Nsiah v. Amankwa & Ors. ; Nsiah v Mansah & Ors. (Consolidated) [1997-1998] 2 GLR 236.

NSIAH v AMANKWAH AND OTHERS; NSIAH v MANSAH AND OTHERS (CONSOLIDATED) [1997-1998] 2 GLR 236.

SUPREME COURT

AIKJNS, BAMFORD-ADDO, CHARLES HAYFRON-BENJAMIN, AMPIAH, ACQUAH, ATUGUBA AND SOPHIA AKUFFO JJSC

 

STATUTORY REF.
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Aikins JSC. This is an application for review of this court’s ruling of 12 November 1996 dismissing the application by the plaintiff-applicant (hereinafter referred to as the applicant) for special leave to appeal to the Supreme Court against the decision of the Court of Appeal which allowed the appeal of the defendant-appellant-respondents (hereinafter referred to as the respondents) against the judgment of the

Circuit Court, Kumasi.

 

The applicant had secured judgment in the Circuit Court, Kumasi in an action for recovery of possession of certain rooms

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occupied by the respondents in house No Plot 8, Block 11 Manhyia, Kumasi on 6 August 1993.

Dissatisfied with the judgment, the respondents appealed to the Court of Appeal which allowed the appeal on 9 November 1995 and set aside the judgment of the circuit court.

The applicant was aggrieved by the decision of the Court of Appeal and appealed to the Supreme Court. The respondents filed a motion on notice to dismiss the appeal as incompetent and void because as the case originated in the circuit court, ie a court below the High Court, the appeal to the Supreme Court required leave of the Court of Appeal in accordance with section 4(l)(b) of the Courts Act, 1993 (Act 459). At the hearing of the case, counsel for the applicant readily conceded the objection raised, and in the result the appeal was struck out on 19 March 1996. Still not satisfied, the applicant applied to this court for special leave under the provisions of article 131(2) of the Constitution, 1992. The application was supported by a 21-paragraphed affidavit setting out in full detail the facts of the whole case, with copies of the building plan, the building permit, the judgment of the Court of Appeal dated 9 November 1995 and respondents’ motion on notice for interim injunction filed in the registry of this court, attached.

The respondents raised a preliminary legal objection to the application on the grounds that this court had no jurisdiction to entertain the application either under the Constitution, 1992 or Act 459. The court overruled the preliminary legal objection by a split decision of three to two, and proceeded to dismiss the application for special leave. It is against the ruling dismissing the application for special leave that the applicant is before the court seeking review of the court’s decision.

Learned counsel for the applicant has argued in his statement of case filed on 26 May 997 that the decision of the court has occasioned a substantial miscarriage of justice as his application for special leave was dismissed without his being heard on the merits of the application. He submits that the application for special leave contained not less than nine weighty proposed grounds of appeal against the decision of the Court of Appeal, which raised issues of land law of considerable public importance on which the Supreme Court should not deny itself the golden opportunity to examine and give authoritative pronouncement upon. Learned counsel argues in the last paragraph of his statement of case:

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“This dispute is over the ownership of a 40-roomed house in Kumasi built upon a plot of land, the lease on which is in the name of the applicant dated 10 October 1957 between the Asantehene and the applicant for 99 years. The 40-roomed house was built in accordance with Building Permit No 232/58-59 dated 18 December 1958, so that both the land and the house stand in the name of the appellant. If indeed the house was constructed by the deceased husband and father of the respondents with his own money as contended by the respondents and not with applicant’s own money, considering the fact that the deceased and the applicant were uterine brother and sister whose personal law of inheritance was matrilineal at the time the house was being put up, and indeed the appellant could inherit the deceased on intestacy, could the presumption of gift not apply to this case? The onus which the Court of Appeal sought to place on the applicant to prove the gift was misplaced.”

The facts contained in the passage above are a repetition of those in the affidavit of the applicant attached to her motion paper. I remember very well that when learned counsel for the applicant was replying to the preliminary objection, he touched on the merits of his application for special leave to appeal, but counsel for the respondents did not reply to his argument.

Even if the application contained not less than nine weighty grounds of appeal against the decision of the Court of Appeal, as learned counsel says, the application does not contain any reason why it is so special. All she did was to hammer on the merits of the appeal. This is what may be required of an application for normal leave. In my view, special leave must go a step further and give good and convincing reasons why the application is special.

