COURT APPEAL, ACCRA (FULL BENCH)
Date: 22 JULY 1974
APALOO JA
CASES REFERRED TO
(1) Adusei v. Marfo, Supreme Court, 24 February 1964, unreported.
(2) Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C.
(3) Aschkar v. Karam [1972] 1 G.L.R. 1, C.A.
(4) Benneh v. The Republic [1974] 2 G.L.R. 47, C.A. (full bench).
(5) Practice Direction [1973] 2 G.L.R. 39, C.A.
(6) Cropper v. Smith (1884) 26 Ch. 700; 53 L.J.Ch. 891; 51 L.T. 729; 33 W.R. 60, C.A.
NATURE OF PROCEEDINGS
APPLICATION for re-enlistment of a motion for a review of a decision of the ordinary bench of the Court of Appeal (reported in [1973] 2 G.L.R. 151) by the full bench. The facts are sufficiently stated in the ruling of the court.
COUNSEL
Joe Reindorf for the applicants.
U.V. Campbell for the respondent.
JUDGMENT OF APALOO JA
He delivered the ruling of the court. On 19 April 1973, an ordinary bench of this court by a majority gave judgment (reported in [1973] 2 G.L.R. 151) against the applicants for a large amount of money together
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with interest and costs. On 10 July 1973, the applicants filed in this court, an application for a review of that judgment. The applicants were professedly invoking the jurisdiction of this court under section 3 (2) (b) of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101). The stated ground for the application, is that the decision of the court occasioned a miscarriage of justice.
There is nothing novel about the jurisdiction conferred on the full bench of this court by the section referred to. A like jurisdiction was conferred on a predecessor of this court by paragraph 7 of the Courts Decree, 1966 (N.L.C.D. 84). How that jurisdiction, then new, was to be exercised, was the subject of the Chief Justice’s practice directive of 16 February 1967 (reported in No. 2 (1967) C.C. at p. vii). On 15 May 1973, the Chief Justice again gave directives as to how the jurisdiction of the full bench conferred by N.R.C.D.101 was to be exercised. In the main, it was to be exercised as the predecessor of this court exercised it. This procedural directive is reported in [1973] 2 G.L.R. 39.
As the applicants’ complaint was that the decision of the ordinary bench occasioned a miscarriage of justice, to comply with the practice directive as specified at pp. 39—40, there must be disclosed by their application:
“circumstances which clearly reveal that the dictates of real justice have been ignored. For example, if there is a disregard of some fundamental principle of justice, or if the judgment of which the review is sought was given per incuriam. In this latter case it will not be enough just to state that the court has been careless over certain matters. Counsel must specify precisely in which respects the carelessness is evident.”
The directive then reminded the profession that: “It should be clearly noted that this jurisdiction is for a review and determination, and not an appeal.”
The grounds proffered to support the application for a review were two, namely: first that the leading judgment put a forced and strained interpretation on perfectly clear documentary evidence and thereby reversed findings of fact made by the court below; second, that the supporting judgment was based purely on the concept of natural justice, equity and good conscience. Apparently on the date when this application was filed, the official judgment was not available. As is customary these days, it was promised that:
“Further particulars of miscarriage of justice will be filed in due time when copies of the judgments or opinions read by all three judges of the Court of Appeal are available.”
It is plain that the grounds filed, failed to specify the way in which justice was miscarried in the manner required by the practice directive referred to. The said directive gave notice to the profession and all interested parties at p. 40 that: “All applications for review will first be considered by the Justices of Appeal in chambers; and it is only if they decided that the case is worth going on with that the application for review will be listed for hearing.”
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This practice which originated with the conferment of the “review jurisdiction” on the full bench by the 1966 Courts Decree, is paralleled on the United States Supreme Court practice where all the judges of the Supreme Court meet behind closed doors to decide which appeals filed are worth hearing. The material for determination of this initial question is the papers filed by the parties; these are mainly legal arguments. That procedure was thought suitable in an application for review before a full bench of the Court of Appeal, because in a review, the court would have had acquaintance with the matter already and must have reached a decision at which an applicant requires it to have a second look. The only materials on which such a request can be based would ordinarily be the record of appeal, which would have been prepared and authenticated under the Supreme Court Rules, 1962 (L.I. 218), and the judgment of the court.
