DARKE IX vs. DARKE IV [1985]DLSC903

Date	1985-07-30
Suit No.
Citation No.	[1985]DLSC903

SOWAH JSC

ADADE JSC

TAYLOR J.S.C

EDUSEI JA

ABBAN J.A.

JOE REINDORF (WITH S. KWAME TETTEH AND N. KUENYEHIA) FOR THE APPELLANTS.

E. D. KOM (WITH HIM AKYEA DJAMSON DR. ERIC DJAMSON AND FRANK ADEEKU) FOR THE RESPONDENT.

[1985]DLSC903
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DARKE IX <o:p></o:p>

{SUPREME COURT} <o:p></o:p>

[1984-86] 1 GLR 481<o:p></o:p>

DATE:
30 JULY 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

JOE REINDORF (WITH S. KWAME TETTEH AND N.
KUENYEHIA) FOR THE APPELLANTS. <o:p></o:p>

E. D. KOM (WITH HIM AKYEA DJAMSON, DR. ERIC
DJAMSON AND FRANK ADEEKU) FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SOWAH, ADADE AND TAYLOR JJ.S.C. EDUSEI AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE J.S.C.<o:p></o:p>On 1
March 1982 this court made an order returning to the Court of Appeal a case
which had been put before us as an appeal but which we declined to hear. The
said order was in the following terms:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“We
consider that the issue as to the competence of the application is a matter
that is governed by section 4 of the First Schedule of the Constitution, 1979.
This provides that: ‘4. All proceedings pending before any court immediately
before the coming into force of this Constitution may be proceeded with and
completed in that court notwithstanding anything to the contrary contained in
this Constitution.’<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">We would
want to stress the importance and significance of the words ‘notwithstanding
anything to the contrary contained in the Constitution.’ They make section 4
cut across article 137, as indeed it cuts across article 114 (5) of the
Constitution, 1979. It seems to us that the operation of those provisions would
require that the ordinary bench of the Court of Appeal as it existed
immediately before 24 September 1979 would be competent to deal with the
application now before this court. We would therefore order that the
application be heard by that court, that is to say the ordinary bench of the
Court of Appeal, being the court before which the application was pending
immediately before the Constitution, 1979 came into force.”<o:p></o:p><o:p>&nbsp;</o:p>For a
proper appreciation of this order, and in view of certain arguments advanced
before us in this appeal by Mr. E. D. Kom, leading counsel for the
plaintiff-respondent (hereinafter referred to simply as the plaintiff) some
background information is requisite.<o:p></o:p><o:p>&nbsp;</o:p>The case
itself began in 1957. For the purposes of this opinion, however, the obvious
starting point is 30 July 1979. On that date, the Court of Appeal delivering a
judgment in open court allowed the appeal brought by the defendants; set aside
the judgment of the High Court, Ho delivered by Francois J. (as he then was);
dismissed the plaintiff’s claim; gave judgment for the defendants on their
counterclaim; and made certain consequential orders. The decision of the Court
of Appeal as well as the consequential orders were recorded in the record book.
The transcript of the opinions read by the three justices took some time to be
ready, a fact which to me is irrelevant to the issues for determination here.<o:p></o:p><o:p>&nbsp;</o:p>At the
time, i.e. July 1979, there was no Supreme Court. The court system terminated
with the Court of Appeal at its apex, having an ordinary bench, and a full
bench with a review jurisdiction, a situation which is already familiar to the
practising fraternity.<o:p></o:p><o:p>&nbsp;</o:p>Seeking
to take advantage of the review jurisdiction of the full bench, the plaintiff
on 15 August 1979 filed in the Court of Appeal an application for leave to
apply for review on grounds of law, under section 3 (2) (a) of the Courts
(Amendment) Decree, 1972 (N.R.C.D. 101). The application was a document of 24
close-typed foolscap paper making a well-argued case for a review, and ending with
the prayer; “In view of the above reasons I pray for leave for review to be
granted plaintiff-respondent-applicant.” (The emphasis is mine.) And the
application was not by way of a motion; it was j</main>