DOLPHYNE vs. SPEEDLINE STEVEDORING CO LTD AND ANOTHER [1995-96] 1 GLR 532

CASES REFERRED TO

(1) Khoury v Mitchual [1989-90] 2 GLR 256; [1989-90] GLR 105, SC………………….

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(2) Coles and Ravenshear, In re [1907] 1 KB 1; 76 LJKB 27; 95 LT 750, CA.

(3) Manchester Economic Building Society, In re (1883) 24 ChD 488; 53 LJCH 115; 49 LT 793, CA.

(4) Gatti v Shoosmith [1939] Ch 841; [1939] 3 All ER 916; 161 LT 208, CA.

(5) Botchway v Nassar (1946) 12 WACA 23.

(6) Kudiabor v Kudanu (1932) 6 WACA 14.

(7) Nyimoh v Dadzie [1962] 1 GLR 327.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by the respondents to an application by the

[p.534] of [1995-96] 1 GLR 532 applicant to the Supreme Court under article 131 (2) of the Constitution, 1992 for special leave to appeal to the Supreme Court against the decision of the Court of Appeal in favour of the respondents wherein that court reversed the judgment of the trial circuit court in favour of the applicant.

COUNSEL

Dr Ekow Daniels (with him Gardner) for the appellant-applicant.

E D Kom (with him Paul Akyeampong) for the respondent- respondents.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC

Delivered the ruling of the court. The respondents herein have raised a preliminary objection to the present application and submit that “the application for leave is misconceived and must be dismissed in limine.” For the sake of clarity, the grounds of the objection are set out in extenso as follows:

“(i) The plaintiff appealed from the judgment of the Court of Appeal and the same was dismissed by the Supreme Court on 16 April with ¢300,000 costs.

(ii) The plaintiff having exhausted his right of appeal, so to speak, cannot invoke article 131(2) of the Constitution, 1992 and section 4(2) of the Courts Act, 1993 (Act 459). The plaintiff cannot have a second bite at the cherry: see Khoury v Mitchual [1989-90] 2 GLR 105, SC.

(iii) There must be an end to litigation. Litigation cannot continue as long as litigants can change counsel.

(iv) The plaintiff-applicant failed woefully to depose in his supporting affidavit the substantial question of law involved in this case and the public interest to be served.

(v) The costs of ¢300,000 on the appeal being dismissed have not been paid.

(vi) The word ‘notwithstanding’ does not open the flood gates for incompetent appeals to be resurrected.”

The plaintiff in his application for special leave to appeal to this court prayed for an order that: “Notwithstanding clause (1) of article 131 of the Constitution, 1992 the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in this case, and

[p.535] of [1995-96] 1 GLR 532 may grant leave accordingly upon the grounds set out in the accompanying affidavit and for such further or others . . .”

By his affidavit in support of his above-stated motion, the applicant averred that having commenced his action against the defendant in the circuit court in the Western Region on or about 28 June 1990, judgment was given in his favour by that court against the second defendant-respondent. However, on appeal from that decision to the Court of Appeal, their lordships by a two to one majority reversed the decision of the circuit court; whereupon the applicant lodged an appeal to this court. Upon the appeal coming before their lordships of this court, the respondent by his counsel, Mr E D Kom filed “Notice that he would raise a preliminary objection.” As it turned out, the objection was in respect of the non-compliance by the appellant of the provisions of article 131(1)(b) of the Constitution, 1992. Their lordships of this court by a majority of four to one upheld learned counsel’s preliminary objection and dismissed the appeal with costs of ¢300,000 to the respondent. The appellant now applies to this court invoking the provisions of article 131 (2) of the Constitution, 1992 and prays for the exercise of our discretion—for that is what it is—in his favour upon the grounds that:

“(a) Upon the discovery of my inadvertence to apply for leave, it was incumbent on the respondent to have applied to the Court of Appeal to have been struck out. The defendant-respondent however made no such application. He therefore acquiesced in my default.

(b) That I am very much aggrieved by the decision of the Court of Appeal which reversed the clear finding of fraud made against the respondents by the trial circuit court judge who had the advantage of seeing and hearing the witnesses in respect of the material questions in issue.

(c) That article 131(2) of the Constitution, 1992 preceded by the word ‘Notwithstanding’ gave the widest possible power to the court to do substantial justice even though I was led to pursue my application in an ill-advised manner.

(d) The alleged breach of article 131 (1) of the Constitution,

[p.536] of [1995-96] 1 GLR 532

1992 is only a technical obstacle and should be curable.

(e) That I am advised and verily believe the same to be true that the case is similar in content to that of Botchway v Nassar (1946) 12 WACA 23.

(f) My appeal involves a substantial question of law, namely that where a trial judge who heard the witnesses and observed their demeanour in giving evidence has made a clear finding of fraud which is affirmed by the appeal court it was not in law open to the same appellate court to interfere with the finding of fact by that lower court.”

In our respectful view, the real issue in controversy between the parties is the interpretation which this court is invited to place on article 131(2) of the Constitution, 1992. For the sake of regularity we will set it down thus:

“(2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.”

