KUMNIPAH II vs. AYIREBI AND OTHERS [1987]DLSC777

Date	1987-06-22
Suit No.
Citation No.	[1987]DLSC777

SOWAH C.J.

FRANCOIS J.S.C.

ABBAN JA

WUAKU JA

AMUA-SEKYI J.A

TSATSU TSIKATA (WITH HIM R S AGBENOTO) FOR THE APPELLANTS.

QUAYE (WITH HIM FREMPONG-BOADU) FOR THE RESPONDENTS

[1987]DLSC777
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													<main id="main" class="content" style="min-height: 60rem" >KUMNIPAH II <o:p></o:p>vs. <o:p></o:p>AYIREBI AND OTHERS <o:p></o:p>[SUPREME COURT, ACCRA.]<o:p></o:p>[1987-88] 1 GLR 265<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
22 JUNE 1987<o:p></o:p>

</div>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">

TSATSU TSIKATA (WITH HIM R S AGBENOTO) FOR THE
APPELLANTS. <o:p></o:p>

QUAYE (WITH HIM FREMPONG-BOADU) FOR THE
RESPONDENTS<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 C.J., FRANCOIS J.S.C., ABBAN,
WUAKU AND AMUA-SEKYI JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH C.J.<o:p></o:p>I have
had the opportunity of reading the judgment of my brothers and have agreed with
them that the appeal be allowed. However, I wish to say a few words as I am
concerned in finding the basis of the assumption of jurisdiction by the full
bench of the Court of Appeal in 1969.<o:p></o:p><o:p>&nbsp;</o:p>The
appeal has had a long and chequered history; the cause of it was the purported
interference by the full bench of the Court of Appeal on 30 July 1969, nearly
two years after the Supreme Court under the Republican Constitution, 1960 had
delivered judgment in the case.<o:p></o:p><o:p>&nbsp;</o:p>It must
be recalled that when the action was initiated in the High Court, Kumasi the
superior courts of Ghana derived their creation from the Republican
Constitution, 1960. Article 41 (2) of the said Constitution provided for the
establishment of the Supreme Court and a High Court which were the superior
courts of Ghana. Article 42 (1) further provided that the Supreme Court was the
final Court of Appeal, and the court was given such appellate and other
jurisdiction as were provided for by law.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment of the High Court was delivered on 25 January 1963. At the time, the
appropriate appellate court was the Supreme Court. That court heard the appeal,
allowed it, set aside the judgment of the High Court and gave judgment for the
applicants herein, then the appellants (see Kumnipah II v. Ayirebi [1966]
G.L.R. 627, S.C.). By the Constitution, 1960 the final court of the land had
delivered its verdict.<o:p></o:p><o:p>&nbsp;</o:p>It is not
clear how the full bench of the Court of Appeal became seised of a matter which
had completely been disposed of before its creation. However the ruling of the
full bench gave an indication of the source of its jurisdiction. For after
reciting the history of the action, the court, inter alia, stated that
“Dissatisfied with the judgment the applicants applied for a review under the
provisions of paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84).”<o:p></o:p><o:p>&nbsp;</o:p>Paragraph
7 of N.L.C.D. 84 established the jurisdiction of the Court of Appeal at the
time. That Decree created a Court of Appeal with two divisions: the ordinary
court and the full bench. But paragraph 7 (2) of the Decree circumscribed the
jurisdiction of the full bench to:<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">“(a) a
review and determination of a decision of an ordinary bench of such Court—(i)
upon a question of law alone; and (ii) upon an ordinary or full bench of such
court giving leave for such review and determination; (b) a review and
determination of any other decision of an ordinary bench of such Court where it
appears to a full bench of such Court that there has been a miscarriage of
justice.”<o:p></o:p><o:p>&nbsp;</o:p>The full
bench was a new creation under N.L.C.D. 84 and was not in existence at the date
when the Supreme Court delivered its judgment. Cases pending before the Supreme
Court at its abolition were provided for in paragraph 87 (1) of the
transitional provisions. That provision provided that every case pending before
the Supreme Court immediately before the commencement of the Decree should be
continued and concluded in the</main>