KOTEY vs. KOLETEY [1999-2000] 2 GLR 641

CASES REFERRED TO

(1) Imbeah v Ababio [1999-2000] 2 GLR 295, SC; [2000] SC GLR 259.

(2) Dolphyne (No 2) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 373.

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

(4) Allen v Sir Alfred Mclphine & Sons Ltd [1968] 2 QB 299; [1968] 1 All ER 543; [1968] 2 WLR 306, CA.

(5) Agyiliha v Tayee [1975] 1 GLR 433, CA.

(6) Darkwa v Kwabi IV [1992-93] GBR 380, SC.

(7) Frimpong v Nyarko [1997-98] 1 GLR 429, SC; [1998-99] SC GLR 734.

(8) Gatti v Shoosmith [1939] 1 Ch 841; [1939] 3 All ER 916.

(9) Azorblie v Ankrah II [1984-86] 1 GLR 561, CA.

(10) Nyarko v Lutterodt [1984-86] 1 GLR 437, CA.

(11) Nair v Teik [1967] 2 All ER 34, PC.

(12) Republic v High Court; Accra, Ex parte Darke XII [1992] 2 GLR 688, SC.

(13) Dede v Ansah [1980] GLR 746.

(14) Nsiah v Amankwaah [1996-97] SC GLR 453.

[p.645] of [1999-2000] 2 GLR 641 (15) Blunt v Blunt [1943] AC 517; [1942] 2 All ER 613; 112 LJP 58, HL.

(16) Hyman v Rose [1912] AC 623; [1911-13] All ER 238; 81 LJ KB 1062, HL.

(17) Nsiah v Amankwaah; Nsiah v Mansah (Consolidated) [1997-98] 2 GLR 236, SC; [1998-99] SC GLR 132.

(18) Khoury v Mitchual [1989-90] 2 GLR 256, SC.

(19) Lutterodt v Nyarko [1984-86] 1 GLR 237, CA.

(20) Carson v Carson [1983] 1 All ER 478, CA.

(21) Adabla v Gbevlo Agama [1939] 3 All ER 381, PC.

(22) Adjeioda v CFAO [1971] 2 GLR 11.

(23) Easton v Brown [1981] 3 All ER 278.

(24) Willis v Earl Beauchamp 5 (1886) 11 PD 59; 54 LT 185; 2 TLR 270, CA.

(25) R v Secretary of State for Home Department; Ex parte Al-Mehdawi [1989] 1 All ER 777; [1989] 2 WLR 603, CA.

(26) Ahumah v Akorli (No 2) [1975] 1 GLR 473, CA.

Application under article 13(2) of Constitution, 1992 for special leave to appeal to the Supreme Court from a decision of the Court of Appeal.

J K Ahenkora for the applicant.

Awere Awuku for the respondent.

Bamford Addo JSC. This is a motion for special leave to appeal to the Supreme Court from the decision of the Court of Appeal under article 131(2) of the Constitution, 1992. The appellate jurisdiction of the Supreme Court can be found in article 131(2) thereof which provides as follows:

“131. (1) An appeal shall be from a Judgment of the Court of Appeal to the Supreme Court—

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a

Regional Tribunal in the exercise of its original jurisdiction; or

(b) with leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a

[p.646] of [1999-2000] 2 GLR 641

Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.

(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.”

The right of appeal in article 131(1)(a) of the Constitution, 1992 is as of right, but that under 131(1)(b) requires leave from the Court of Appeal. If refused, the application could be made for special leave under article 131(2) of the Constitution, 1992. The application for special leave where leave has been refused by the Court of Appeal is governed by rule 7(2) of the Supreme Court Rules, 1996 (CI 16). Rule 7(4) of CI 16 governs an application for special leave made straight to the Supreme Court. Whereas in the grant of special leave under rule 7(2) of CI 16, time limit of fourteen days was prescribed, that under rule 7(4) of CI 16 provides no time limit: Rule 7(4) of CI 16 states:

“(4) Notwithstanding sub-rules (1) to (3) of this rule an application for special leave to appeal under clause (2) of article 131 shall be entertained by the Court and the Court may grant leave on such terms as the Court may consider fit having regard to the circumstances of the case.”