On 22 January 1974, the full bench of this court met to give initial consideration to this application. It was obvious to the court that the applicants failed to comply with the practice directive. But an examination of the record, shows that this was a substantial litigation involving the interpretation of documentary evidence and some principles of contract law on which the judges who first dealt with this case took divergent views. The full bench also noted that of the four judges who considered this matter, two found for the applicants and two found against them. The court considered that this was a fit case to be given a second look and with more heads. It waived the applicants’ breach of the practice directive and gave them three weeks to file a fuller statement of their case.
It is to be remembered that this is precisely what the applicants themselves promised to do on receipt of the judgment. The evidence shows that the court’s order was served on their solicitor on 28 January 1974. If the applicants were minded of obeying that order, such a statement as complies with the practice directive would have been filed by 19 February 1974. By 28 February 1974, no such statement was filed and accordingly, the application was struck out. In communicating the striking out to the parties, the registrar said this was done because of the failure by the applicants to comply with rule 13 (1) of the Supreme Court Rules, 1970 (C.I. 13). The applicants took their stand on this.
In inviting us to restore this motion to the list, Mr. Reindorf for the applicants, contended that no occasion arose for the striking out and that this step was taken irregularly. This is because the record of appeal envisaged by rules 11 and 12 of C.I. 13 had not then been prepared, and the applicants were therefore under no obligation to state a case under rule 13 (1). That being so, the penalty for striking out prescribed by subrule (2) of rule 13 was not incurred. The applicants were therefore irregularly visited with that penalty and the court should make an order restoring the application to the list. To the application was attached correspondence between the Chief Justice and the Attorney-General in which the former suggested certain amendments to the practice rules and to the Courts (Amendment) Decree, 1972. In particular, the Chief Justice seemed desirous that the practice directive which he caused to be published on 15 May 1973, should have statutory backing. The applicants came by this
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correspondence which was not addressed to them because they said the Attorney-General referred it to the Bar Association for its views. Their counsel said, this correspondence fortified his position.
Counsel for the applicants also referred to rule 66 of C.I. 13 and pleaded that if his contention should prove unacceptable to the court, there is jurisdiction to waive the breach and that this was required in the interests of justice. In an affidavit sworn to by the applicants’ managing director in support of this motion, the latter swore in paragraph (13) that “the applicants are solely concerned with the proper determination of their case and not directly involved with matters concerned with procedure or any statutory amendments thereof.” In view of the applicants’ stance, this disclaimer seems to have a hollow ring.
There can hardly be any doubt that the Supreme Court Rules, 1970 (C.I. 13), were designed to provide a compendious procedure for litigation in the newly established Supreme Court, which had original, referred, supervisory and appellate jurisdiction. The rules which apply to the exercise of its appellate jurisdiction were mainly patterned on the Court of Appeal Rules, also called Supreme Court Rules, 1962 (L.I. 218). Section 6 of the Courts (Amendment) Decree, 1972, requires the full bench to apply these rules with such modification as may be necessary.
The jurisdiction conferred on the full bench is to review and not to entertain an appeal from the ordinary bench. Indeed an appeal from the ordinary bench to the full bench would only, in effect, mean an appeal from one panel of judges to another panel of the same court. Accordingly, a considerable body of case law has drawn a distinction between a review and an appeal and stressed that the former should not be taken as intending the latter and should not be dealt with as such. Such cases as Adusei v. Marfol Supreme Court, 24 February 1964, unreported; Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C.; Aschkar v. Karam [1972] 1 G.L.R. 1, C.A. and Benneh v. The Republic [1974] 2 G.L.R. 47, C.A. (full bench) are typical of these. We accept this as a valid distinction and hold that although both may achieve the same result, they are conceptually different.
