SWANIKER v. ADOTEI TWI II [1966] GLR 151

Division: SUPREME COURT

Date: 14 FEBRUARY 1966

Before: SARKODEE-ADOO C.J., OLLENNU AND APALOO JJ.S.C.

CASES REFERRED TO

(1) Ansah v. Essuman (1896) Red. 194.

(2) Ennessie v. Busumchie (1919) F.C. Feb. ‘19, 34.

(3) Adusei v. Marfo, Supreme Court, 24 February 1964, unreported.

(4) Morris v. West Hartlepool Steam Navigation Co., Ltd. [1956] A.C. 552; [1956] 1 W.L.R. 177; [1956] 1 All E.R. 385; 100 S.J. 129, H.L.

(5) Benmax v. Austin Motor Co., Ltd. [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326; 99 S.J. 129; 72 R.P.C. 39, H.L.

(6) Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257; [1957] 1 W.L.R. 1223; 101 S.J. 972, P.C.

(7) Watt (or Thomas) v. Thomas [1947] A.C. 484; [1947] 1 All E.R. 582; [1948] L.J.R. 515; 176 L.T . 498; 63 T.L.R. 314, H.L.

NATURE OF PROCEEDINGS

APPLICATION for review of a judgment of the Supreme Court dated 30 June 1964. The facts are sufficiently set out in the ruling of Ollennu J.S.C.

COUNSEL

B. J. da Rocha for the applicant.

J. B. Quashie-Idun for the respondent.

JUDGMENT OF SARKODEE-ADOO C.J.

This is an application under rule 33 of the Supreme Court Rules, 1962,1 for a review of a judgment of this court delivered on 30 June 1964 (unreported). Rule 33 provides as follows:

“The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review.” [p.153] of [1966] GLR 151

Before proceeding to deal with the merits of the application, it is pertinent to point out that the power to review was only recently conferred upon this court, and to the best of my recollection, there has been before this court only one application in the case of Adusei v. Marfo2 and I reproduce the ruling hereunder:

“RULING: The record of the proceedings and the argument by counsel for the parties leave no doubt in our minds that this is a proper case for a review in compliance with the specific provision as contained in rule 33 of the Rules of the Supreme Court, 1962. The judgment of this court dated 4 March 1963, is in our view given per incuriam occasioned by incorrect court notes from the court below quite apart from incoherent passages in the plaintiff’s evidence in which there are also obvious omissions.

Accordingly, we are of the opinion that there are special circumstances and in the interest of justice the said judgment should be vacated and it is hereby vacated and the appeal will be relisted and heard de novo by this court as constituted. The application is accordingly granted, and the applicant will have his costs of this motion fixed at £G6 3s. The applicant and the respondent to contact the registrar for a hearing date.”

This ruling was given in court upon the conclusion of arguments by counsel as it was clear to the court that no further consideration was necessary to arrive at a decision. The court was satisfied from its judgment that it was influenced by some typographical errors in the record and consequently it omitted to consider certain issues in the appeal, and accordingly the application for review was granted, the judgment was vacated and the appeal was relisted and heard de novo by the court.

The existing rulings on review by the other courts, although not binding on this court, in my opinion, do not provide adequate or safe guidance as to the principles to be followed for the simple reason that the powers of review by those courts are dependent upon clearly different grounds and considerations in that in those instances the discretionary power of review was exercised upon sufficient grounds shown. In the instant application, omitting the formal parts, the material paragraphs of the applicant’s affidavit in support of the motion for review are as follows:

“(3) That the whole action in the trial court turned on whether the plaintiff-applicant’s family or my family owned the land in dispute.

[p.154] of [1966] GLR 151

(4) That it was not disputed that the Korle priest was the original grantor of the land.

(5) That it was further not disputed that some time in 1944 the Korle priest made a conveyance to my family the Swaniker family confirming the grant to the said family.

(6) That before the said document was executed a plan of the land was made by a surveyor.

(7) That the conveyance was lost before the trial took place.

(8) That the plaintiff-respondent at the trial produced a tracing of the plan which had been produced at the survey but had got the heading altered so that it read ‘Adotei Twi Family Land’ instead of ‘Swaniker Family Land’ and this plan was accepted and marked exhibit A.

(9) That it turned out at the trial that the plan originally made by the surveyor was in fact headed Swaniker Family Land and a photostat copy of the said original was produced from my custody and admitted in evidence and marked exhibit 1, but since the judgment of the Supreme Court, I have discovered the original of the plan bearing the surveyor’s signature.