The principles on which special leave will be granted are contained in Nyimoh v Dadzie [1962] 1 GLR 327 which, though a High Court decision, this court adopted in Dolphyne (No 2) v Speedline Co Ltd [1996-97] SCGLR 373. Scott J who delivered the decision in Nyimoh v Dadzie (supra) enumerated these principles as follows:

(a) that there is a prima facie error on the face of the record; or

(b) a general principle of law has arisen for the first time; or

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(c) a decision of the Supreme Court on the point sought to be appealed against will be advantageous to the public.

Neither the statement of case filed on behalf of the applicant by her counsel nor the profuse grounds of appeal contained in her affidavit in support of her application for special leave to appeal contained any of the prerequisites for the grant of special leave stated above. Moreover, I am of the view that the court is not bound to listen to oral arguments when full arguments of counsel are contained in the statement of case or the affidavit supporting the motion paper or both. At law, the court can study the papers filed, take a decision in chambers and then give judgment in court without further oral argument.

I think the rules that apply to ordinary civil appeals equally apply to leave to appeal under the circumstances. The applicable rule is rule 23 (1) of the Supreme Court Rules, 1996 (CI 16) which states:

“23. (1) The Court may, after considering the statement of the case of each of the parties to the appeal and any other papers or arguments filed by the parties, decide to determine the appeal and give judgment in Court on a fixed date without further argument or may appoint a date on which the parties shall appear before the Court for the hearing of further argument.”

(The emphasis is mine.) It is therefore to me perfectly proper for the court that heard the application in the first instance to dismiss it without entertaining further oral arguments in open court. I think the application was unmeritorious. For the above reasons, I would dismiss the application for review.

Bamford-Addo JSC. I agree that the application be dismissed.

Charles Hayfron-Benjamin JSC. I also agree that the application be dismissed.

Ampiah JSC. I have read the ruling of this court dated 12 December 1996. I am satisfied that in his attempt to persuade the court to accept his application for special leave, counsel touched on the merits of his appeal; consequently the court ruled on the merits. In the circumstances, I agree that his application for review

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must be dismissed as no useful purpose would be achieved by such an application.

Acquah JSC. I have read beforehand the ruling just delivered by my brother Aikins JSC and I agree with him that the application be dismissed.

Atuguba JSC. I add my voice to the dismissal of this application. However, in reiterating that the applicant genuinely failed to satisfy the requirements for special leave to appeal to this court, I would still observe, as I did in my ruling in this case, dated 12 December 1996, that mere prima facie error on the face of the record is not a sufficient ground for special leave to appeal to this court. If such a ground was accepted for the grant of special leave in the case of Nyimoh v Dadzie [1962] GLR 327, that was justifiable having regard to the particular provision of section 8 of the then Courts Act, 1960 (C A 9). That provision did not enjoy a background of another provision allowing for applications for ordinary leave to appeal, in contradistinction to which this court held in Khoury v Mitchual [1989-90]2 GLR 256, SC, as stated in the headnote, holding (3), that:

“although an application for normal leave must show some merits in the intended appeal, an application for special leave must do more than that: it must also give good and convincing reasons why the application was special.”

In that case some of the opinions put more emphasis on the factual excuses for a tarried application, but the opinion, especially of Taylor JSC persuades me that the requirement that an application for special leave to appeal must be demonstrated to be special extends also to the nature of the merits in the intended grounds of appeal. At 269 of the report, Taylor JSC stated:

“. . . the applicant must apply for special leave and because it is special leave, he must give reasons why he should be specially given an indulgence which is not open to all other applicants.”

I have demonstrated in my said ruling dated 12 December 1996 that an applicant for ordinary leave to appeal at the Court of Appeal would not, having regard to the circumscribed language of article 31(1)(b), be granted such leave by merely demonstrating

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prima facie error on the face of the record. If, as is necessarily implied in the requirement of special leave, an applicant has a heavier onus to discharge, he certainly cannot do so by demonstrating that he has lighter grounds of appeal, even though they reveal prima facie error on the face of the record.

Be that as it may, as observed by my lord, the President, Aikins JSC, the applicant has strenuously argued that if he were heard on the merits of his earlier application for special leave, he would have demonstrated certain legal grounds which he deems would have justified this court in granting his said application. But as my lord, the President, has further observed, all those grounds were contained in the affidavit in support of that application and these formed the basis of this court’s adverse ruling, review of which he now seeks.

