ASCHKAR v. KARAM [1972] 1 GLR 1
COURT OF APPEAL
Date: 25 OCTOBER 1971
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Adjani v. Agyeman III, Court of Appeal, 6 November 1969, unreported; digested in (1970) C.C.
14.
(2) Tularley v. Abaidoo [1962] 1 G.L.R. 411, S.C.
NATURE OF PROCEEDINGS
APPLICATION for an order for the review of a previous decision of the Court of Appeal. The facts are
fully stated in the ruling of the court.
COUNSEL
Joe Reindorf for the applicant.
No appearance by or for the respondent.
JUDGMENT OF AZU CRABBE J.S.C
Azu Crabbe J.S.C. delivered the ruling of the court. This is an application brought under rule 33 of the Supreme Court Rules, 1962 (L.I. 218), for an order for review of the Supreme Court’s decision in the above case dated 20 February 1963. Rule 33 reads as follows: [His lordship here read the rule as set out in the headnote and continued:] This matter has had a chequered career in the courts, and for more than eight years it has deliberately been kept alive by a series of motions; until a stage is reached where legal ingenuity itself becomes exhausted.
The background of this application is as follows: On 24 May 1961, the late Adumua-Bossman J. (as he then was) gave judgment against the applicant in the High Court, Accra, in an action instituted by the respondent in this application. The applicant appealed to the former Supreme Court on a number of grounds, and the respondent also cross-appealed. On the date fixed for the hearing of the appeal, neither the applicant nor his counsel appeared in court, and the appeal was dismissed with costs for
non-prosecution. The respondent’s cross-appeal was also dismissed on 20 February 1963, after argument.
On 4 April 1963, an application for an order “to restore the cross-appeal herein which was dismissed on 20th day of February, 1963” was filed on behalf of the applicant by the late Mr. C. F. Hayfron-Benjamin. This was clearly a wrong application, and on 3 April 1967, it was withdrawn and was dismissed with costs by the Court of Appeal, which had then succeeded the former Supreme Court.
[p.3] of [1972] 1 GLR 1 On 8 May 1967, a fresh application was filed under rule 33 of the Supreme Court Rules, 1962 (L.I. 218), by Mr. B. J. da Rocha on behalf of the applicant for “an order to relist” the appeal which was struck out for non-prosecution.
It seems no action was taken in that application for nearly three years. On 14 April 1970, the respondent (judgment creditor) filed an application in this court for leave to go into execution in respect of the judgment of 20 February 1963, and for an order that the present applicant (judgment debtor) should pay interest at the rate of ten per cent. on the judgment debt from the date of judgment. This application was fixed for hearing on 11 May 1970. With regard to the applicant’s application the court made an order as follows: “We are not satisfied that the applicant has been entirely frank in his reason for not being present during the hearing of the original appeal in 1963. He seems to have given a different reason at different times. We think that the application is a tardy one and we do not think good reasons have been shown for re-opening a matter that was laid to rest seven years ago.
We incline to the view that the motion was an attempt to stave off execution.
We therefore refuse the motion and dismiss it. Costs in favour of the respondent fixed at N¢21.00.”
And with regard to the respondent’s application the court ordered as follows: “We think that the applicant should now be enabled to enjoy the fruits of his judgment, and accordingly grant his motion. Costs in favour of the applicant fixed at N¢21.00.”
On 2 July 1970 the applicant filed yet another application, which purported to have been made under
rules 32 and 33 of the Supreme Court Rules, 1962. The object of this application was to obtain from this court an order “reviewing and/or clarifying its order of 11 May 1970 in this matter,” and on 14 July 1970, the court made the following order:
“We agree that the order of the court bearing the date 11 May 1970 should be clarified as prayed for. We order that the plaintiff be at liberty to levy execution for his judgment with interest at the rate of four per cent. per annum from the 20 February 1963. The application that execution be stayed pending the application for review is refused. We think it would be unjust to prevent the plaintiff from enjoying the fruits of his judgment after the applicant went to sleep for seven years.
