OPANIN YAW NTOAH & 3 ORS. vs. NANA DWAMENA AKENTEN II & 3 ORS. [2007]DLCA6557

Date	2007-03-01
Suit No.	CIVIL APPEAL NO.: H1/282/
Citation No.	[2007]DLCA6557

OWUSU JA [PRESIDING]

ANIM JA

ABBAN [MRS.]

MR. OTU ESSEL FOR THE DEFENDANT/RESPONDENTS.

NANA OBIRI BOAHEN FOR THE PLAINTIFFS/APPELLANTS

[2007]DLCA6557
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN YAW NTOAH &amp; 3 ORS.<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>NANA DWAMENA AKENTEN II &amp; 3 ORS.<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL – ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: H1/282/&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 1ST MARCH, 2007<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
OTU ESSEL FOR THE DEFENDANT/RESPONDENTS.<o:p></o:p>

&nbsp;NANA OBIRI BOAHEN FOR THE
PLAINTIFFS/APPELLANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>OWUSU JA [PRESIDING], ANIM JA, ABBAN [MRS.]<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>OWUSU,
JA<o:p></o:p>&nbsp;This is an appeal against the ruling of His
Lordship Frank Amoah J. sitting at the High Court, Wenchi which ruling was
delivered on the 4th day of May, 2005 in an Ex-parte application for review of
an order of the Circuit Court, delivered by His Honour Owusu Gyamfi, sitting at
Fiapre on 3rd May 2005. <o:p></o:p>Following an application
brought before the Circuit Court under Section 22(1) of the Criminal Procedure
Code, 1960 Act 30, by Chief Superintendent of Police of Techiman District
Headquarters, on the instructions of the Inspector-General of Police, the
Circuit Court Judge ordered the Respondents to sign a bond to keep the peace.
The Respondents, were also ordered to postpone the burial of a Chief for one
month until the issue of whether the late chief died as Akyempinhene or as both
Akyempimhene and Tuobodom chief has been resolved by the appropriate forum
(Brong Ahafo Regional House of chiefs) to avoid or avert any possible Mayhem. <o:p></o:p>The brief facts leading to
the police going to court for the order are that on 13/12/03, one Nana Soffour
Yaw the Akyempimhene of Techiman died. For sometime before his death, Nana also
styled himself as chief of Tuobodom. A faction of the Respondents however
contended that he was not the Chief of Tuobodom. According to them, one Nana
Amo Gyeabour II was the Chief of Tuobodom. <o:p></o:p>Upon the death of Nana
Soffour Yaw II, attempts were made to bury him as Tuobodomhene. The Appellants
resisted such attempts. The police sensing danger, arraigned both factions
before the Fiapre Circuit Court under Section 22(1) of the Criminal Procedure
Code, of 1960 (Act 30) for them to sign a bond in order to keep the peace. The
application was granted resulting in the order made by the Circuit Court Judge.<o:p></o:p>&nbsp;Dissatisfied with that part of the order
postponing the burial of the chief, the Respondents herein, did not appeal
against it but rather filed an ex-parte application for review before the High
Court Wenchi which by way of review, set aside the order postponing the burial
for one month. Instead, the Respondents were restrained from either organizing
the final funeral rites or installing a new chief immediately following the
burial. <o:p></o:p>It is worthy of note that
the Ex-parte application was filed by the Respondents themselves. The
application, dated the 4th of May, was filed and moved on the same day.<o:p></o:p>&nbsp;The Appellants are before this court
complaining bitterly against the ruling on the grounds that:<o:p></o:p>&nbsp;1. "The learned Judge erred when he
granted the Respondents application.<o:p></o:p>&nbsp;2. "The recourse to review was wrong
within the given circumstance and; <o:p></o:p>3. "The said
application was incompetent, null and void." <o:p></o:p>Even though counsel argued
grounds 1 and 3 separately, I will deal with them together as the Judge erred
in granting the application because same was incompetent and ought to have been
dismissed. <o:p></o:p>Order 42 rule 1(1) of the
High Court (Civil Procedure) Rules of 2004 (C.I. 47) under which the court
sought to entertain the application states that —<o:p></o:p>&nbsp;"a person who is aggrieved <o:p></o:p>(a) by a Judgment or order
from which an appeal is allowed but from which no appeal has been preferred: or
<o:p></o:p>(b) by a Judgment or order
from which no appeal is allowed, <o:p></o:p>may upon the discovery of
new and important matter or evidence which, after the exercise of due
diligence, was not within that person's knowledge or could not be produced by
that person at the time when the judgment was given or the order made or an
account or some mistake or error apparent on the face of the record, or for any
other sufficient reasons, apply for a review of the judgment or order." <o:p></o:p>The rule applies in civil
matters and under laid down circumstances. It is not ordinarily resorted to.<o:p></o:p>&nbsp;The order in respect of which the review was
sought was given in a criminal forum in the exercise of its criminal
jurisdiction and the High Court in the exercise of its civil jurisdiction could
and should not have entertained the application. In the case of QUARTEY &amp; OTHERS VRS. GENERAL
SERVICES CO. LTD. {1996 - 97} SCGLR 398 the Supreme Court per Abban
C.J. held that—<o:p></o:p>&nbsp;"The court would exercise its review
jurisdiction being a special</main>