SARKWA AND ANOTHER v. AHUNAKU [1966] GLR 244

Division: SUPREME COURT

Date: 14 MARCH 1966

Before: OLLENNU, APALOO AND LASSEY JJ.S.C.

CASE REFERRED TO

Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C.

NATURE OF PROCEEDINGS

APPLICATION for review of an order dismissing an appeal as not being properly before the court.

COUNSEL

Harold Darko for the applicants.

C. F. Hayfron-Benjamin, Snr. for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the ruling of the court. In this application the court is invited to review its order of 7 December 1965, dismissing an appeal on the ground that the alleged appeal was not properly before it and the court was therefore void of jurisdiction to entertain it. The judgment against which the applicants sought to appeal is one given by the High Court in its appellate jurisdiction. Section 8 (1), proviso (a) (i) of the Courts Act, 1960,1 which sets out the jurisdiction of the court provides that: [p.245] of [1966] GLR 244 “an appeal shall lie to the Supreme Court from a judgment of the High Court in the exercise of its appellate jurisdiction on any matter except a matter arising out of a criminal case—

(i) where the High Court has affirmed the decision of the Court from which the appeal is made to the High Court, by special leave of the High Court. . . “ The undisputed interpretation of that provision of the Act is that unless special leave of appeal is granted no appeal can be filed against a judgment of the High Court exercising appellate jurisdiction and confirming a decision of the court from which the appeal came to it, and if an appeal purports to have been filed against such a judgment without special leave, the court should not have jurisdiction to entertain it.

Now, one of the main purposes of a review is to enable a court to correct an error appearing on the face of a judgment given by it: see Swaniker v. Adotei Twi II.2 A court cannot, therefore, entertain an application for review unless, among other things, it is shown that there is an error on the face of its judgment resulting from some cause or the other.

In this case there is no dispute (1) that the judgment of the High Court against which the applicants sought to appeal is one given in the exercise of its appellate jurisdiction, (2) that the judgment confirmed the decision of the court from which the appeal came to the High Court, and (3) that special leave to appeal was not obtained by the applicants before they purported to file their alleged appeal. It cannot therefore be said that there is an error apparent in the order of the court refusing to exercise jurisdiction; and counsel for the applicants has not been able to allege or point out any matters which can disclose an error inherent therein.

Counsel however alleges that the procedure and manner in which the High Court dealt with the appeal before it led the applicants and their legal advisers, honestly, though erroneously, to assume that it was exercising original and not appellate jurisdiction, and that therefore special leave to appeal is not a condition precedent to appeal.

It would appear that when the appeal came before it, the High Court in exercise of its power under section 50 of the Native Courts Ordinance,3 then in force, the learned judge decided to hear the case in whole, he thereupon directed pleadings to be filed, admitted a counterclaim filed with the defence, had a plan of the area in dispute made, and took fresh evidence both oral and documentary; and finally he gave judgment for the plaintiff affirming the judgment

[p.246] of [1966] GLR 244 appealed from, but without saying specifically that he was confirming it, and without stating that he had dismissed the appeal. Again, in the course of his judgment the learned judge said that he was not considering the evidence led in the lower courts except such portions of it as either counsel considered were important for his case and specifically referred him to. Counsel submitted that in ordering pleadings and a plan, and entertaining a counterclaim, the High Court followed the practice and procedure usually employed by it when exercising original jurisdiction and it must therefore be deemed to have entertained the case in its original and not appellate jurisdiction, and that it must be assumed that when the High Court ordered that it would hear the appeal in whole it thereby inferentially set aside the proceedings and judgment of the court below, and must be deemed to have thereby transferred the case from the court below to itself for trial at first instance.

These submissions of counsel are untenable. The case came before the High Court on appeal, and all the orders the High Court made therein including the orders for pleadings and plan were made in the exercise of the powers given it under section 50 of Cap. 98 to exercise appellate jurisdiction. That being the case, there will be no jurisdiction in the court to entertain an appeal from that decision of the High Court unless special leave to appeal therefrom was first had and obtained in compliance with proviso (a) (i) to section 8

(1) of the Courts Act, 1960.

Since the applicants have not been able to point out any error or omission apparent or latent in the order of the court dismissing the appeal, which should, in the interest of justice, be corrected, their application for review is without merit, and should be dismissed. It is accordingly dismissed with costs for the respondent.

DECISION

Application dismissed.

E. D. K.