We award the respondent costs fixed at N¢21. 00.” Again, on 25 July 1970, the applicant filed the present application. The notice of motion is accompanied by a statement of case, which states as follows: [p.4] of [1972] 1 GLR 1 “The applicant submits that the circumstances of this case are exceptional and that there should in the interest of justice he a review of the court’s judgment on the ground that the applicant was, by the court below and by this honourable court adjudged liable for a tort and/or a breach of contract on the sole ground that he ejected defendant-respondent from premises upon a judgment and order of a court of competent jurisdiction given after a full trial in which the defendant participated and was represented by counsel.
The applicant contends that no person can by the law be held liable whether in contract or tort when the only act be is charged with is strict obedience, to the letter, to a judgment or order pronounced by a court of competent jurisdiction, which judgment or order has not been set aside.”
In paragraph (15) of the supporting affidavit the applicant deposed as follows:
“I now hereby apply for a review of the court’s judgment of 20 February 1963 , which I could not very well do while there was still pending an application to relist, — upon the grounds set out in my solicitor’s statement and in this affidavit.”
Arguing this application on behalf of the applicant, Mr. Reindorf submitted that an error of law which is patent on the face of the record, and which produces manifest injustice should be regarded as a ground for review under rule 33. It is clear on an interpretation of the Supreme Court Rules as a whole that rule 33 is not intended to take the place of appeal, and an application under that rule ought not to be dealt with as if it were a further appeal. Therefore, the mere fact that there is a good ground upon which the judgment could be set aside on appeal is not of itself a ground for granting review under rule 33. The onus on the applicant is a heavy one indeed. He must satisfy the court:
(1) That the circumstances that give rise to the application are exceptional; and
(2) That it is in the interest of justice that there should be a review. “Exceptional circumstances” which may necessitate the exercise of the power of review in this context means that the particular facts alleged as the ground for review are unusual. The facts must at least show that the court had misled itself or had been misled by the winning party by a deliberate or innocent misrepresentation on both facts and law. Misapprehension of the law is not a ground of review under rule 33, and, therefore, where the court had on a particular issue given its considered opinion, it will not review and set aside its decision merely because additional arguments lead it to think that its decision was wrong. It will certainly require a strong case to justify a review under the rule.
In the opinion of this court the applicant has failed to show that there are exceptional circumstances
which, had this application been properly before us, would have justified a review. But we think that the [p.5] of [1972] 1 GLR 1 present application is in any case misconceived. Rule 33, in our opinion, contemplates the review of a judgment on the merits, and from the recital of the facts it is clear that the applicant’s appeal was not heard on the merits, but was dismissed for non-appearance. And rule 23 (2) provides as follows:
“When an appeal has been struck out or dismissed owing to the non-appearance of the Appellant the Court may, on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”As we said in Adjani v. Agyeman III, Court of Appeal, 6 November 1969, unreported; digested in (1970) C.C. 14: “It is plain that an application under rule 23 (2) may only be made to restore to the court list a case which has merely been struck out or dismissed and has never been argued and decided because the appellant did not attend court on the date fixed for the hearing of the appeal.”
The applicant made two successive applications under rule 23 (2), but both were dismissed.
It is a well-settled principle that where a right is given and a specific procedure is prescribed by law for obtaining a remedy, it is that procedure alone that should be followed: See Tularley v. Abaidoo [1962] 1 G.L.R. 411, S.C. The appeal of the applicant having been earlier dismissed for non-appearance, the judgment of 20 February 1963, which went to merit, was really confined to the cross-appeal of the respondent. The cross-appeal was ultimately dismissed, and we are unable to see how the applicant can be an aggrieved party as a result of this dismissal so as to entitle him to a review under rule 33. His only remedy lay under rule 23 (2).
We think that this application is an abuse of the process of the court, for if we were to accede to it, it
would open the door to the review of all judgments from 1876 when the Supreme Court was first
established in this country. This court has the inherent jurisdiction to prevent the abuse of its process.For the above reasons, the application for review is refused.
DECISION
Application for review refused.
[Reported by S. OSAFO LLB (Ghana).]