In this present case the judgment of the Court of Appeal against which an appeal is sought is dated 23 December 1999 and the applicant had fourteen days therefrom to apply to the Court of Appeal for leave to appeal to the Supreme Court under rule 7(1) of CI 16, since the case commenced in the circuit court. The applicant failed to apply to the Court of Appeal for leave to appeal to the Supreme Court within the specified limitation period. According to him, his failure to comply with the rule was due to the fact that he had to look for a lawyer and then his lawyer first applied to the Court of Appeal for stay of execution which was dismissed before realising that the application should have been made within fourteen days, which time had by then already passed. It was after the dismissal of the stay of execution that the applicant’s counsel realised that he was out of time and could not therefore apply for leave under rules 7(1) or 7(2) of CI 16 as the

[p.647] of [1999-2000] 2 GLR 641 time limited for applying had expired. Since, as was held in Imbeah v Ababio [2000] SC GLR 259, the taking of a false step by an applicant does not prevent time from running against him, the applicant had no alternative than to avail himself of rule 7(4) of CI 16 which provided no time limit, and applied directly to this court for special leave to appeal. According to Mr Ahenkorah, counsel for the applicant, not having availed himself of rules 7(1) and (2) of CI 16, he was entitled to apply to the Supreme Court for special leave under rule 7(4) of CI 16.

Mr Awere, counsel for the respondent, opposed the application for special leave on the grounds that where the right of appeal is given, invariably time limit for appealing is imposed, otherwise a victorious party cannot celebrate his victory. He submitted that the time limit of fourteen days within which to apply for leave or special leave under rule 7(1) and (2) of CI 16 should also apply to cases where leave is sought under rule 7(4) of CI 16 even though no time limit was specified under that rule, which left the matter at large. The special leave referred to by article 131(2) of the Constitution, 1992 and rule 7(4) CI 16 is very special indeed and it is also unfettered by any rules or law since the grant of leave was left entirely at the discretion of the Supreme Court. This leave is under section 4(5) of the Courts Act, 1993 (Act 459) not subject to any condition of appeal in CI 16. It is a special favour which is given to litigants who have good and valid appeals to enable them to appeal even though they are under the rules out of time within which to appeal so as to prevent a failure of justice. The conditions and guidelines for the grant of the said special leave were discussed in the case of Dolphyne (No 2) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 373 where it was held, as stated in the headnote, holdings (1)–(3)) that:

“(1) The provision in article 131(2) of the 1992 Constitution, must govern the provisions of article 131(1)(a) and (b). The word ‘Notwithstanding’ in article 131(2) meant that without being affected by the provisions of article 131(1), the Supreme Court might entertain an application for special leave to appeal in respect of appeals from any decision or judgment of the Court of Appeal and no other court.

Thus the Supreme Court might in appropriate cases ignore the provision of article 131(1) and grant special leave to appeal—

[p.648] of [1999-2000] 2 GLR 641 bearing in mind the facts of each case and need to prevent a failure of justice . . .

(2) In exercising its unfettered discretion under article 131(2) of the 1992 Constitution, the Supreme

Court was not bound by any rules of practice or procedure nor any legislation . . .

(3) The principles – to be applied as guides – on which the Supreme Court might determine whether to grant leave to appeal or not were:

(a) where there was a prima facie error on the face of the record; or (b) a general principle of law had arisen for the first time; or (c) a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public. Nimoh v Dadzie [1962] GLR 327 applied.”

The Dolphyne case (supra) did not specify a time limit within which an application for special leave could be brought but, as stated by Charles Hayfron-Benjamin JSC in his dictum at 378-379 of the report: “This court being the highest court of the land must necessarily be vested with unfettered discretion to do justice in appropriate cases and that is the true intendment of article 131(2) of the 1992 Constitution.”