(10) That it was quite clear that the plaintiff-respondent attempted to induce the court to believe that the plan exhibit A which he produced was an exact copy of the original.

(11) That throughout the trial and also at the hearing of the appeal it was the contention of the plaintiff-appellant that he employed, instructed and paid the surveyor and that the co-defendant-respondent’s family then represented by the late H. P. Swaniker had nothing whatsoever to do with the employment of the surveyor and the learned judges of the Supreme Court accepted this contention in their judgment.

(12) That no reasonable explanation was given by the plaintiff as to why a surveyor employed, instructed and paid by him to survey his own family land should have headed the plan with the name of the Swaniker family.

(13) That the learned judges of this honourable court do not appear to have considered either exhibit A or exhibit 1 in coming to the conclusion that the learned trial judge erred in rejecting the plaintiff’s case.

(14) That I am advised and verily believe that if the contention of the plaintiff that he employed, instructed and paid the surveyor is accepted then the irresistible inference is [p.155] of [1966] GLR 151 that the heading of the original plan exhibit 1 must have been made upon information supplied by the plaintiff-appellant.

(15) That I am advised and verily believe that if this inference is drawn then exhibit 1 is an admission by the plaintiff-appellant against the interest of his family which must necessarily affect the veracity of the plaintiff and the validity of his case.

(16) That I am advised and verily believe that had the learned judges of this honourable court directed their attention to exhibit A and exhibit 1 they would probably have reached a conclusion as to the merits of the plaintiff’s case different from that reached in the judgment delivered on 30 June 1964.” In my view the applicant, by his affidavit, contends that:

(1) There is an error in the judgment delivered on 30 June 1964, because it omitted to consider fully (whatever that means) exhibit 1 (a photostat copy of a plan) and the evidence relating thereto.

(2) The original of this plan, has, according to the applicant, been discovered since the judgment and that it bears the surveyor’s signature.

Now as to the alleged discovery of the original of exhibit 1, no effort whatsoever was made on the part of the applicant to tender it at the hearing of this application nor had the court any opportunity to have sight of it to support or in any way bear out the allegation as to the heading of the original plan and the surveyor’s signature thereunder. At the trial the respondent produced and tendered a plan with a heading “Adotei Twi Family Land” and not “Swaniker Family Land,” and this plan was accepted and marked exhibit A.

The very second paragraph of the judgment of this court sought to be reviewed reads as follows: “There can be no doubt as to the identity of the land in dispute as claimed and particularly described and bounded in the plaintiff’s writ of summons and his statement of claim as borne out by exhibits A (plan of property of Nii Adotei Family) and 1 (plan of property of Swaniker family) which refer to the same land.” In my view on the material before the court and the evidence in respect of exhibit 1, nothing further could have been said to support or warrant its rejection. I am not aware of any rule of law that every exhibit in a case should be dealt with at length whether or not the [p.156] of [1966] GLR 151 issues having regard to the preponderance of evidence (oral and documentary) demolish its value even though due and necessary reference has been made to it. In the instant case, exhibits A and 1 refer to the identical land and in my opinion the plaintiff’s claim was amply proved by the evidence adduced in support thereof and such inferences as are to be drawn from it.

Admittedly no limits could be imposed on what the courts should regard as exceptional circumstances but after having listened carefully to the arguments of counsel I have no doubt in my mind that nothing new has been urged or argued by counsel for the applicant before this court to warrant the order for review sought.

A review is not intended to take the place of an appeal and great care should be taken and it must always be remembered that a good ground in law for an appeal is not necessarily a ground for granting review. Speaking for myself, I am not aware of any omission which warrants a correction on the grounds that “the circumstances of the case are exceptional and that in the interest of justice there should be a review.” It is the duty of this court to guard against any possible abuse of its rules, and I am not satisfied that there should be a review of the judgment. For the above reasons, I would refuse the application.

JUDGMENT OF OLLENNU J.S.C.

The applicant moved the court under rule 33 of the Rules of the Supreme Court, 1962, to review a judgment given by it on 30 June 1964 (unreported). The grounds of his application as set out in paragraphs (11) to (16) of the affidavit in support thereof may be summarised as follows: that the court omitted to direct its attention to a certain exhibit in the case and the evidence in respect thereof, and that if the court had not so omitted to consider that evidence, it might most probably have reached a conclusion different from the one it reached.

In opposition to the application the respondent contended in paragraph (4) of his affidavit that the matters alleged by the applicant are no valid grounds for a review; and in paragraph (5) thereof, he further alleged that there are no exceptional circumstances disclosed by the applicant which, in the interest of justice, should warrant a review.

