govern the exercise of this jurisdiction.</p> <p class="rtejustify">But it is not far-fetched to argue that rules on review should largely apply, because where an applicant succeeds in proving that special circumstances exist it is legitimate for the court to grant his request. And for that reason all the factors that this court has decided may constitute special circumstances will come into play, but always bearing in mind, as decided in <strong>Swaniker v. Adotei Twi II (1966) G.L.R. 151 SC</strong> that the categories of what constitute exceptional circumstances are never closed.</p> <p class="rtejustify">Besides, where the decision rests on a patent error of law or procedure, the court may reverse the decision. Thus where the single judge of this court was considered to have taken a wrongful view of rule 76 of C.I. 16 the three-panel judge granted an application brought under article 134(b) of the Constitution and reversed the decision. This was in the case of <strong>Sefa &amp; Asiedu (No. 2) v. Bank of Ghana (No. 2); Gyamfi (No. 2) v. Bank of Ghana (No. 2) (Consolidated) (2013-14) 1 SCGLR 530.   </strong></p> <p class="rtejustify">In the instant case the application is premised on these grounds:</p> <p class="rteindent1 rtejustify">i.      “That the order of the Court of Appeal dated 18<sup>th</sup> March 2016 is a non-executable order and the court erred in ordering the suspension of a non-executable order of the Court of Appeal.”</p> <p class="rteindent1 rtejustify">ii.      “Additionally, respondent has not demonstrated any exceptional circumstances to warrant a grant of an order of suspension because their notice of appeal discloses no arguable points of law. Anyhow, the applicant, on the other hand, has demonstrated exceptional circumstances and should reap the benefits of the judgment given in its favour.”</p> <p class="rtejustify">Both of these grounds have received judicial pronouncements, a number of which have been referred to by counsel for the applicant in their statement of case. In respect of the first ground counsel stated that where there is no executable order, such an order cannot be stayed. The cases they cited in support are <strong>Anang Sowah v. Adams (2009) SCGLR 111; Golden Beach</strong> <strong>Hotels (Gh) Ltd v. Packplus International Ltd (2012) 1 SCGLR 452</strong>. They also stated that the order that is sought to be stayed must have been made by the court whose order is sought to be stayed and not the trial court’s decision or order. They cited in support of this submission the case of <strong>Ghana Football Association v. Apaade Lodge Ltd. (2009) SCGLR 100.</strong> This is because as stated by this court in the case of <strong>Standard Chartered Bank (Ghana) Ltd. v. Western Hardwood Ltd. (2009) SCGLR</strong> <strong>196</strong>, the judgment of a lower court which has been affirmed on appeal remains the judgment of such lower court and not that of the appellate court.</p> <p class="rtejustify">The applicant’s position is that the Court of Appeal merely affirmed the decision of the trial court and so it did not make any order which was capable of enforcement. The order of the trial High Court which is executable is not before this court.</p> <p class="rtejustify">Besides they also argued that the respondent did not raise any matters before the Court of Appeal from which it could be decided that special circumstances exist. It is for these reasons that they believe the single judge wrongly exercised his discretion.</p> <p class="rtejustify">The applicant also argued quite extensively about the grounds for a stay of execution. However potent these arguments may appear to be, we would decline the invitation to make a pronouncement as that is the subject-matter of the substantive appeal before this court, which article 134 of the Constitution does not entitle us to discuss in exercise of this limited jurisdiction.</p> <p class="rtejustify">For their part, the respondent argued that in granting the special leave to appeal, this court was satisfied that “a decision by this court on an important matter of law regarding the point sought to be appealed against would be an advantage to the public.” They also stated that the notice of appeal raises serious grounds of law for this court’s consideration, which influenced the single judge in arriving at his decision, as he found them not to be frivolous. All these were said in response to the argument as regards the appeal being meritorious or otherwise, which we have declined to go into.</p> <p class="rtejustify">On a more relevant note, the respondent, in response to whether the order of the court below was executable or not, deposed in an affidavit in opposition that:</p> <p class="rteindent1 rtejustify">“<em>15. That I verily believe to be true that the plaintiff/appellant/respondent correctly applied to this Honourabe Court to SUSPEND the order of the court below dated 18<sup>th</sup> May 2016 because the said order of the court below was a non-executable order.</em></p> <p class="rteindent1 rtejustify"><em>16. That I verily believe that if the order of the court below dated 18<sup>th</sup> May 2016 was an executable order the plaintiff/appellant/respondent would have applied for a STAY OF EXECUTION and not an order to SUSPEND the said order of the court below.”