AFRANIE II vs. QUARCOO AND ANOTHER [1992]DLSC5035

Date	1992-10-20
Suit No.	[1992 – 93] 4 G B R 1451 - 1510 S C.
Citation No.	[1992]DLSC5035

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

AIKINS JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

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

AFARI YEBOAH FOR THE RESPONDENTS.

[1992]DLSC5035
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													<main id="main" class="content" style="min-height: 60rem" >AFRANIE II<o:p></o:p>vs.<o:p></o:p>QUARCOO AND ANOTHER<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 – 93] 4 G B R 1451 - 1510 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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 20 OCTOBER 1992<o:p></o:p>

AFARI
YEBOAH 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">

FRANCOIS
JSC, WUAKU JSC, AMUA-SEKYI JSC, OSEI-HWERE JSC, AIKINS JSC, BAMFORD-ADDO JSC,
HAYFRON-BENJAMIN JSC<o:p></o:p>

</div>RANCOIS JSC. <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 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 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 GLR 177 Apaloo JA restated the limits of this jurisdiction at
p 182 as follows:<o:p></o:p>“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 24 February 1964, SC, Swaniker v Adotei Twi II [1966] GLR 151,
SC, Aschkar v Karam [1972] 1 GLR 1, CA and Benneh v Republic [1974] 2 GLR 47
(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.<o:p></o:p>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 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 of appellate jurisdiction over colleagues that 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.<o:p></o:p>A
couple of illustrations from other jurisdictions may not be out of place here.
In Jones v Secretary of State [1972] 1 All ER 145, a worker sought disablement
benefit arising from myocardial 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 for Social Security v Amalgamated Engineering Union
(Dowling’s Case) [1967] 1 All ER 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 page 150:<o:p></o:p>“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.”<o:p></o:p>It
was Lord Reid’s further view, that what was involved was the construction of a
statute. He said at page 149:<o:p></o:p><o:p>&nbsp;</o:p>“In very many cases it cannot be said
positively that one construction is right and the other wrong. Construction so
often depends on weighing one consideration against another. Much may depend on
one’s approach. If more attention is paid to meticulous examination of the
language used in the statute the result may be different from that reached by
paying more attention to the apparent object of the statute so as to adopt that
meaning of the words under consideration which best accord with it.”<o:p></o:p>Lord
Pearson said at p 174 of the report:<o:p></o:p>“There were two conflicting views and
each of them was tenable. That which ultimately became the minority view was
taken by three members of the Divisional Court, by one member of the Court of
Appeal and by one of my noble and learned friends in this House. The view which
became the majority view was taken by two members of the Court of Appeal and by
four of my noble and learned friends in this House. On a count of judicial
voices one might say the slender majority of six to five is not su</main>