Rule 33 of the Supreme Court Rules, 1962, which gives the court discretion to review says: “The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review.” [p.157] of [1966] GLR 151

The emphasis in the rule is on “circumstances of the case are exceptional and that in the interest of justice there should be a review.” No fixed rule can be laid down for determining what the court ought to regard as exceptional circumstances. Each particular case will depend upon its own merits. We can, however, find guidance from decisions of courts of this and of other countries which have or have had the discretion to review.

Power of review was given to the Supreme Court established under the Courts Ordinance, 18763; it was contained in Order 41, r. 1 of Schedule III to the Ordinance and is as follows:

“Any Judge, Magistrate, or other judicial officer, may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, or a reference shall have been made upon a special case, and such appeal or reference is not withdrawn), and upon such review it shall be lawful for him to open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary, or confirm his previous judgment or decision, or to order a non-suit.” That rule, as Redwar points out at p. 195 of his Comments on some Ordinances of the Gold Coast, was based on section 68 of the Hong Kong Civil Procedure Code, 1873, and section 24 of the Hong Kong Supreme Court Summary Jurisdiction Ordinance, 1873.4 That rule was replaced by a more elaborate rule, namely, Order 39 of the Supreme [High] Court (Civil Procedure) Rules, 1954,5 which reproduced Order 42 of the Uganda Civil Procedure Rules, and which also corresponds to Order 47 of the Indian Code of Civil Procedure, 1908. The Indian Code of 1908 was framed, as much as possible, in a way to incorporate therein decisions and interpretations made by the Supreme Court of India on the rules as contained in earlier Codes, i.e. the 1859 and the 1877 Codes.

As appears on the face of it, the rule as contained in Order 41 of Schedule III to the Courts Ordinance, 1876, like rule 33 of the Rules of the Supreme Court, did not state any specific circumstances in which the court may exercise the discretion to review. But from rulings made on it by the Divisional Court and the Full Court, certain guiding principles emerged. Thus the learned author of Comments on some Gold Coast Ordinances commenting on the ruling [p.158] of [1966] GLR 151 in Ansah v. Essuman6 as to the circumstances in which review may be granted said inter alia: “Where no appeal lies (because of the decision being given in respect of a sum under 50/. in a Divisional Court, or under 5/. in a District Commissioner’s Court) the Judge or Commissioner should be more disposed to exercise this discretionary power — provided sufficient grounds be shown — than in cases where an appeal lies. As to what are sufficient grounds for review, it would seem that the discovery of fresh evidence, which was not within the knowledge of the party applying for review at the time of the trial, and therefore could not then have been adduced by him, is the strongest ground for the exercise of this discretion. Of course a review should be granted whenever an evident error or omission occurs in a Judgment, this being an application to the Court to correct its own error.”

Again, the commentary on the Indian rule as to what would be sufficient reason for review lists a number of instances based upon decisions of the Indian courts, in which the discretion to review may be exercised. It says, among other things:

“Whilst an error on a point of law is a ground for review, the reason is not confined to either positive error in law or new evidence to be brought forward which could not be produced on the first hearing. And the cases do not limit the discretion of the Court, in saying what reason is good and sufficient or what may be so far requisite to the ends of justice as to support an application for review. The Court must decide this in each case on its own circumstances. The reason must be one sufficient to the Court before which the application for review is made. It may depend upon a question of law or upon a question of fact or of mixed law and fact. It is not limited only to the cases in which the right to review is extended in England. It cannot, moreover, be treated as a universal rule that no point can be raised on an application for review which has already been discussed and decided on the original hearing or that no new point which was not raised on the hearing can be argued on the application for review. In each case the Court must consider and decide whether a review is necessary to correct any evident error or omission or is otherwise requisite for the ends of justice. The following cases therefore are cited, as instances only, of the exercise of the power, which, however, is not limited to such cases. Where a Court wrongly excluded material evidence; or [p.159] of [1966] GLR 151 refused to admit additional evidence on appeal; or the parties and the Judge were under a misapprehension as to the contents of a document, or the Judge alone was misled on the point; or the Judge in deciding the case omitted to consider the effect of important documentary evidence filed with the plaint, which was not taken issue upon, and which materially affected the merits of the case; or the question of limitation; or discredited material documentary evidence without inspecting it, or declared the report of a Commissioner unworthy of reliance because he was a muharrir, or omitted to try a point which was urged before him, by mistake; or had placed the onus of proof on the wrong party; it was held that there was sufficient ground for granting a review . . . or where the point was raised for the first time in delivering judgment; or the Judge had made an error in calculation; or had based his decision on a decree which was subsequently set aside on appeal. The production of an authority, which ought to have been but which was not cited at the first hearing, laying down a view of the law contrary to that taken by the Judge, is sufficient ground, though formerly it was held otherwise. So where the Privy Council had given an authoritative exposition at variance with the decision of the High Court on which the decree sought to be reviewed had been based a review was allowed.” See Woodroffe and Ameer Ali’s Civil Procedure in British India (2nd ed.), pp. 1360-1362. I would here emphasise that a review is not intended to take the place of an appeal, and is not to be dealt with as if it were an 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. As Redwar points out, an application for review is an application to the court to correct its own error, which includes omission. But the error or omission must be evident, or apparent in the judgment for the court which gave it to see and to recognise the necessity to correct it in order that justice may be done. And these, in my opinion, are the principles by which the court should be guided in considering an application for a review. In Ennessie v. Busumchie7 the Full Court was moved to review its decision on the grounds that it had held inter alia that the applicant was estopped by a decision of 1909 from disputing the respondent’s title to certain lands, and that there was an error in the

