NORA OTOO AND OTHERS vs. REUBEN OTOO AND OTHERS [2015]DLSC3022

Date	2015-01-28
Suit No.	CIVIL APPEAL NO. J7/3/2015
Citation No.	[2015]DLSC3022

DOTSE JSC (PRESIDING)

BAFFOE-BONNIE JSC

GBADGEBE JSC

GODFRED YEBOAH DAME ESQ. (WITH HIM FREEMAN SABBAH AND JUSTICE OTENG) FOR THE DEFENDANTS /APPELLANTS/ APPELLANTS/ APPLICANTS /APPLICANTS.

DIANA ASONA DAPAAH ESQ. WITH HER LESTER OHEMENG AND VELDA ADOBEA ATUAH FOR THE PLAINTIFFS/RESPONDENTS/ APPELLANTS /RESPONDENTS/RESPONDENTS.

[2015]DLSC3022
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													<main id="main" class="content" style="min-height: 60rem" >NORA OTOO
AND OTHERS<o:p></o:p>vs.<o:p></o:p>REUBEN OTOO
AND OTHERS<o:p></o:p>&nbsp; [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">

CIVIL APPEAL NO. J7/3/2015&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
DATE: 28TH
JANUARY, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>GODFRED
YEBOAH DAME ESQ. (WITH HIM FREEMAN SABBAH AND JUSTICE OTENG) FOR THE DEFENDANTS
/APPELLANTS/ APPELLANTS/ APPLICANTS /APPLICANTS.<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">

DIANA
ASONA DAPAAH ESQ. WITH HER LESTER OHEMENG AND VELDA ADOBEA ATUAH FOR THE PLAINTIFFS/RESPONDENTS/
APPELLANTS /RESPONDENTS/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">

DOTSE, JSC (PRESIDING) BAFFOE-BONNIE, JSC AND
GBADGEBE, JSC<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div>GBADEGBE
JSC:-&nbsp;&nbsp; <o:p></o:p>We have before us an application that seeks the
reversal of the decision of a single Justice of this court that refused to
grant leave to the Applicants herein to file a supplementary affidavit and
supplementary statement of case in a pending review application before this
court.<o:p></o:p>The background to the application herein is that
following the decision of this court in an appeal involving the parties herein,
the applicant filed a motion for review of the decision of the ordinary
bench.&nbsp; It repays to say that the case
which was contested from the trial court and culminated in the decision of the
ordinary bench of this court on 17 July 2014 was concerned simply with the
construction of the will and indeed, the review application that was filed by
the Applicants herein on 15 August 2014 dealt only with issues that alleged
misconstruction of the will the subject matter of the action herein by the
ordinary bench. Following the filing of the review application, the Applicants
applied to the court presided over by a single Justice for leave to be enabled
to file a supplementary affidavit and statement of case in the review
application.&nbsp; After hearing the parties,
the learned judge refused to yield to the invitation of the Applicants.
Dissatisfied with the said ruling, the Applicants are now before us by virtue
of article 134 of the 1992 Constitution for a reversal of the decision. By the
application herein, we are enabled to reconsider the application which was
refused on 15 August 2014 and in particular determine whether the order of 15
August 2014 was a proper exercise of discretion by the learned judge whose decision
we are entitled to treat with respect and reverse same only if we are satisfied
that the refusal was an injudicious exercise of discretion.<o:p></o:p>We have examined the grounds of the application
and in particular the contention that the learned Justice whose decision is
before us for reconsideration did not exercise the discretion conferred on him
properly and wish to say at once that we&nbsp;
think that that decision&nbsp; was
correctly pronounced. As we are in agreement with the single Justice’s decision
and the reasons provided therefore, we do not think it necessary to repeat the
said reasons in the course of our determination of the instant application. We
are of the view that faced with the nature of the application before him; the
single Justice could not have reached a different conclusion. We are also of
the opinion that the facts in respect of which the&nbsp; Applicants strenuously&nbsp; sought to&nbsp;
raise for the first time in the review application namely - that the
will which was&nbsp; the subject matter of the
action herein was&nbsp; made by an illiterate
and signed by him without an interpretation clause raises for the consideration
of the Court essentially a new matter or fact that was not raised on the
pleadings on which the action was contested from the trial High Court to the Supreme
Court and that being so,&nbsp; it is not only
inconvenient to allow such a new case to be introduced at that stage in the
proceedings but&nbsp; would occasion injustice
to the Respondents. See: (1) New Zealand
and Australian Land Co v Watson (1881) 7 QBD, 374; (2) Green v Miller, 109 ER 1335. Reference is made to the speech of
Bramwell LJ in the New Zealand case (supra) at page 382 as follows:<o:p></o:p>“But the first observation that I have to make upon it is that no such
case as this is in the statement of claim, nor was it made before the jury or
in the argument before Mr. Justice Field. If pleadings are to be of any use a
man should be bound by the statement of his case, so that a defendant may know
what he has got to answer. Otherwise pleadings are a snare and a delusion. I do
not say that an application may not sometimes be properly made to the court in
which the record is, for leave to amend the statement of claim so as to raise a
different question from that which is already in it, but I think it an
inconvenient thing when the question comes to be discussed before the Court of
Appeal, that an entirely new point should then be raised.”<o:p></o:p>We observe that since the&nbsp; leave was sought to enable the Applicants put
across&nbsp; their case&nbsp; which is pending before the review panel and
involves&nbsp; an entirely new matter, the
consideration that should weigh on us should be the same as those in an
application that seeks leave to amend pleadings, and accordingly where such an
application raises a new case and or issue for the first time after the
decision on the appeal by the ordinary bench of the Supreme Court, then it can
be said that the new case</main>