REPUBLIC vs. HIGH COURT, ACCRA AND ANOTHER EX PARTE DARKE XII AND ANOTHER (NO 2) [1992]DLSC4976

Date	1992-11-17
Suit No.	[1992 – 1993] 3 G B R 1230 – 1263 S C.
Citation No.	[1992]DLSC4976

ADADE JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

AIKINS JSC

WIREDU JSC

HAYFRON-BENJAMIN JSC

AMUAH JA

KPEGAH JA

BROBBEY JA

S KWAMI TETTEH FOR THE APPLICANTS.

B J DA ROCHA (WITH HIM ERIC GYAMSON) FOR THE RESPONDENTS.

[1992]DLSC4976
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH COURT, ACCRA AND
ANOTHER EX PARTE DARKE XII AND ANOTHER (NO 2)<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1992 – 1993] 3 G B R 1230 – 1263 S
C.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 17 NOVEMBER 1992<o:p></o:p>

B
J DA ROCHA (WITH HIM ERIC GYAMSON) 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 1.0pt 0in">

ADADE
JSC, AMUA-SEKYI JSC, OSEI-HWERE JSC, AIKINS JSC, WIREDU JSC, HAYFRON-BENJAMIN
JSC, AMUAH JA, KPEGAH JA, BROBBEY JA<o:p></o:p>

</div>ADADE JSC. <o:p></o:p>On
20/10/92 we dismissed this application for review, but reserved the reasons for
today. This court has, time and again, in a number of rulings, tried to explain
the circumstances in which the court will entertain applications for review. It
seems we have not yet succeeded in getting litigants to appreciate that a
review is not a matter of course. As I see it, a decision by this court, once
given, will, as a rule, not be changed. However, to every rule there is an
exception, so goes the saying. A party must have to make an exceptional case if
he is to succeed in an application for review. Everything apart, that
exceptional case must convince the court that there has been a miscarriage of
justice. The decision we gave on the 30/3/92 was to the effect that:<o:p></o:p>(a)
the judgment of the High Court presided over by Omari-Sasu J, dated 22/2/89 and
of the Court of Appeal dated 19/7/90 confirming it, are null and void;<o:p></o:p>(b)
the decision of the High Court presided over by Francois J, dated 11/11/75 and
of the Court of Appeal dated 30/7/79, are also null and void for want of
jurisdiction on the ground that,<o:p></o:p>(c)
the matter before the High Court presided over by Francois J was a stool land
boundaries settlement issue, and was cognisable only by the Stool Lands
Boundaries Settlement Commission, to which it ought to have been referred. We
accordingly referred it to that Commission, via the Attorney-General.<o:p></o:p>Each
of these decisions was a split decision, in each case by a majority of 4 to 3.
It is not necessary to state which justices were in which camp in relation to
which decision; the decisions remained the decision of the original court. For
this review, two new justices have been added to the panel of seven judges.
Their presence has not had any effect on the decision of 30/3/92, as both are
of the opinion that the decision by Francois J is void.<o:p></o:p>It
must be pointed out that the matter had come before this court in the first
place as a result of an application for certiorari to quash the decisions
recited in (a) above only. It is said in the instant application for review
that we should have stopped with the decision on (a) supra, and not proceeded
to decide (b) and (c). This may well be so. But if indeed the matter before
Francois J was basically a stool lands boundaries issue, then Francois J would
not have had jurisdiction, and his decision, as that of the Court of Appeal
arising from it, would be void. This court, on becoming aware of it, could, on
its own motion, set it aside. The foundation for the decision of the Court of
Appeal dated 30/7/79 would have collapsed, and setting aside that decision
would be a mere formality. Having set aside all the decisions in the case from
Francois J delivered in 1975, and of the Court of Appeal dated 1990, it
appeared that there was nothing before any court to refer to the Stool Lands
Boundaries Settlement Commission, thus making the decision in (c) above, on the
face of it, not easy to defend. It would seem that it might have been better to
have sent the case back to the High Court for the High Court of take
appropriate measures. However, this court sitting in an appellate or
supervisory capacity, may exercise any powers which a court from which a
particular case has come, could have exercised. Accordingly, referring the
matter ourselves rather than sending it down for the High Court to discharge
the same function, cannot be said to have occasioned a miscarriage of justice.
On the contrary, it has saved costs and cut down on delays. I do not see that
the applicants have made an exceptional case for a review. That is why I held the
view that notwithstanding the fact that each of the decisions above was a split
decision, the application could not, on principle succeed.<o:p></o:p><o:p>&nbsp;</o:p>AMUA-SEKYI JSC. <o:p></o:p>The
decision of the court that the dispute between the Peki and Tsito stools be
referred to the Stool Lands Boundaries Settlement Commissioner for adjudication
was fair. After all, it was the Tsito stool which, in the earlier proceedings,
had argued that Francois J had no jurisdiction to entertain the suit. That the
objection was overruled does not, in my view, give it an excuse to seek to
benefit from the wrongful assumption of jurisdiction by the High Court and the
Court of Appeal.<o:p></o:p>Counsel
defends his position by arguing that as on 30 July 1979, the Court of Appeal
was the highest court of the land and its decision cannot be challenged. If
counsel is right, then a void judgment of the highest court of the land can
never be set aside.<o:p></o:p>Counsel
was being less than honest with himself when he submitted that by granting his
application to set aside the later judgments I had “preserved” the earlier ones
on which his clients relied and brought [them] under protection of the court.
As counsel well knows, in determining whether a court had jurisdiction to deal
with a case and deliver a judgment the question whether the judgment as
delivered was sound is irrelevant. In Republic v High Court, Accra ex parte
Laryea [1989-90] 2 GLR 99, this court put it thus:<o:p></o:p>“By jurisdiction is meant, of course,
the power or authority of the court or judge to give a decision on the issue
before it; and, in this regard the correctness or otherwise of the decision is
irrelevant: for, if there is no jurisdiction, the decision will be quashed
although it be right.”<o:p></o:p>Far
from such a position being self-contradictory or ambivalent, it is what the law
requires as, indeed, happened in Anane v Efriyea (1940) 6 WACA 169. In that
case, the defendant, in an action in the court of the Chief Commissioner for
Ashanti, ra</main>