[p.160] of [1966] GLR 151 judgment sought to be reviewed, because it is not shown in that judgment that the land, the subject-matter of the 1909 suit, was identical with the land in dispute in the 1919 case. The Full Court held that it was not in error, because although its judgment did not discuss the identity of the lands, the subject-matter of the two suits, the 1909 judgment was admitted by the Divisional Court, the court of first instance, after sufficient evidence had been led to identify the land in that case with that in the 1919 suit. Therefore the Full Court’s confirmation of the decision of the Divisional Court on the issue of estoppel implies acceptance of the finding of the Divisional Court as to the identity of the land in the 1909 suit with that in the 1919 suit.

On the other hand, in Adusei v. Marfo8 where this court was satisfied from its judgment that it was influenced by some typographical errors in the record and consequently it omitted to consider certain issues in the appeal, it granted a review.

Now, the main contention of counsel for the applicant in the present matter is that there is an error in the judgment the court delivered on 30 June 1964, because it omitted to consider a certain document, exhibit 1, a photostat copy of a plan, and the evidence relating thereto, before coming to its decision. The original of this plan, has, according to the applicant, been discovered since the judgment; its discovery however, has no bearing on the issue now before the court.

Counsel for the respondent did not commit himself as to whether or not there is an omission as alleged by the applicant. He submitted that the points relating to the document were fully argued before the court at the hearing of the appeal, and therefore the court must be deemed to have considered them before coming to its decision.

The first point to be decided on this matter therefore is, whether there is an error evident in the judgment sought to be reviewed; that is, whether that judgment shows that the court omitted to consider the document in question and the evidence relative thereto. To answer that question we must look at the judgment.

The judgment began by setting out the issues in clear terms; it next quoted in extenso, and without comments, all the pleadings in the case; next it reproduced in full, the judgment of the trial court, leaving out only the introduction which consisted of a reproduction of pleadings and statement of the issues to be tried. Immediately following the reproduction of the judgment of the court below, the judgment stated that the appeal turned upon questions of fact, and it thereupon [p.161] of [1966] GLR 151 set out the well-established principle of law, namely, that an appeal is by way of re-hearing and an appeal court must not hesitate to set aside a decision of a trial court based upon facts, if there is sufficient material to warrant that the trial court is wrong. There is no question about this principle; if authorities are required I would cite Morris v. West Hartlepool Steam Navigation Co., Ltd.,9 Benmax v. Austin Motor Co., Ltd.,10 Adjeibi-Kojo v. Bonsie11 and the classical speech of Lord Thankerton in Watt (or Thomas) v. Thomas.12 Acting upon this principle the court proceeded to state its opinion on the facts; it said: “On my own reading of the evidence as a whole and after listening to the exhaustive arguments of counsel I have come to the inevitable conclusion with due respect to the learned trial judge that he arrived at the wrong conclusion obviously by being misled by the defence and particularly without any proper evidence to support the co-defendant’s involved explanation, he wrongfully preferred the said explanation, which resulted in taking an unwarranted view of the issue involved.”

