PENKRO AND OTHERS vs. KUMNIPAH II [1987]DLSC798

Date	1987-11-26
Suit No.
Citation No.	[1987]DLSC798

SOWAH C.J.

ADADE JSC

TAYLOR JSC

FRANCOIS J.S.C.

ABBAN J.A.

ENOCH D. KOM (WITH HIM HAYIBOR AND MRS CUDJOE) FOR THE APPLICANTS.

R. S. AGBENOTO (WITH HIM DADSON) FOR THE RESPONDENT.

[1987]DLSC798
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													<main id="main" class="content" style="min-height: 60rem" >PENKRO AND OTHERS <o:p></o:p>vs. <o:p></o:p>KUMNIPAH II <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 1 GLR 558<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
26 NOVEMBER 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">

ENOCH D. KOM (WITH HIM HAYIBOR AND MRS CUDJOE,)
FOR THE APPLICANTS. <o:p></o:p>

R. S. AGBENOTO (WITH HIM DADSON) 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 C.J., ADADE, TAYLOR AND FRANCOIS
JJ.S.C. AND ABBAN J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH C.J.<o:p></o:p>This is
an application from the codefendant, Nana Kwakye Penkro, requesting this court
to set aside its judgment dated 22 June 1987 (see Kumnipah II v. Ayirebi
[1987-88] 1 G.L.R. 265, S.C. ante). The pertinent grounds for the prayer were:<o:p></o:p>“17. That
the ruling refusing ‘the application to review a review judgment’ was delivered
on 30 March 1983 by the, Court of Appeal. 18. That notice of appeal to the
Supreme Court was filed on 14 April 1983 and I attach herewith a photocopy of
the said notice marked exhibit A. 19. That I am further reliably informed by
our counsel and verily believe same to be true that in the case of Darke IV v.
Darke IX [1984-86] 1 G.L.R. 481, S.C. the Supreme Court (coram Sowah, Adade,
Taylor JJ.S.C., Edusei and Abban JJ.A.) struck out the appeal of the
plaintiff-appellant because it was filed out of time: judgment had been
delivered on 30 July 1979 and the application for leave to review by the full
bench of the Court of Appeal was filed on 15 August 1979. 20. That the appeal
to the Supreme Court by the respondents is an interlocutory one as the
application in<o:p></o:p><o:p>&nbsp;</o:p>Darke IV
v. Darke IX (supra) and should have been made within fourteen days certain. 21.
That I am sure that if the issue of the appeal being out of time had been
raised this honourable court would have done what it did in Darke IV v. Darke
IX (supra). 22. That I am, however, reliably informed by our counsel and verily
believe same to be true that the issue of lack of jurisdiction and nullity can
be raised at any time. 23. That I am further informed that this honourable
court has power, suo motu or on application, to vacate its own judgment or
order which is void either because it is given or made without jurisdiction or
because it is not warranted by any law or rule or procedure.”<o:p></o:p><o:p>&nbsp;</o:p>In my
view this application though clothed in a different robe is nothing short of
asking this court to look at its judgment again, in other words, to review its
judgment. When the appeal was heard, the applicant had ample opportunity to
raise, if necessary, in limine, the issue presently being canvassed as to
whether the decision of the appeal court was interlocutory or final or that the
appellant should have filed his appeal within fourteen days or three months.<o:p></o:p><o:p>&nbsp;</o:p>If I may
repeat the words of the Earl of Solborne in Boswell v. Coaks (No. 2) (1894) 86
L.T. 365: “Courts should not be ready to permit unsuccessful parties to attempt
to overturn judgments by raising new consideration.” For that reason it is
essential that a party seeking to overturn a judgment demonstrates that he or
she does so only upon footing or matters discovered since judgment was entered.<o:p></o:p><o:p>&nbsp;</o:p>It has
been argued that the judgment was a nullity because the appellant was out of
time. This objection should have been raised in limine when the appeal came on,
or raised in the course of the appeal. Indeed it ought to have been raised in
the appellant’s statement of his case before the Supreme Court.<o:p></o:p>The
applicant waves before us the principle in Mosi v. Bagyina [1963] 1 G.L.R. 337
at 347, S.C. that:<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">“The
power of the court or a judge to set aside any such judgment or order is
derived from the inherent jurisdiction of the court to set aside its own void
orders and it is irrespective of any expressed power of review vested in the
court or a judge; and the constitution of the court is for this purpose
immaterial.”<o:p></o:p>