BISI AND OTHERS vs. KWAYIE [1988]DLSC724

Date	1988-11-08
Suit No.
Citation No.	[1988]DLSC724

TAYLOR JSC

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI J.S.C.

OSEI-HWERE J.A.

ENOCH KOM (WITH HIM GEORGE KOM) FOR THE THIRD TO SEVENTH DEFENDANTS-APPLICANTS.

W. Y. OPPONG FOR THE PLAINTIFF-RESPONDENT.

[1988]DLSC724
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													<main id="main" class="content" style="min-height: 60rem" >BISI AND OTHERS <o:p></o:p>vs. <o:p></o:p>KWAYIE <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 2 GLR 295<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
8 NOVEMBER 1988<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 KOM (WITH HIM GEORGE KOM) FOR THE THIRD TO
SEVENTH DEFENDANTS-APPLICANTS. <o:p></o:p>

W. Y. OPPONG FOR THE PLAINTIFF-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">

TAYLOR, FRANCOIS, WUAKU, AMUA-SEKYI
JJ.S.C. AND OSEI-HWERE J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C<o:p></o:p>This is
an application for a review of the judgment of this court in Bisi v. Tabiri
alias Asare [1987-88] 1 G.L.R. 360, S.C. delivered on 25 June 1987 in which the
claim of the respondent herein was sustained and the appeal by the applicants
was dismissed. Reasons for the said judgment were given on 28 July 1987. The
judgment was a three to two majority judgment in favour of the respondent and
by the said judgment a land with buildings therein was declared family property
and its disposal by a testator whose executors and children are the applicants
herein was consequently adjudged incompetent.<o:p></o:p><o:p>&nbsp;</o:p>The
majority judgment was given by Osei-Hwere J.A. and it was concurred in by Wuaku
and Amua-Sekyi JJ.A. (as they then were).<o:p></o:p>Francois
J.S.C. and I took a minority view, which we still hold, that the land with the
buildings was the self-acquired property of the testator and in our opinion its
disposal by the testator in his will was therefore unexceptionable. The
consideration which led us to this conclusion is contained in elaborate reasons
which we gave in our dissenting opinions on 28 July 1987. Speaking for myself,
I am firmly of the view that those reasons amply justify our dissenting conclusion
that the testator was entitled to dispose of the land and the buildings in his
will. The very important point to note however is that this view has not found
favour with the majority of this court, and it is the implication of this
conflict that is the gravamen of the present application.<o:p></o:p>When many
minds participate in considering a problem, so many subtle influences dictate
the attitude of each participant that it is not unusual for the parties to come
to diametrically opposed views. In such circumstances, no matter how right an
individual considers his opinion to be, he must nonetheless have the
intellectual discipline to appreciate that no one has a monopoly of wisdom and
that what he so jealously holds to be an absolute truth may very well not be
real truth. The much quoted aphorism: two heads are better than one, is not an
idle precept. After all judges and counsel are not necessarily witnesses to the
facts in controversy in litigations that come before them in courts.<o:p></o:p><o:p>&nbsp;</o:p>In our
system of adjudication the majority view of a plural bench of a court
represents the binding judgment of the court, even if it can subsequently be
demonstrated to be vulnerable to attacks. The principle is quite clear and a
number of authorities referred to in Fosuhene v. Pomaa [1987-88] 2 G.L.R. 105,
SC supports it. Indeed, it is a common law principle that a judgment of a court
of competent jurisdiction, even if it contains an error of law or fact, is of
full binding force until it is reversed by the due process of the law. Thus in
MacCarthy v. Agard [1933] 2 K.B. 417, C.A., the defendant was sued and judgment
was obtained against her as Mrs A, a married woman. In fact, the defendant was
not Mrs A or a married woman. She was Mrs W, a widow, but she kept her real
name and status from the court and actively by means of misrepresentation led
the court to make an order which it would not have made, if her true status was
known. On an application to amend the judgment, Greer and Romer L.JJ., with
Scrutton L.J. dissenting, held that there was no jurisdiction in the lower
court or the Court of Appeal to amend the judgment. They however granted leave
for an extension of the time within which to appeal from the order of the lower
court, so that the amendment could be effected by the due process of the law.
See also Bright v. Sellar [1904] 1 K.B. 6, C.A. and Ainsworth v. Wilding [1896]
1 Ch. 673.<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me that to succeed in having a judgment of the Supreme Court reversed on
review, the applicant must show exceptional circumstances and he must show the
said circumstances to be of such a nature as to convince the panel of the
Supreme Court or a majority thereof that it is right for the judgment to be
reversed in the interests of justice. This will be consistent with our decision
in Fosuhene v. Pomaa (supra). It will also be in accordance with the
constitutional mandate so wisely given to us in article 116 (3) of the
Constitution, 1979.<o:p></o:p><o:p>&nbsp;</o:p>