QUAGRAINE v. DAVIES [1960] GLR 171

DIVISION: IN THE COURT OF APPEAL

DATE: 13TH JUNE, 1960

BEFORE: KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.

CASE REFERRED TO Effom and Others v. Frumah and Others Divisional Court, 1929-1933, 40.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Acolatse, J. in an action for recovery of possession of land given on December 21, 1957. The preliminary question

[p.172] of [1960] GLR 171 was whether the appeal was timeous. The facts are set out in the judgment of the Court of Appeal.

COUNSEL

Bentsi-Enchill for appellant.

C. F. Hayfron-Benjamin for respondent.

JUDGMENT OF GRANVILLE SHARP J.A.

Granville Sharp, J.A. delivered the judgment of the court: The question that arises for determination in this appeal involves the interpretation to be placed upon Order 39 of the Rules of the High Court and the rules made under the order. It comes before us on appeal (a) from a judgment of Acolatse, J. dated the 21st December, 1957 and (b) from a ruling of the same judge dated the 31st October, 1959.

The argument placed before us by Mr. Bentsi-Enchill for the appellant—the plaintiff in the suit—expressed succinctly, is

(a) that by his ruling of the 31st October, 1959 the learned judge granted a review of his earlier final judgment by confirming it,

(b) that, therefore, if the ruling is set aside on appeal, the earlier judgment may also be set aside, if it should appear that on the merits of the case it was erroneous, and

(c) that in any event the time for appealing against the judgment of the 21st December, 1957 begins to run only from the 31st October, 1959, because it was then that the learned judge confirmed it, so as to make it his final judgment. On this basis it was submitted that the Notice of Appeal was filed within the time fixed by the Rules. Mr. Bentsi-Enchill has brought to our notice certain authority upon which he seeks to rely in support of his contention. Firstly, he cites from Woodroffe and Ali on Civil Procedure in British India (2nd Ed. at p. 1378) a passage which he submits is in pari materia with the present case. The passage is as follows:— “When a case is re-heard on review the order on the re-hearing is a new decree whatever the result is even though on the application for review coming on for re-hearing the Judge allowed it on a comparatively insignificant point and forthwith directed a clerical error in the decree to be rectified; and the time within which to appeal on the decree runs from the date of such order.” Counsel stresses the last sentence of this citation. Next, he has called to our attention a passage from the judgment of Gardiner Smith, J. in the case of Effom and Others v. Frumah and Others. The case in question arose under the old Order 42 rule 1, which we do not doubt has not been changed in material respects for the purposes of this appeal by Order 39 rule 6, on which he places so much reliance. What Gardiner Smith, J. said was:

“In my opinion Order 42 r. 1 reopens the whole case, and enables the Court to make any Order whatsoever. This is the effect of the Indian Rules, which are similar to our own.” (Div. Ct. 1929-33 p.40.) The importance of these citations, from the point of view of their relevance or irrelevance to the facts of the present case, will appear from what follows later in this judgment.

[p.173] of [1960] GLR 171

The relevant provisions of Order 39 are as follows:—

“1. (1) Any person considering himself aggrieved—

(a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a judgment or order from which no appeal is allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment given or order made against him, may apply for a review of the judgment or order to the Judge who gave judgment or made the order. “(2) A party who is not appealing from a judgment or order may apply for a review of the judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appeal Court the case on which he applies for the review.

“3. (1) Where it appears to the Judge that there is not sufficient ground for a review, he shall dismiss the application.

“(2) Where the Judge is of opinion that the application for review should be granted, he shall grant the same:

“Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the Judgment or order was given or made, without strict proof of such allegation.

“6. When an application for review is granted, a note thereof shall be made in the register and the Court or Judge may at once rehear the case or make such order in regard to the rehearing as it thinks fit, and upon such rehearing the Court or Judge may reduce, vary or confirm its previous judgment or order.”

It is in the light of these provisions that we must consider what the learned judge did in the case of the application before him, and also the extent of and limitation to his jurisdiction under the Rules.

The application for a review of his judgment of the 21st December, 1957, was made by motion dated and filed the 4th January, 1958, in the following form:

“MOTION OF NOTICE FOR REVIEW UNDER ORDER 39

“Take Notice that this Honourable Court will be moved by Bentsi-Enchill, Esquire, of Counsel for and on behalf of Sarah Quagraine the Plaintiff/Appellant herein praying under Order 39 for an Order reviewing the judgment herein delivered by Acolatse, J., on the 21st December, 1957, and for such further or other order as to this Honourable Court may seem fit. [p.174] of [1960] GLR 171

“Court to be moved on Saturday the 25th day of January, 1958 at 9 o’clock in the forenoon or so soon thereafter as Counsel for the applicant can be heard.

“Dated at Naoferg Chambers, Accra, this 4th day of January, 1958.”

This motion was supported by full affidavits, but neither to these nor to the evidence filed in reply is it necessary to refer.

