NYAMEKYE vs. OPOKU [2000]DLSC502

Date	2000-04-12
Suit No.
Citation No.	[2000]DLSC502

EDWARD WIREDU JSC

BAMFORD-ADDO JSC

AMPIAH JSC

KPEGAH JSC

ADJABENG JSC

ATUGUBA JSC

AKUFFO JSC

JAMES AHENKORA FOR THE APPLICANT.

NUTIFAFA KUENYEHIA FOR RESPONDENT

[2000]DLSC502
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													<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">NYAMEKYE<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">OPOKU<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 2 GLR 220<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: 12 APRIL
2000<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JAMES AHENKORA 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">

NUTIFAFA KUENYEHIA FOR
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">

EDWARD WIREDU, BAMFORD-ADDO,
AMPIAH, KPEGAH, ADJABENG, ATUGUBA AND AKUFFO JJSC<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Edward Wiredu
JSC. <o:p></o:p>This is an application praying this court to review its judgment
given on 21 July 1999, dismissing the applicant’s appeal. When rule 54 of the
Supreme Court Rules, 1996 (CI 16) was enacted, it was the hope of all that
having spelt out, in statutory terms, the only grounds upon which the review
jurisdiction of this court may be exercised, litigants would be duly guided
thereby and that the previous attempts to use the review jurisdiction as an
avenue for a rehearing of lost appeals would cease or, at least, be
significantly reduced. Unfortunately this does not appear to be the effect. To
make matters worse, it also appears that counsel for losing parties are under
the misapprehension that the reviewability of a matter is determined by
numerical factors and any decision of the court which is not unanimous must be
subject to review.<o:p></o:p>Illustrative of this point is the statement in the applicant’s
statement of case herein that the application is for:<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">“. . . review of the split decision of the Supreme Court. . . by a
majority of 3-2 . .. (and that in this matter) except . . . in the National
House of Chief where the decision was unanimous, in all the other adjudicating
bodies which have dealt with this case the decisions have been split, meaning
therefore that there may well be very good reasons for reviewing the majority
decision of the Supreme Court . . .”<o:p></o:p>I will however reiterate, by way of a reminder, the words of
Taylor JSC in Bisi v Kwayie [1987-88] 2 GLR 295 at 297, SC that: “in our system
of adjudication, the majority view of a plural bench of a court represents the
binding judgement of the court, even if it can be subsequently demonstrated to
be vulnerable to attacks.”<o:p></o:p>By virtue of rule 54 of CI 16, what is in issue in an application
for review is not a matter of head count; otherwise, why not count all the way
from the trial court or tribunal up to the Supreme Court, to ascertain what
should be the right decision. Rather, the only matters this court is permitted
by the law to take into account in a review application are those that
demonstrably show that there are: (i) exceptional circumstances which have
resulted in a miscarriage of justice to the applicant; or (ii) there is some
new matter or evidence that have come to light after the decision, which, with
all due diligence, had not been within the applicant’s knowledge or could not
have been produced by him earlier. This special jurisdiction of the court will
not, cannot and must not, therefore, be exercised merely because counsel for
the applicant refines his appellate statement of case, or thinks up more
ingenious arguments which, he believes, might have favoured the applicant had
they been so presented in the appeal hearing. An opportunity for a second bite
at the cherry is not the purpose for which this court was given the power of
review. In the case of Quartey v Central Services Co Ltd [1996-97] SGGLR 398 at
399 Abban CJ explained the review jurisdiction of this court in the following
terms:<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">“A review of a judgement is a special jurisdiction and not an
appellate jurisdiction conferred on the court; and the court would exercise
that special jurisdiction in favour of an applicant only in exceptional
circumstances. This implies that such an applicant should satisfy the court
that there has been some fundamental or basic error which the court
inadvertently committed in the course of considering its judgement; and which
fundamental error has thereby resulted in a gross miscarriage of justice. These
principles have been stated over and over again by this court. Consequently, a
losing party is not entitled to use the review process to reargue his appeal
which had been dismissed or to use the process to prevail upon the court to
have another or a second look at his case.”<o:p></o:p>Although the decision in Quartey v Central Services Co Ltd
(supra), and the greater number of decisions which sought to define the
principles upon which this court will exercise the review jurisdiction, predate
the enactment of rule 54 of CI 16, there is no doubt that the rule itself is an
encapsulation of these principles and the earlier learning still holds good in
determining whether an application is one worthy of the exercise of this
special jurisdiction.<o:p></o:p>