I agree with him on this. As I understand holding (2) above, it refers to the “unfettered discretion” of the Supreme Court, to grant special leave. Since no conditions were imposed under the rules and the matter was left at large in article 131(2) and rule 7(4) of CI 16, the grant of special leave is at the discretion of the court and not fettered by any rules of procedure or any law; nor should the court lay down a set of iron rules “on which the discretion of the court was always obliged to run”: see the dictum of Bowen L J in the English case of Re Manchester Economic Building Society (1883) 24 ChD 488 at 503, which was quoted with approval in the Dolphyne case (supra) at 349, as follows:

“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

[p.649] of [1999-2000] 2 GLR 641 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 great danger, as it seems to me, of crystallizing into a rigid definition, that judicial power and discretion which the legislature and Rules of the Court have for the best of all reasons left undetermined 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 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 shown that injustice was likely to rise 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?”

The time within which an application for special leave under rule 7(4) of CI 16 can be brought, as I said, depends on the discretion of the Supreme Court, and the court must also be satisfied that the case involves a substantial question of law or is in the public interest. The principles to be applied are as set out in holding (3) above in the Dolphyne case (supra). But quite apart from the guidelines provided in that case, I hold the view that the court’s discretion must be judicially and reasonably exercised considering such other matters as public policy, and other principles concerning the necessity for finality in litigation as well as the need for prevention of delay in the administration of justice. Bearing in mind that inordinate delay in pursuing an appeal could adversely affect the acquired rights of other parties with consequent injustice to them. In Allen v Sir Alfred Mac Alpine and Sons Ltd [1968] 1 All ER 543 at 547, CA Lord Denning MR said:

“The principle upon which we go is clear: when the delay is prolonged and inexcusable and is such as to do grave injustice to one side or the other or to both, the court may in its discretion dismiss the action straight away leaving the plaintiff to his remedy against his own solicitor who has brought him to his plight.”

As to the principle that litigation must come to an end, Apaloo J (as he then was) stated in the case of Agyiliha v Tayee [1975] 1GLR 433 at 447 that:

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“In any event, one should hold that the conclusion of a case by pronouncement of a decision must exhaust the exercise of the courts jurisdiction over the eadem res. A court might not, in principle, be held to have perpetual jurisdiction over the same matter.”

It is for this reason that normally time limits are fixed in rules governing court procedures. Example is that in granting extension of the time, limitation is imposed; and in this regard, see rule 8 of CI 16 which provided that an appeal cannot be filed within a total of six months time limit from the date of the decision sought to be appealed. This is designed to avoid delay in litigation and to enable the courts to administer swift justice. The case of Darkwa v Kwabi IV [1992-93] GBR 380, per Wuaku JSC (as he then was), highlights these objectives. It was held there that:

“The rules must prima facie be obeyed otherwise, as it was held by the Privy Council in Ratnam v Cumarasamy [1965] 1 WLR 8, PC, a party would have unqualified right to extension which would defeat the purpose of the rules which was to provide a time table for litigation. See also the case of Revici v Prentice Hall Incorporated [1969] 1 WLR 157 CA.”

It seems to me that if only six months time limit is allowed in an ordinary civil appeal where the appellant has been diligent in applying for extension of time to enable him to appeal, it would be proper and fair for this court to take this particular point into account when exercising its discretion on account of time to grant special leave, of course depending on the circumstances of each particular case. In some cases, six months time limit ought be just and reasonable while in others admittedly longer period of time ought to be allowed. It would be just however to ensure that indolent litigants are not allowed to benefit from their sloth to the disadvantage of the vigilant litigant. This is a balancing act which the courts have always performed creditably and admirably. Considering the grounds of appeal, there appears to be prima face errors on the face of the judgment of the Court of Appeal, and a decision of the Supreme Court on those issues I think would enure to the benefit of the public. Further, the applicant attributes the reason for the delay in applying for leave to his lawyer. He said in paragraphs (8)–(9) of his affidavit that:

[p.651] of [1999-2000] 2 GLR 641

“(8) That on contacting the lawyer, he informed me that while busy working on the motion for stay of execution, it had escaped his mind that this is a case commenced in a circuit court which is below the High Court, so I cannot appeal to the Supreme Court as of right but I require leave of the Court of

Appeal or special leave of the Supreme Court before an appeal could be filed by me.