In support of the preliminary objection, Mr E D Kom, learned counsel for the respondent, submits that the appellant-applicant having exhausted his right of appeal, cannot invoke article 131(2) of the Constitution, 1992. To do so would amount to permitting the appellant to have a “second bite at the cherry.” In learned counsel’s view, there must be an end to litigation. Learned counsel consequently rests his case on the authority of Khoury v Mitchual [1989-90] 2 GLR 256, SC. Learned counsel further submits that the expression “Notwithstanding” was not meant to “open the flood gates” for the resurrection of incompetent appeals.

We think that learned counsel indulges in over simplifications when he contends that the authority of Khoury v Mitchual (supra) supports his objection. True, the application in the Khoury case (supra) was dismissed. But there are dicta in the opinions of their lordships which give strong indications that they would in a proper case grant special leave. Thus says the court, as stated in the headnote:

“(2) Per Adade and Taylor JJSC and Osei-Hwere JA. An

[p.537] of [1995-96] 1 GLR 532 application for special leave under section 3(4) of Act 372 as amended by PNDCL 191 could be entertained by the Supreme Court even if it was founded upon or arose from a refusal of a previous application in the Court of Appeal because the whole of section 3(1) was made subject to subsection (2) so that one could not read section 3(1) without looking at section 3(2) which was in the nature of a proviso to section 3(1). Section 3(2) was therefore a qualification on section 3(1). In the circumstances, there was no need to mention section 3(2) specifically in section 3(4); the mention of section 3(1) necessarily dragged in section 3(2). Consequently, in appropriate circumstances the court might in considering an application for leave under section 3(2), properly grant special leave under section 3(4).”

Then again in the Khoury case (supra) Taylor JSC expressed himself directly and to the point when he wrote at 266:

“I am therefore of the opinion that every case must depend on its own facts and circumstances. A blanket submission therefore that in all cases where the lower court does not decide the application for leave on its merits, an applicant must be taken to have lost his entitlement to apply to the Supreme Court is not the right and proper way of looking at the problem.”

In our respectful opinion therefore, an application to this court for special leave to appeal from a decision of the Court of Appeal cannot be considered a fruitless second bite at the cherry. This court being the highest court of the land must necessarily be invested with unfettered discretion to do justice in appropriate cases and that is the true intendment of article 131(2) of the Constitution, 1992.

It is a matter for debate whether in the exercise of our unfettered discretion under article 131(2) of the Constitution, 1992 this court is bound by any rules of procedure? We do not think so. In the English case of In re Coles and Ravenshear [1907] 1 KB 1 at 4, CA Collins MR wrote that:

“Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of

[p.538] of [1995-96] 1 GLR 532 handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.”

We think the extent and scope of our discretion in these matters were stated by Bowen LJ in the English case of In re Manchester Economic Building Society (1883) 24 ChD 488 at 503-504, CA where his lordship stated:

“It seems to me that to attempt in any one case to lay down a set of iron rails on which the discretion of the Court of Appeal was always to be obliged to run, and to say that the leave of the Court would never be granted except in certain special circumstances and in a defined way, would be very perilous. The Rules leave the matter at large. Of course it is to be exercised in the way in which Judicial power and discretion ought to be exercised, upon principles which are well understood, but which had better not be defined in a case except so far as may be necessary for the decision of that case—otherwise there is the great danger, as it seems to me, of crystalizing into a rigid definition that judicial power and discretion which the Legislature and the Rules of the Court have for the best of all reasons left undermined and unfettered. If the Appellant is asking for what is evidently unjust it is clear that he ought not to have it; if he is asking for what may lead to injustice he ought not to have it except on the terms which would prevent any injustice possibly being done, and for that reason, if any of the Respondents here had shewn that injustice was likely to arise in their particular case, I think terms ought to have been imposed, but if the person who is asking for leave to appeal after twenty-one days is only asking for what is just, why should not he have it?”

Yet again in the English case of Gatti v Shoosmith [1939] ChD 841 at 845-846 the English Court of Appeal said:

“On consideration of the whole matter, in my opinion under the rule as it now stands, the fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser,

[p.539] of [1995-96] 1 GLR 532 may be a sufficient cause to justify the Court in exercising its discretion. I say ‘may be’, because it is not to be thought that it will necessarily be exercised in every set of facts . . . What I venture to think the proper rule which this Court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument. The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised.”

Dr Ekow Daniels, learned counsel for the applicant, has referred this court to a number of cases which he considers are in point and in particular submits that Botchway v Nassar (1946) 12 WACA 23 is more appropriate to the present application than Khoury v Mitchual (supra). In Botchway v Nassar (supra) the West African Court of Appeal was considering the intendments of section 8 of the West African Court of Appeal Ordinance, the words of which were in all particulars similar to article 131 (2) of the Constitution, 1992. Section 8 of the Ordinance began with the word “Notwithstanding. . .” The court referred to the case of Kudiabor v Kudanu (1932) 6 WACA 14 wherein section 7 of the West African Court of Appeal Ordinance was considered. Citing the relevant dictum from that judgment, the court continued at 25 of the report thus:

“We do not agree that section 8 only governs section 7 but governs all the sections contained under the heading ‘Civil Appeals’ unless there is anything in them which logically must be excluded from the operation of section 8.”

