The language of rule 17 of the Supreme Court Rules, 1996, CI.16, when examined critically, reveals that a Preliminary Objection is not available to an Appellant. Indeed, by rule 17(1) of CI.16, it is only a Respondent to an appeal who can file a Notice of Preliminary Objection. A preliminary objection is intended to point out and argue a point of law which goes to the root of the Notice of Appeal which has been filed by the Appellant. Such point of law must be of a kind that when sustained renders the whole appeal invalid and, indeed, makes the hearing of the appeal no longer necessary. A preliminary legal objection, when properly raised, must be capable of depriving the Court of jurisdiction to hear the appeal.
The review jurisdiction is not an ordinary one and an applicant who seeks to file such an application must satisfy himself that it is within either rule 54 (a) or (b) of C.I. 16. An applicant who alleges that a decision must be reviewed on grounds of exceptional circumstances shall further demonstrate that it has also occasioned a miscarriage of justice as a proper interpretation of the text makes the two phrases conjunctive. Therefore, where a party proves that the decision of the ordinary court should be reviewed as a result of exceptional circumstances, that party shall further demonstrate that a miscarriage of justice has been occasioned to enable the Court to exercise its discretion; otherwise, the application shall fail. The two basic conditions for review must be met before the Court can exercise its discretion to grant a review, namely, that it is not a jurisdiction to make available to a party who is dissatisfied with every decision of the Supreme Court. The review jurisdiction, unlike an appeal, is limited to only parties who can meet the conditions precedent before a discretion to grant can be exercised.
A review of a judgment is a special jurisdiction and not an appellate jurisdiction conferred on the court; and the court would exercise that special jurisdiction in favour of an Applicant only in exceptional circumstances. This implies that such an application should satisfy the court that there has been some fundamental or basic error which the court inadvertently committed in the course of considering its judgment; and which fundamental error has thereby resulted in gross miscarriage of justice. Consequently, a losing party is not entitled to use the review process to prevail upon the court to have another or a second look at his case.
It has been settled by a plethora of cases determined by this Court, that an appeal being a creature of statute, a party who seeks to invoke the jurisdiction of this Court, must comply with conditions set out in the enabling statute. The filing of grounds of appeal which are non - compliant with the rules governing the appeal, may be fatal to an appeal, as the said offending grounds of appeal may be struck out. SEE: SANDEMA – NAB VS. ASANGALISA & ORS [1996- 1997] SCGLR 302; DAHABIEH V. S.A TURQUI & BROTHERS [2001- 2002] SCGLR 498 and INTERNATIONAL ROM LIMITED V. VODAFONE GHANA LIMITED; CIVIL APPEAL NO. J4/2/2016; DATED 6TH JUNE 2016. [11] Rule 6 (4) of the Supreme Court Rules,1996 (C.I6), requires that “the grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered seriatim; and where the ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.” We have examined grounds (b) – (h) of this appeal. The said grounds which are neither concise, nor under distinct heads are also a narrative. Due to the narrative nature of these grounds of appeal, the nature and particulars of the error of law complained of are not easily discernable. These grounds of appeal are clearly not in compliance with Rule 6 (4) of CI16.
As a matter of fact, the plaintiff did not provide the details, elements, specifics, or nature of the errors allegedly committed by the Court of Appeal and particulars for the plaintiff’s contention that the Court of Appeal erred when it held that the appellant failed to discharge the burden of persuasion and the evidential burden. We also find as a fact that the plaintiff’s use of the word “when” rendered the same ground 2 argumentative. Accordingly, we find ground 2 as having sinned and in violation of Rules 6 (4) and (5) of CI 16 and we accordingly strike it out for non-compliance with the rules of court.
It is imperative under the rules regulating procedure that, grounds of appeal are not argumentative nor narrative in formulation, but precise and concise. Indeed, while the rules require that, where an error or misdirection is alleged, the necessary particulars must be set out. In setting out the particulars, this must simply be an isolation of the specifics of the error. The rule does not warrant formulations in the nature of new grounds. Neither should the grounds be vague or left in general terms requiring further particularizations.
A ground of appeal, other than the omnibus ground, must give the precise particulars of the error, mistake or misdirection alleged; a ground that does no more than register dissatisfaction with the result, or that quarrels with the facts without identifying the supposed error of law, is defective and liable to be struck out.
As should be trite amongst practitioners any allegation of a commission of an error of law in an Appellant’s grounds of appeal carries a corollary obligation under Rules 6(2)f of the Supreme Court Rules, 1996 (C.I. 16) to particularize the said error and expatiate on the details of the error. A failure to do so therefore will render a ground of Appeal alleging an error of law inadmissible.
Rule 6(2)(f): particulars of error of law in a ground of appeal
In grounds C of the grounds of appeal, the appellants state that the learned justices of the Court of Appeal erred in their decision that respondent’s action is not statute-barred. The same goes for ground D of the appeal wherein the appellant states that the learned justices of the Court of Appeal erred in their finding that the land is Saasabi Stool Land. In both cases, no particulars of the error alleged were set out and the nature of the error committed by the learned justices of the Court of Appeal were not specified making the 2 grounds of appeal inadmissible. Accordingly grounds (c) and (d) of the notice of appeal are hereby struck out as being non-compliant with Rule 6(2) (f) of C. I. 16.
Rules 6(6) and 6(7): grounds not mentioned in the notice of appeal
Indeed, the approach of the Respondent in seeking to even argue against those findings of privity of the Appellant to the contract is procedurally misplaced not having filed any variation nor appeal against those findings in accordance with Rule 6(6) of the Supreme Court Rules, 1996 (C.I. 16) which provides that: “The Appellant shall not, without the leave of the Court, argue or be heard in support of any ground of appeal that is not mentioned in the notice of appeal.” In the instant case, the Respondent did not even cross-appeal to be deemed an “Appellant” within the meaning of Rule 6(6). I do acknowledge that, in appropriate circumstances, the court may exercise its discretion under Rule 6(7) to consider grounds not set out in the notice of appeal. However, I do not think that, such a situation presents itself to warrant the exercise of such discretion.
Rules 62 and 66: time for a supervisory application
It should be noted that, an application invoking our supervisory jurisdiction is constrained by time. This is regulated by Rules 62 and 66 of the Supreme Court Rules, 1996 (C.I.16) (as amended) which demands that, an application to invoke the supervisory jurisdiction of the Court shall be filed within 90 days of the date when the grounds for the application first arose unless the time is extended by the court.