(9) That I then asked him to seek the necessary leave to enable the appeal to be filed but he told me that by that date, 11th of this month, the time for applying for leave from the Court of Appeal had expired and so the only thing left was for me to apply for special leave of the Supreme Court to make the appeal, hence this application.”

If so, then it would be unfair to penalise the applicant for the mistake of his counsel who instead of first applying for leave, rather wasted time applying for stay of execution. In the case of Frimpong v Nyako [1998-99] SC GLR 734, it was held, as stated in holding (5), that a party is generally not to be penalized for the misconduct of a court official. See also the English case of Gatti v Shoosmith [1939] Ch 841 at 845-846 where the Court of Appeal per Sir Wilfred Greene MR said:

“On the 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 the mistake on the part of a legal adviser, 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. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. 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

[p.652] of [1999-2000] 2 GLR 641 of this particular case, that discretion should be exercised. I should have thought it was this one. We are not, I think, concerned here with any question at all as to the merits of this case or the probability of success or otherwise. The reason for the appellant’s failure to institute his appeal in due time was as a mere misunderstanding, deposed to on affidavit by the managing clerk of the appellant’s solicitor—a misunderstanding which, to anyone who was reading the rule without having the authorities in mind, might very well have arisen. The period involved is a very short one, it is only a matter of a few days, and the appellant’s solicitors, within time, informed the respondent’s solicitors by letter of their client’s intention to appeal. That was done within the strict time, and the fact that the notice of appeal was not served within the strict time was due entirely to this misunderstanding. On the facts of this case, it appears to me that the case is one where the discretion of the Court ought to be exercised; and accordingly, leave will be given.”

The above case has relevance to this particular case. Applying the guidelines enumerated above and considering the circumstances of this particular case, I am of the view that this is a proper case in which to exercise our discretion in favour of the applicant and grant him special leave to enable him to appeal.

I will accordingly grant special leave to the applicant to appeal.

Kpegah JSC. I have decided to offer no written opinion in this case but will vote that the application be allowed.

Adjabeng JSC. This is an application for special leave to appeal to this court against the decision of the Court of Appeal which had reversed the judgment of the trial Circuit Court, Somanya, sitting at Krobo Odumase. It is the contention of the applicant’s counsel that the applicant has the right to be in this court for special leave, even though, he had not first applied to the Court of Appeal for leave. Counsel for the respondent contends otherwise.

The Court of Appeal gave judgment for the respondent herein on 23 December 1999, in an appeal lodged by the respondent against a decision given by the said Circuit Court, Somanya, in favour of the applicant herein in respect of a piece of land in the

[p.653] of [1999-2000] 2 GLR 641 possession of the applicant. In his affidavit in support of the application, the applicant deposed, inter alia, as follows:

“(4) That after the judgment of the Court of Appeal, I decided to engage a new lawyer to handle the proposed appeal and related application for stay of execution but as the last Christmas was only one day from the date of the judgment and everybody, including lawyers, was very busy preparing for Christmas I could not get a lawyer before the Christmas who would listen to me and decide if he could be of help to me.

(5) That consequently, it was not until after the Christmas that I could get a lawyer who accepted to handle the appeal for me but since, as stated above, my fear was that unless prompt steps were taken in that direction the judgment in favour of the defendant might at any time be enforced against me, I instructed the lawyer to act quickly in getting a motion for stay of execution filed for me.

(6) That as he was new to the case, the lawyer asked to be given time to study the appeal record to the Court of Appeal, a copy of which I furnished him later as a result of that, and because his office was th closed for the Christmas holidays it was not until 5 of this month that he was able to give me a motion for stay of execution which I filed in the Court of Appeal that same day.

(7) That on filing the motion, I took a copy to Somanya that day for service on the defendant for him to become aware that it was not possible for him to enforce the judgment given in [his] favour on the counterclaim;. . .

(8) That on contacting the lawyer, he informed me that while busy working on the motion for stay of execution, it has escaped his mind that this is a case commenced in a circuit court which is below the High Court and so I cannot appeal to the Supreme Court as of right but I required leave of the Court of Appeal or special leave of the Supreme Court before an appeal could be filed by me.