On February 8th, 1958 the proceedings came on for hearing under sub-title as follows:—” Motion on notice for an order reviewing the judgment of 21st December, 1957.” The hearing of the motion was adjourned. It was resumed under the same sub-title on February 22nd, 1958 and (again under the same sub-title) on the 8th March, 1958. From then onwards to the 17th October, 1958, the nature of the proceeding with which the learned judge was concerned was described by him, when he described it, as “motion for review” and it was not until the 31st. October, 1958 that the learned judge (in our view through inadvertence) used an expression which appears to us to be both equivocal and wanting in validity, viz., “ ruling upon the review “; and he added, after reading his ruling, a consequential order in the terms “The review is dismissed, with costs for the opposer.” Mr. Bentsi-Enchill relied on the following passages in the ruling of the learned judge:

“I gave judgment on the 21st day of December, 1957, for the defendant upon the evidence before me.

Mr. Enchill moved the Court for review of the judgment, which came before me on the 22nd February, 1958, sitting at Sekondi, for hearing. His argument was based upon the point that ‘The Court was misled (by the distinction drawn between the two Certificates of Purchase of 1881 and 1893) into an interpretation of the Privy Council Judgment which was incorrect.’ His contention was that the three pieces of Nanado, Aberzaboasi and Abisiwa lands are outside the area edged pink lying south of the area. He also contended that the plaintiff was not given the opportunity to call witnesses in support of her case.

“On the 8th March, 1959, after hearing counsel and finding that the issue involved was the physical identity and situation of the Agissu land, of which the plaintiff is the owner, and the three pieces of land admitted as belonging to the defendant, I made an Order that the boundaries of the defendant’s three plots of land as described at page 21 of Exhibit ‘D’, and the boundaries of Agissu land as described in Exhibit ‘C’ at page 61 of Exhibit ‘D’ be severally delineated on a plan to be prepared by surveyors (Selby and T. F. Mensah, both of Cape Coast).

“I allowed the motion to the extent of the Order above: It was meant to see whether the surveyors would produce a plan different from the plans tendered at the trial, and to clear up the confusion in the identity of the land or lands claimed by each side. “I think this review does not justify my varying the judgment I have given, and there is no foundation whatever for saying that the

[p.175] of [1960] GLR 171 plaintiff was prevented from calling her witnesses. The review is dismissed, with costs for the opposer assessed at One Hundred Guineas inclusive.”

These passages (Mr. Enchill said) clearly indicated that the learned judge had allowed the application for review to some small extent, and on his cited authorities Mr. Enchill would no doubt contend that this re-opened the whole case, and made the time for appealing against the earlier judgment run from October 31st, 1958.

Counsel, however, seemed to fail in his appreciation of another passage in the ruling:

“Mr. Enchill tendered six exhibits which were refused by the Court upon the objection taken by Mr. Abadoo.

“I find, at the conclusion of the hearing of the review, that the new plan is identical with the plans tendered in the trial. The location of the disputed lands in the new plan is just the same, and tallies more or less with Selby’s old plans. “Mr. Enchill was seeking to introduce fresh evidence in this review contrary to the Order, and entirely different evidence from the evidence in the trial. It was an attempt on his part to re-open the matter and to go one better than the plaintiff’s former counsel. “In my opinion the plaintiff failed, upon the record upon which the Court based its judgment, to justify a review of the judgment. Counsel for plaintiff had every opportunity of raising points taken by him in this review in the trial, and in truth some of the points taken in this review are based on the same facts as, and repeat submission made in, the trial.” This passage, in our opinion, destroys the validity of the argument that the learned judge reheard the case, and confirmed his previous judgment. Indeed, it indicates clearly (in our opinion) that the proceeding was for the purpose of eliciting that strict proof of allegations which is required by the proviso to rule 3 (2) of Order 39. The learned judge did not make any alteration or correction—clerical, or of any other kind—in his judgment or “ decree “. In dismissing the motion he refused to vary it in any way. On his findings it is evident that the learned judge concluded that the requisite proof of the allegations was wanting, and, in the circumstances, if he had purported to grant the application for review he would have acted without jurisdiction, and his ruling would have been a nullity. He in fact dismissed the application, though it must be said that he did so in inappropriate words, which with a little more care he could easily have avoided. We cannot allow ourselves to be enslaved to mere words, particularly when, as here, they are used loosely and inaptly. It is the real intendment of the ruling, read as a whole, and in the light of the true nature of the proceedings, that must be regarded. Looking at the matter in this way there is only one conclusion to which we can come, namely, that the application for review was dismissed by the learned judge within the limits of his jurisdiction, which he would have transgressed if he had purported to do more. [p.176] of [1960] GLR 171

No appeal lies against a refusal to grant a review, therefore the only matter in respect of which this appeal could properly be brought is the final judgment dated the 21st December, 1957. But the notice of appeal was filed on the 5th November, 1959, by which date the time for appeal had long expired. The appeal is not properly before the court, and therefore stands dismissed.

DECISION

Appeal dismissed