That being so, need they necessarily be governed by the same procedural rules? We do not think so. In an appeal, a higher court is often asked to correct the error real or imagined of a lower court. It can only do this if it has a trustworthy record of what took place in the lower court. So the materiality of having a full record is apparent. In a review, the same court is asked to have a second look at its judgment and correct, if need be, its own error. It would have had a record of its own proceedings. In the instant case, if there is anything that the applicants lacked, it certainly was not a record of proceedings. What they put forward as disabling them from presenting a fuller picture of their grievance was the unavailability of the judgment of the court. This was in July 1973. That judgment must have become available since. Indeed it was reported in [1973] 2 G.L.R. 151. The applicants now take the dry procedural point that since a record was not settled in the manner required by rules 11 and 12 of C.I. 13, they were not obliged to state their case. Such a change of front is not likely to
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evoke much sympathy from a court ofjustice, even if it were founded on strict law.
But section 6 of the Courts (Amendment) Decree, 1972 (N R.C.D. 101), which required the full bench of this court to apply C.I. 13, itself envisages that these rules may not be wholly suitable for the jurisdiction conferred by section 3 of that Decree. Accordingly, it says it “shall [do so] with such modifications as may be necessary. . .” Thus in reviewing its judgment or in seeking to have a second look at its own judgment, the court could modify rules 11 and 12 by dispensing in any event, at the initial stages with a “settled record.” This would do no harm to either side. Each would in any case have been in possession of the record already settled under the Supreme Court Rules, 1962 (L.I. 218). The authority which could make such modifications is the court. Rule 5 of C.I. 13 provides that:
“Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter may require.”
True, there is a constitutional rules committee established by article 121 of the 1969 Constitution and kept alive by section 4 (b) of the National Redemption Council (Establishment) Proclamation, 1972, but this committee made no rules to govern the practice and procedure for a review. We think that the practice directive issued by the Chief Justice on 15 May 1973 in consultation with his brother justices should be deemed a modification of rules 11 and 12 of C.I. 13 by the court within the true intendment of section 6 of the Courts (Amendment) Decree, 1972. It is not reasonable to hold that the legislature intends that the machinery of the courts should grind to a halt, if the rules committee, through inertia, oversight or otherwise, omitted to make rules to govern the conduct of any particular legal transaction. In such situations, reason suggests that the court should be enabled to formulate and give directions as to its procedure. Rule 38 of L.I. 218, gives the court power to act in such cases and this is repeated in slightly altered language in rule 5 of C.I. 13. It is not, as implicit in the contention of the applicants, an assumption of legislative power by the Chief Justice.
Then reliance was placed on correspondence which passed between the Chief Justice and the Attorney-General on a number of suggested amendments, including a request to give the practice directive statutory backing by the rules committee. It is unclear how the applicants came by this correspondence and why they should have thought it right to use correspondence passing between third parties to bolster their case. We cannot but deplore the use of that correspondence by the applicants who were strangers to it. But inasmuch as the letters show that the Chief Justice desired the practice directive to be made into rules of court, this was in our view, a perfectly proper request. If the rules committee had made rules governing the practice and procedure for review, it would not
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have been necessary for the court to exercise its power under rule 5 to fill the lacuna by issuing the practice directive. To ask that that practice directive be given greater publicity to the profession by having the stamp of the rules committee, is no evidence of doubt in the Chief Justices mind about the legal propriety of the directive.
The only matter about which the applicants can complain, is that in apprising them of the striking out, the registrar said this was done because of their failure to comply with rule 13 (1) of C.I. 13. This is incorrect. It is a sanction imposed on the applicants in ignoring the order to state a case in terms laid down in the practice directive. That document itself notified the world that (at p. 40 supra): “Failure either to note or comply with any of the above directives will be dealt with in a manner deemed appropriate by the court, and fitting sanctions imposed.” The striking out was a well merited sanction in view of the applicants’ indifference or perhaps refusal to comply with the order to state a case.