(9) That I then asked him to seek the necessary leave to enable the appeal to be filed but he told me that by that date, 11th of this month, the time for applying for leave

[p.654] of [1999-2000] 2 GLR 641 from the Court of Appeal had expired and so the only thing left was for me to apply for special leave of the Supreme Court to make the appeal, hence this application.”

The applicant has listed in his affidavits in support of the application more than eleven grounds upon which he intends to appeal. It is the applicant’s contention that the Court of Appeal failed to take into account some matters in coming to its decision. Some of these matters as listed in the original affidavit in support are as follows:

“(d) The sale transaction could not in all probability have been in relation to part only of the land which I was already in occupation [SIC] since the purchase price was agreed by the two of us at ¢50,000 and I fully paid it to the defendant for which he issued a receipt, although that receipt purports to say that only part of that land had been sold.

(e) Having received full payment allegedly for part only of the land sold or to be sold to me, the defendant immediately came under an equitable obligation to define the extent of the land sold or to be sold to me, if that part was not already defined, since I had all along been in occupation of the whole land and thereafter continued to do so and that by neglecting to expressly define the portion sold or to be sold to me the defendant had impliedly demarcated that portion by reference to so much of it as I thereafter, to his knowledge and without his objection, occupied as a purchaser in possession.

(f) The failure of the defendant to give any tangible reason for his failure to demarcate the portion sold or to be sold to me when he had taken the full purchase money from me and I had been in possession of the whole land without paying rent from 1989, when the 1985 tenancy agreement was to expire, signified that he had impliedly delivered possession of the entire land to me as a purchaser who had paid the full purchase price and so fully performed all that I was required to do under the contract of sale.

(g) As two Ghanaians, the 1986 transaction between me and the defendant prima facie suggested a transaction under

[p.655] of [1999-2000] 2 GLR 641 customary law so as to make me owner of the land when I had paid the purchase money in full and had been allowed to go into occupation as owner by the seller.

(h) The rule, certum est qui certum reddi in relation to the problem of certainty, is applicable to this case once I had been occupying the land since 1986 as purchaser.

(i) The sheer inequitable nature of the defendant’s counterclaim made in 1997 for recovery of the whole land when I had already paid the full purchase money to him since 1986, a whole period of 11 years earlier, and had all that period been in possession and the sale transaction had not been mutually rescinded or abrogated and he was and is still keeping the purchase money thereby unjustly enriching himself at my expense.

(j) Allowing the defendant’s counterclaim was tantamount to enabling him to take advantage of his own wrong of having neglected during a whole period of eleven years to demarcate the part of the land sold or to be sold to me when he had already taken the full purchase price from me and had every opportunity to make such demarcation as I was all the time on the land and therefore available to participate in any such demarcation.

(k) The sheer repugnancy to equity and good conscience of the defendant’s counterclaim when, if the extent of the land sold or to be sold really still remained undefined, then that was due to his own fault and I was completely blameless and had, on the assumption that I owned the land as a purchaser, made considerable expenditure in improving the land.”

The applicant, therefore, deposed in paragraph (11) of his affidavit as follows:

“(11) That I am advised by counsel and verily believe the same to be true that the matters raised above are sufficient to show that the judgment of the Court of Appeal must be wrong and unfair to me since it has deprived me, not only of the ¢50,000 I paid since 1986, but also of the benefit of the expenses I incurred in developing the land as a purchaser who had lawfully been put into possession by his vendor since 1986 or at

[p.656] of [1999-2000] 2 GLR 641 least since the end of April, 1989 when the tenancy agreement of 1985 was supposed to end.”

The respondent’s answer to the application is of a technical nature. In paragraphs (4) and (5) of his affidavit in opposition, the respondent has deposed as follows:

“(4) That I am informed by my solicitor and I verily believe the same to be true that the applicant’s motion for special leave to appeal was statute barred at the time he filed the motion, since it was not brought within the fourteen days of the judgment delivered by the Court of Appeal on 23 December 1999.

