ODONKOR AND OTHERS vs. AMARTEI (NO 2) [1993]DLSC4888

Date	1993-02-09
Suit No.	[1992-93] 2 G B R 653 – 674
Citation No.	[1993]DLSC4888

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

E D KOM WITH HIM D A APONSAH FOR THE APPLICANTS.

JAMES AHENKORAH FOR THE RESPONDENT.

[1993]DLSC4888
																																						<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" >ODONKOR AND OTHERS<o:p></o:p>vs.<o:p></o:p>AMARTEI (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">

[1992-93] 2 G B R 653 – 674&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; &nbsp;DATE: 9 FEBRUARY 1993<o:p></o:p>

JAMES
AHENKORAH 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 1.0pt 0in">

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

</div>FRANCOIS JSC. <o:p></o:p>The
opinion I express on this application is in two parts. First, on the merits and
second, the manner in which the application has been brought.<o:p></o:p>It
is rare in the history of litigation in this country to find a case travelling
through three hierarchies of judicial authority with all nine Superior Court
judges who have dealt with it demonstrating singular unanimity in pronouncing
for the same party. In an imperfect world, the possibility that all the nine
eminent jurists could be wrong cannot be ruled out, even though it may appear
an extremely unlikely event. Moreso when the matters challenged are matters of
elementary law, not only residing comfortably in the bosom of judges, but are
the outpouring of words of wisdom daily spouted from their lips.<o:p></o:p>An
opportunity, however, is given once more to redefine the boundaries of the
review jurisdiction of the Supreme Court, which should be seized. One could
simply reiterate definitions set out in Kumnipa v Ayirebi [1987-88] 1 GLR 265
permitting a review only on the existence of exceptional circumstances
necessitating a second look in the interest of justice or repeat the direction
stated in Practice Direction [1987-88] 2 GLR 274.<o:p></o:p>But
since the Kumnipa case, a number of refinements have appeared to explain
“exceptional circumstances”, some of which are clearly unacceptable and
unwarranted extensions to the rule, while some blur the difference between
appeals and review even to the extent of challenging the viability of such a
distinction.<o:p></o:p>A
review is not generally an appropriate forum for revisiting a judgment either
to elaborate on statements made or to criticise others. The only permissible
area of discussion relates to the ascertainment of “exceptional circumstances”
compelling a reversal of the judgment in the interest of justice.<o:p></o:p>The
provision in the constitution allowing for an enlarged Bench in reviews does
not transform the court into an appellate Bench. A review to address a patent
or evident error, is an application to the court to correct its own error.
Obviously then if an enhanced panel adds its weight to the minority to convert
a previous minority judgment to one of majority, with judges not shifting their
stance on their view of the law, for instance, the result becomes unacceptable
because the exercise ceases to be one of a court correcting its own error, but
becomes an appeal with a differently constituted panel sitting in judgment over
its peers and postulating better knowledge of the law.<o:p></o:p>In
my view, a review decision that endorses an original decision of the court
should carry considerable weight. But one that perpetuates a narrow division,
with actors swapping sides, lacks the substance to compel a classification as a
precedent. Indeed it leaves the issue wide open for a future authoritative
pronouncement.<o:p></o:p>This
analysis anticipates two possible types of mischief. Firstly, instead of
concluding cases speedily, litigants are granted the indulgence to continue to
press impossible claims in the hope that an amenable Bench would overturn a
decision; see Jones v Secretary of State [1972] 1 All ER 145.<o:p></o:p>Secondly,
it gives rise to speculation, that Benches may be packed to give a desired
result. All attempts to nurture the review jurisdiction to be productive of
true justice and not its subversion, would then come to nought.<o:p></o:p>Turning
to the instant application, the essential matters raised for determination
relate to the quality of proof, prescriptive and possessory title and estoppel.<o:p></o:p>Each
of the above issues was exhaustively considered by the respective tiers of
adjudication. We have been compelled to look at them again. Arguments have been
churned, rehashed and regurgitated. The whole process has become one of appeal
and not a review. If even one is disinclined to endorse fully the foundations
of other judges on the issues raised, they fail either singly or cumulatively
to create exceptional circumstances. Perhaps I may be permitted to expand on
this.<o:p></o:p>There
seems to be creeping into our land law, a conception that all land suits can be
won on a preponderance of evidence. The Evidence Decree 1975 (NRCD 323) is
urged as the point of justification. This perception fails to grasp the
peculiar nature of a declaratory title to land. For while preponderance of
evidence may suffice in a suit for recovery of possession or trespass
simpliciter, a higher burden of proof is required to be discharged for land
title suits.<o:p></o:p>For
instance, failure to prove a single boundary of one’s land may be disastrous in
a claim to title; see Bedu v Agbi [1972] 2 GLR 238, CA, Sobanjo v Adesina Oke
(1954) 14 WACA 593, Anane v Donkor, Kwarteng&nbsp;
v&nbsp; Donkor (Consolidated) [1965]
GLR 188, SC.<o:p></o:p>Again
proof of root of title is essential for a declaration even though on the level
of evidence adduced the plaintiff’s evidence may appear more preponderant. See
Abinabina Stool v Nkasawura Stool&nbsp; (1956)
1 WALR 247 at 253, Odoi v Hammond [1971] 1 GLR 375 at 382, Fofie v Kofi Written
Civil Judgements, January - June 1964 page 134.<o:p></o:p>There
is also the importance in declaratory suits of proving satisfactorily the
precise area of the grant, the preponderance of evidence notwithstanding; see
Kwame v Fio [1961] GLR 124 and Ansah v Boakyem Written Civil Judgments, July -
December 1963 p 5 at 14 where </main>