</em></p> <p class="rtejustify">The respondent has thus agreed with the applicant that the order of the Court was non executable. Therefore in order to get around this apparent hurdle the respondent chose to apply to the court to suspend the order. The first point that comes to mind is whether this course is sanctioned by any rule in the Court of Appeal or this Court. There is none that we can find. The only recourse is the Court’s inherent jurisdiction to do justice. But the inherent jurisdiction can only be invoked where there is no rule or judicial pronouncement to the contrary. The principle in <strong>Anang Sowah v.</strong> <strong>Adams</strong>, supra, is simply that where there is no executable order from the decision of the court immediately below, this court cannot make an order staying execution.</p> <p class="rtejustify">It is noted that the respondent did not apply for a stay of execution, but to all intents and purposes the application to suspend the decision of the Court of Appeal was aimed at achieving that objective. The court will always look at the substance of an application and not the mere words used in describing it. It is most absurd to craft an application for a stay of execution as one to suspend the court’s decision. Rule 20 of C.I. 16 makes provision for a stay of execution of decisions which are executable, so once the original decision is executable, this court will see through any application which is disguised in whatever form to achieve a stay of execution. Indeed paragraphs 15 and 16 of the respondent’s own affidavit did not conceal the deceitful act that they were aiming at achieving a stay of execution in the appellate courts what they had failed to achieve in the trial court.</p> <p class="rtejustify">We do recognise that the existing law that literally debars a party from seeking a stay of non-executable order of the first appellate court may appear to work hardship in certain situations, yet those decisions must be re-visited in appropriate case/s to enable this court to take another look at them. But until then the respondent as well as the single judge and we ourselves, (as the point has not been urged on us), are bound to respect them. We think the application was effectively seeking a stay of execution but was disingenuously disguised as one to suspend the order of the Court of Appeal which they concede was non-executable. The application should have been declined on this point of law and we thus decide that the single judge did not have regard to the existing authorities on the subject and the decision cannot be allowed to stand.</p> <p class="rtejustify">The next point is that there were no special circumstances raised before the single judge which warranted the decision. As pointed out earlier, the categories of what factors, matters or situations would go into a consideration of special circumstances are not closed, yet the court must state on the record why a decision based on special circumstances was taken. The exercise of every discretion must have a basis, factual and/or legal, to sustain it, lest it should assume the character of arbitrariness, which is deprecated by article 296 of the 1992 Constitution.</p> <p class="rtejustify">The entire decision of the single judge does not disclose what factors were taken into account that enabled him to conclude that it was ‘fair’ to grant the application. The record as we have it does not disclose any factors which amount to special circumstances which merited the court’s decision in favour of the respondent. On the contrary, it is apparent from the narration of the facts above that the respondent has embarked upon series of applications to frustrate the applicant from enjoying the fruits of his victory, albeit partially. The fact that the respondent is challenging the basis of the grant of the partial stay of execution is not sufficient to constitute special circumstance, at least not until this court has had the benefit of the full record of appeal.</p> <p class="rtejustify">Given all the circumstances of this application, we consider that apart from the decision of the single judge being contrary to existing authorities, there were also no special circumstances to warrant a departure from the decision of the Court of Appeal as duly constituted. We therefore grant this application and vacate the order of this court dated 1<sup>st</sup> December 2016.</p> <p class="rtecenter"><strong>(SGD)......................</strong></p> <p class="rtecenter"><strong>A. A. BENIN</strong></p> <p class="rtecenter">(<strong>JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>(SGD)......................</strong></p> <p class="rtecenter"><strong>S. A. B. AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>(SGD)......................</strong></p> <p class="rtecenter"><strong>ANIN YEBOAH    </strong></p> <p class="rtecenter">(<strong>JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>KOFI SOMUAH FOR THE DEFENDANT/RESPONDENT/APPLICANT</p> <p>ASONABA DAPAA (MS) FOR THE PLAINTIFF/APPELLANT/ RESPONDENT</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2017%2F10%2FECOBANK%2520VRS%2520%2520%2520ALUMINIUM%2520%2520ENTERPRISE.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2017/10/ECOBANK%20VRS%20%20%20ALUMINIUM%20%20ENTERPRISE.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2017/10/ECOBANK%20VRS%20%20%20ALUMINIUM%20%20ENTERPRISE.pdf</iframe> </div></div></div> Thu, 07 Sep 2017 08:34:28 +0000 admghana 103 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2017/40#comments