In these circumstances, the applicant’s grievance relates more to the form in which the said motion ought to have been moved and argued than to the substance of the matter. In such a situation, as Kingsley-Nyinah JA said in Addison v A/S Norway Cement Export Ltd [1973] 2 GLR 151 at 187, CA

“It is not for nothing that: ‘courts of equity made a distinction in all cases between that which is matter of substance and that which is matter of form; and if it finds by insisting on the form the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form and therefore defeat the substance.’ ”

(The emphasis is mine.) It is a platitude that the courts, as a general principle, will not allow a party to take an unfair advantage of a rule of law whether statutory or otherwise. As Apaloo (as he then was) said in Amankwa v Akwawuah [1962] 1 GLR 324 at 326:

“. . . this case exemplifies the perennial conflict that is said to exist between law and justice. I am perfectly satisfied that the plaintiff as a matter of law is entitled to take the point of jurisdiction and . . . his argument is unanswerable. I understand it to be good law that in certain cases a person may not be allowed to insist on his strict legal rights if it would be unjust to allow him to do so, having regard to the dealings which have taken place between the parties . . . Sometimes it is a plaintiff who is not allowed to insist on his strict legal rights,

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at other times, it is the defendant. In the case of Djomoa v Amargyei [1961] GLR 170 the Supreme Court on similar principles refused to allow a defendant to rely on the provisions of the Concessions Ordinance, Cap 136 (1951 Rev) which provided him with a cast iron defence against the plaintiff on the ground that it would be unjust to permit him to do so.”

Different results have been reached in applying this principle in similar jurisdictional circumstances. But the main theme of this principle keeps marching on and in the recent decision of this court in Oklikah v Amuzu [1998-99] SCLGLR 141 the principle was extensively discussed and applied. In the circumstances of this case as admirably set out by my lord the President, I would disentitle the applicant from relying on the arid technical complaint that he was not, in accordance with strict ceremony, heard viva voce on matters he had extensively put before this court in writing and which were amply considered by the court.

The circumstances of this application attract the application of the maxim de minimis non curat lex. As
was stated by my sister Sophia Akuffo JSC in her lucid lead ruling of this court in Okofoh Estates Limited v Modern Signs Limited [1996-97] SCGLR 224 at 230:

“As was recently confirmed in this court by my learned brother Kpegah JSC in the case of Republic v Owusu alias Buor; Ex parte Anane alias Baffour II, Tafohene, Supreme Court, 25 July 1995, unreported, the maxim de minimis non curat lex remains as applicable today as it ever was Furthermore, as has been emphasised time and again by this and other courts. It is the duty of courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities.”

It was in that frame of thought that Adade JSC in Nasali v Addy [1987-88] 1 GLR1 43 at 150, SC, in taking into consideration certain exhibits in the case, said with characteristic mental dynamite: “. . . I must say that this aspect of the matter was not addressed by either counsel in this appeal. But this court has the record and all the evidence at its disposal and is entitled to make its own inferences and to interpret the exhibits tendered.” This

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view has been applied by my lord Aikins JSC in Oklikah v Amuzu (supra).

It is clear from all the above considerations (which could have been further multiplied), that the applicant for review in this case seeks to exempt herself from the highly restrictive requirements of the review jurisdiction of this court. These, mainly, are that there must be exceptional circumstances revealing a fundamental or basic error which in the interest of justice requires correction. In the apt words of Adade JSC in Mechanical Lloyd Assembly Plant Ltd v Nartey [1988-89] 2 GLR 598 at 603-604, SC:

“But the mere fact that a judgment can be criticised 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 may have inadvertently been committed by the court, which error must have occasioned a gross miscarriage of justice. The review jurisdiction is not intended as a try on by a party after losing an appeal; nor is it an automatic next step from an appeal neither is it meant to be resorted to as an emotional reaction to an unfavourable judgment.”

Upon these words of that formidable judge, I also dismiss this application which is rooted, if I may say so, without disrespect, in and, puritanical, procedural fundamentalism. There is no reason why the ruling of this court dated 12 December 1996 which rendered the applicant’s motion for special leave to appeal res judicata should not pro veritate accipitur.

Sophia Akuffo JSC. I also agree that the application be dismissed.

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