AFRANIE II vs. QUARCOO AND ANOTHER [1992]DLSC1967

Date	1992-10-20
Suit No.
Citation No.	[1992]DLSC1967

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

AIKINS JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN J.S.C.

J. K. AGYEMANG (WITH HIM PAUL OSEI BOATENG) FOR THE APPLICANT.

AFARI YEBOAH FOR THE RESPONDENTS.

[1992]DLSC1967
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AFRANIE II<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">QUARCOO AND ANOTHER<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 561<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 20
OCTOBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J. K. AGYEMANG (WITH HIM PAUL OSEI BOATENG) FOR THE APPLICANT.<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">

AFARI YEBOAH FOR THE RESPONDENTS. <o:p></o:p>

FRANCOIS, WUAKU, AMUA-SEKYI, OSEI-HWERE, AIKINS, BAMFORD-ADDO AND
HAYFRON-BENJAMIN JJ.J.S.C. <o:p></o:p>

</div>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>The review jurisdiction has come to stay and doubts about its
legitimacy have now been laid to rest by the Constitution, 1992 of the Fourth
Republic. It is accordingly necessary to repeat the parameters for its
exercise. However tedious, its schematic place in the judicial process must be
frequently analysed and dissected to firmly implant the limits of this
jurisdiction.<o:p></o:p>To start with, a review is only legitimate where exceptional
circumstances exist which if unredressed would perpetuate a miscarriage of
justice; but a review is not another avenue for an appeal. Thus in A/S Norway
Cement Export Ltd. v. Addison [1974] 2 G.L.R. 177 at 182, C.A. (full bench)
Apaloo J.A. (as he then was) restated the limits of this jurisdiction as
follows:<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 jurisdiction conferred on the full bench is to review and not
to entertain an appeal from the ordinary bench. Indeed an appeal from the
ordinary bench to the full bench would only, in effect, mean an appeal from one
panel of judges to another panel of the same court. Accordingly, a considerable
body of case law has drawn a distinction between a review and an appeal and
stressed that the former should not be taken as intending the latter and should
not be dealt with as such. Such cases as Adusei v. Marfo, Supreme Court, 24
February 1964, unreported; Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C.;
Aschkar v. Karam [1972] 1 G.L.R. 1, C.A. and Benneh v. The Republic [1974] 2
G.L.R. 47, C.A. (full bench) are typical of these. We accept this as a valid
distinction and hold that although both may achieve the same result, they are
conceptually different.”<o:p></o:p>In my view, the distinction is of paramount importance. If
disregarded, an enhanced bench might well assume it possesses limitless power
to review the correctness of a decision on the law, a function which is
permissible only when a matter is on appeal and not otherwise. It follows that
the repetition of previous arguments and the revisit to past scenarios cannot
properly lay a foundation for review. In my view, where the same grounds are
canvassed again the exercise ceases to be a review. It is the appeal process
which is being invoked and substituted for the review exercise, twice too often.
This must be decried.<o:p></o:p>A reference to decided authority shows that a large number of
review cases decided by the courts ended by panel members exercising their
vote, not on a recantist view of the law they previously held, but rather on
the single and only viable test, namely the existence of exceptional
circumstances, sufficiently demonstrated to compel a redress to prevent the
perpetuation of a miscarriage of justice.<o:p></o:p>Put differently, judges have retained their perception of the law,
but have resisted the temptation of letting it blur the important exercise of
discerning whether the applicant had passed the review test stated above. Any
other rationalisation of the review process would transform it subversively
into, and confer upon it, an appeal jurisdiction.<o:p></o:p>The most objectionable aspect of this is the creation by
implication of a higher tier appellate jurisdiction over colleagues and allow
pronouncements from an enhanced bench to extol this superior hierarchy. The
history of the review jurisdiction shows that the legislature has never
contemplated conferring on the review bench that superiority. A couple of
illustrations from other jurisdictions may not be out of place here. In Jones
v. Secretary of State for Social Services; Hudson v. Same [1972] 1 All E.R.
145, H.L. a worker sought disablement benefit arising from myocordial
infarction suffered from lifting a heavy piece of metal in the course of his
work. The issue could be decided by recourse to the authority of Minister of
Social Security v. Amalgamated Engineering Union (Dowling’s Case) [1967] 1 All
E.R. 210. Opinion was however divided as to the correctness of that decision
and the House of Lords was invited to distinguish, reconsider or overrule that
decision. The argument was rejected by Lord Reid who said at 150: “But even if
I thought now that Dowling’s case was wrongly decided I would still be of
opinion that on grounds of public policy it ought not to be reconsidered.” It
was Lord Reid’s further view, that what was involved was the construction of a
statute. He said at 149:<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">“In very many cases it cannot be said positively that one
construction is right and the other wrong. Construction so often depends </main>