The applicants pleaded in the alternative, that we exercise our discretion and restore this application to the list if we should form a view adverse to their contention. They offered to state a case within 24 hours. The registrar has informed us that they have, since the adjournment, stated such a case. This has, on our directions, been served on the respondent. The applicants have also paid into court the judgment debt and costs in obedience to our order of 6 May 1974. That puts a slightly different complexion on the matter. In Cropper v. Smith (1884) 26 Ch. 700 at p. 710, C.A. Bowen L.J. said in regard to a plea for amendment:
“[I]t is a well established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights . . . I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy. “
Although this was said in relation to an application for amendment, the general guideline that it gives about the correct approach to the exercise of the court’s discretion in procedural matters, seems apposite to the circumstances of this case. Although the applicants’ conduct does not merit our approbation, it can hardly be said to be fraudulent or calculated to overreach. The judgment debt and costs are now safely in court and the respondent runs no risks of reaping the fruits of his victory if the application should fail on the merits. We have already noted that this is a serious litigation involving the evaluation and interpretation of a mass of documents and consideration of some of the principles of the law of contract on which the four judges before whom this matter came, were evenly divided. There is also the fact that in communicating the striking out to the applicants, the registrar wrongly stated its basis and unwittingly encouraged the applicants to put up a plausible argument. Provided he is
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compensated in costs, no injustice will be done to the respondent if this application is re-listed. A consideration of all these matters, leads us to think that the ends of justice would best be met by acceding to, rather than refusing, this motion. To say this is not to say that a litigant who fails to comply with the practice directive, does so otherwise than at his peril.
The applicants also complain that the practice directive which entitles judges to first consider in chambers whether the application for review is worth going on, contravenes section 97 of the Courts Act, 1971 (Act 372), which requires that proceedings shall ordinarily be in public. We cannot accept that the informal conferences which judges hold to decide whether or not an application warrants hearing in court are “proceedings” within the true meaning of section 97 of the Courts Act, 1971. A normal appeal would have been heard in open court and the court’s decision would have been similarly announced. But the conferences which judges normally hold to take a decision, are not “proceedings” at which the parties are entitled to be present. In a review, the applicant prays, on a case stated by him, that the court should re-consider its decision. The judges confer to consider whether, as has happened in many cases, the “case stated” was frivolous or at least, arguable. If they decide that the latter is the case, the parties are then invited back into open court where “proceedings” within section 97 take place.
Even rule 23 (1) of C.I. 13 contemplates such “decisional conferences” in chambers and in the absence of the parties. It provides that:
“The Court may, after considering the statement of the case of each of the parties to the appeal and any other papers or arguments filed by the parties decide to determine the appeal and give judgment in Court on a fixed date without further argument or may appoint a date on which the parties shall appear before the Court for the hearing of further argument.”
It seems clear that under this rule, the judges are entitled to reach a decision on the merits of an appeal upon a mere perusal of the case stated by the parties. If they decide that no point would be served in hearing further argument, for instance, because the appeal was unmeritorious, their only obligation is to announce this to the parties in open court. And such judgment may amount to no more than “the appeal fails and is dismissed.” If a Supreme Court which, in the normal course of things, would have had no previous acquaintance with the matter can determine an appeal strictu sensu in this way, the right of an appeal court to adopt this course when asked to reconsider its judgment, must be an a fortiori. In our judgment, the complaint that section 97 of the Courts Act, 1971, is infringed by the procedure by which judges give initial consideration to a “case” on review in chambers, is ill-founded.
In any event, coming from the applicants, this is a barren complaint. When the justices met in chambers to give preliminary consideration to the “review application” they decided that the applicants had, at least, a plausible case and requested them to state a fuller case. Had they done so, the application would then have been heard in open court and this would
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have been a public proceeding within the true meaning of section 97. The applicants omitted to do this but chose instead to engage in a disputation on the propriety of the order from a procedural stand point.
The applicants now seem to have realised the unwisdom of their action and in view of their obvious change of heart and the other matters to which we have given expression, we propose to restore this application to the list on condition that they pay to the respondent, within one week, costs of 200.00.
DECISION
Application granted.