In the case of Kudiabor v Kudanu (supra) at 16 Howes J expressed the view that:

“The words in section 8 ‘notwithstanding anything hereinbefore contained’ must refer to each and all of the preceding sections under the heading ‘Appeals in civil cases’ unless there is anything in any of them which logically must be excluded

[p.540] of [1995-96] 1 GLR 532 from the operation of section 8.

On a careful examination of each of the preceding sections I can find nothing: and in my view section 8 was intended to give to the Court of Appeal the widest discretion in all cases in which an appeal lies. In effect this section provides a means of appeal in special cases in which it would be unjust to refuse to entertain an appeal, as for instance where the pecuniary amount involved was below the statutory figure but the principle involved was of the highest importance.”

In the present application, it is clear that the words of article 131(2) of the Constitution, 1992 must govern the provisions of article 131(1)(a) and (b) of the Constitution, 1992. In our respectful view, therefore, the expression “Notwithstanding” as appears in article 131(2) of the Constitution, 1992 means that without being affected by the provisions of clause (1) of article 131 of the Constitution, 1992, this court may entertain an application for special leave to appeal. In other words, this court may in appropriate cases ignore the provisions of article 131 (1) of the Constitution, 1992 and grant special leave to appeal so that the ends of justice might not be defeated. There certainly is no apprehension that so to hold will be opening the “flood gates” to incompetent appeals to this court. It must however be stressed that article 131 (2) of the Constitution, 1992 only affects appeals emanating from the Court of Appeal and no other.

The next matter for consideration is what is special leave? In the Manchester Economic Building Society case (supra) at 499 Cotton LJ expressed himself thus:

“This, I think, may be laid down, that when the Rules and the Act of Parliament say that an appeal is to be within a certain time unless special leave shall be given by the Court of Appeal to appeal after that time, the Court does not grant leave unless there is something which in the opinion of the Court entitles the person who applies for extension of time to be relieved against the bar established by the Orders and the Act of Parliament . . . it is something which entitles him to ask for the indulgence of the Court, to ask to be relieved from the legal bar that there is in the Orders and Act of Parliament.”

That “something” which would entitle an applicant to ask for the

[p.541] of [1995-96] 1 GLR 532 indulgence of the court in granting special leave was given careful consideration is the case of Nyimoh v Dadzie [1962] 1 GLR 327. That case was concerned with the circumstances in which special leave could be granted to appeal to the Supreme Court of that time. It was a short ruling given by Scott J sitting in the High Court, Cape Coast. The holding in that case amply sets out the conditions upon which special leave may be granted. It states thus:

“Held: special leave will not be granted unless (a) there is a prima facie error on the face of the record; or (b) a general principle of law has arisen for the first time; or (c) a decision by the Supreme Court on the point sought to be appealed against will be advantageous to the public.”

This holding has our approval and we will adopt it. We also observe a close similarity between the grounds for the grant of special leave as enunciated in the Nyimoh case (supra) and article 131(1)(b) of the Constitution, 1992 where in granting leave the Court of Appeal must be “satisfied that the case involves a substantial question of law or is in the public interest.”

The final ground of objection which needs to be considered is the objection that: “The plaintiff-applicant failed woefully to depose in his affidavit the substantial question of law involved in this case and the public interest to be served.”

Of course, this ground of objection is not borne out by the papers presented to this court in support of the application for special leave. The applicant clearly raised the issue of fraud. The applicant submits that the issue of fraud having been clearly determined in his favour by the trial court, it was not open to their lordships of the Court of Appeal by their majority decision to set aside that positive finding of fraud. We are of the opinion that whenever the issue of fraud is raised in court, such court ought to be astute to examine whether there is proof of the averment. In the present application, it is contended that the minority of their lordships amply affirmed the findings of the trial judge. Dr Ekow Daniels, learned counsel for the appellant-applicant, submits that:

“a determination of the import of article 131(2) of the Constitution, 1992 by the Supreme Court will be advantageous to the public as this is a general principle of law which requires

[p.542] of [1995-96] 1 GLR 532 the wisdom of the honourable Supreme Court for the first time.”

We feel flattered by this invitation. Article 131 (2) of the Constitution, 1992 confers Jurisdiction on this court in the exercise of its unfettered discretion to grant special leave to appeal from any decision or judgment of the Court of Appeal. The exercise of that discretion is neither dependent on any rule of court nor on any Act of Parliament. Section 4(2) of the Courts Act, 1993 (Act 459) is merely a repeat of the Constitution, 1992 and is in consonance with the long title of that Act. But the discretion is conferred on this court by the Constitution, 1992 and will be exercised in appropriate cases bearing in mind the facts of each presentation and the need to prevent a failure of justice. It should from our opinion be clear concerning the principles on which special leave will be granted. They are to be applied as guides from which the court may determine whether to grant special leave or not.

In all the circumstances, the respondent’s preliminary objection fails and the same is overruled

DECISION

Order accordingly

D R K S