By that definite opinion the court postulated that there is fallacy in the reasons given by the trial judge of the High Court in coming to his conclusion of fact. Put in another form, the court stated an issue with respect to the matters which the trial court relied upon to prefer the case of the defendant to that of the plaintiff. By the postulation of that issue the court set itself the task of demonstrating and exposing the fallacy in the reasoning of the trial court which led to its preference for the defendant’s case and the rejection of the plaintiff ‘s case. To enable it to do this, the court referred to the only ground of appeal argued, namely, “The learned trial judge failed to consider the evidence adduced by the plaintiff and his witnesses as to the previous acts of the defendant’s predecessor, which acts confirm the plaintiff’s contention that the land in dispute is the plaintiff’s property” It then made another assertion, it said: “In my view this ground of appeal is well founded and must be upheld.” From that point the court proceeded to show that the plaintiff made a strong case; to do that, it quoted at length all the evidence oral and documentary in favour of the plaintiff’s case, and at the end of it concluded as follows: “In my opinion the plaintiff’s claim was amply proved by the

[p.162] of [1966] GLR 151 evidence adduced in support of the claim and such inferences as are to be drawn from it.” It would appear that the wording of the ground of appeal and the submissions of counsel in support thereof, so impressed the court that in consideration of them the court became so absorbed in the evidence and matters affecting the strength of the plaintiff’s case, that the principal issue it postulated and which it set itself the task of resolving, entirely eluded its attention, and consequently that crucial task did not receive its consideration. That task, as I have stated above, is to expose the fallacy in the reasons given by the trial court for accepting the case for the defence, i.e. to demonstrate that the trial court was “misled by the defence and particularly without any proper evidence to support the co-defendant’s involved explanation,” and it “wrongly preferred the said explanation which resulted in taking an unwarranted view of the issue involved.” I say that this main issue escaped the attention of the court, because I find that nowhere in its judgment did the court examine any of the grounds upon which the decision of the trial court was based, or any of the evidence in support of the defence which the trial court accepted, to show that it was wrong.

In these proceedings counsel for the applicant has pin-pointed one reason which stands out pre-eminently among a number of reasons which the trial court gave for preferring the case of the defence to that of the plaintiff. This is exhibit 1, the plan of the land, and the evidence given by the plaintiff himself that it was made upon instructions and information which he himself gave to the surveyor. The heading of that exhibit describes the land as property of the defendant’s family. The trial court held that that exhibit is an admission by the plaintiff against his interest, and that he was not able to give any explanation why that admission should not be binding upon him.

As earlier pointed out, none of the reasons which the trial court gave for its judgment received any attention in the judgment which is now sought to be reviewed; and that makes it apparent that it escaped the court to deal with the very task it set itself, i.e. to demonstrate the fallacy in the reasoning of the trial court. There is therefore an error evident in the judgment. Moreover, the arguments advanced and the points discussed in the judgment are so clear that the contention of counsel for the opposer that the matters omitted to be considered must be deemed to have been impliedly included in those points and arguments is, in my view, untenable, and must be rejected.

In my opinion the circumstances of this case are obviously exceptional, and in the interest of justice warrant a review.

[p.163] of [1966] GLR 151

For these reasons I would grant the application for review, set aside the judgment and relist the appeal for hearing de novo.

JUDGMENT OF APALOO J.S.C.

I find myself heartily in accord with the conclusion at which my brother Ollennu has arrived. I think it would not be frequent that this court will find itself persuaded to exercise the power conferred upon it by rule 33 of the Supreme Court Rules, 1962. But in my opinion, this is eminently such a case. I will not myself go into the history of the power of review but the object which animated the conferment of such a power and the basis on which other tribunals have exercised it, have been admirably set out in my brother’s opinion. The real kernel of this matter is, whether the circumstances of this case are exceptional. I agree with my brother in thinking that it would not be wise to lay down what are exceptional circumstances for the purpose of this rule and that each case should be left to be judged on its own merits. But where litigants submit their dispute to a judicial tribunal which determines it with full reasons, I should myself regard it as exceptional if any appellate tribunal disturbed that conclusion without itself demonstrating the fallacy of the trial court’s reasoning.

I think that is what happened in this case. The judgment of this court proceeded on the footing that the reasoning of the trial court on the various controverted matters on which it pronounced a decision was fallacious. That being so, it behoves this court to show this by its own independent reasoning. That clearly has not been done and this omission is apparent on the face of the judgment. In these circumstances, ordinary fairness requires that this court should make good its omission and have a fresh look at its judgment.

Accordingly, like my brother Ollennu, I also think that the judgment of this court should be reviewed and I concur that orders be made in the manner he has proposed.

DECISION

Application granted.

S. K. T.