(5) That again I am informed by my solicitor and verily believe same to be true that the combined effect of paragraphs (1), (2) and (4) of rule 7 of CI 16 is that the intended appellant against the Court of Appeal’s judgment, who needs special leave to appeal when the case emanated below High Court, as in the instant case, has two forums open to him; that is, he could either go to Court of Appeal for the said special leave or go to Supreme Court for the name special leave, but, in any event, he must do so within fourteen days from the date of judgment against which special leave to appeal is sought from either of the forums, for:

(a) it cannot be said that in event of special leave to appeal to Supreme Court under rule 7(4), the intended appellant has no time limit within which he is to seek the said leave; and

(b) it is unwarranted to say that in procedural law concerning appeal against a decision or judgment, the law maker would not set up time limit within which to take a step; if this were so, then a victorious party would never know when to celebrate and enjoy the fruits of victory of the litigation, and no litigation shall ever end.”

Rule 7(4) of the Supreme Court Rules, 1996 (CI 16), upon which this application is based, provides as follows:

“(4) Notwithstanding sub rules (1) to (3) of this rule an application for special leave to appeal under clause (2) of article 131 shall be entertained by the Court and the Court

[p.657] of [1999-2000] 2 GLR 641 may grant leave on such terms as the Court may consider fit having regard to the circumstances of the case.”

Clause (2) of article 131 of the Constitution, 1992 mentioned in sub rules (2) and (4) of rule 7 of CI 16 provides as follows:

“(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.”

This court had the opportunity in the case of Dolphyne (No 2) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 373, to pronounce on the above constitutional provision. In the headnote of the said report at 374, this court held, as stated in the headnote, as follows:

“(1) the provision in article 131(2) of the 1992 Constitution, must govern the provisions of article 131(1)(a) and (b). The word ‘Notwithstanding’ in article 131(2) meant that without being affected by the provisions of article 131(1), the Supreme Court might entertain an application for special leave to appeal in respect of appeals from any decision or judgment of the Court of Appeal and no other court.

Thus the Supreme Court might in appropriate cases ignore the provisions of article 131(1) and grant special leave to appeal—bearing in mind the facts of each case and need to prevent a failure of justice.

To so hold would not be opening the ‘floodgates’ to incompetent appeals as contended by the respondents in opposing the application ….

Per curiam. In … our opinion… 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 vested with unfettered discretion to do justice in appropriate cases and that is the true intendment of article 131(2) of the 1992 Constitution.”

The guiding principles which ought to be applied in granting such an application for special leave to appeal have also been stated by this court in its holding (3) in the said Dolphyne (No 2)case (supra) as follows:

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“(3) The principles to be applied as guides on which the Supreme Court might determine whether to grant special leave to appeal or not were:

(a) where there was a prima facie error on the face of the record; or (b) a general principle of law had arisen for the first time; or (c) a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public. Nyimoh v Dadzie [1962] 1 GLR 327 applied.

Per curiam. We would . . . like to observe a close similarity between the grounds for the grant of special leave as enunciated in Nyimoh v Dadzie (supra) and article 131(1)(b) of the 1992 Constitution where in granting leave, the Court of Appeal might be ‘satisfied that the case involves a substantial question of law or is in the public interest.”

It is quite clear from subrule 4 of rule 7 of CI 16, and from its parent provision, article 131(2), both quoted above, that the Supreme Court has an unfettered discretion to grant an application for special leave to appeal in appropriate cases. This, as correctly held by this court in the Dolphyne (No 2) case (supra) is to enable this court, being the highest court of the land, to have unfettered discretion to do justice in appropriate cases in order to prevent a failure of justice or injustice. And this discretion is not to be affected by the time limit of fourteen days mentioned in rule 7(1) and (2) of CI 16. It means therefore that the Supreme Court can grant an application for special leave to appeal from a decision of the Court of Appeal even though it was not filed within fourteen days from the date of the judgment or order sought to be appealed against, or even if the prospective appellant had failed to first apply to the Court of Appeal. That is the meaning of article 131(2) of the Constitution, 1992 and rule 7(4) of CI 16.

In the light of the above, it is clear that the contention of the respondent’s counsel in the present application before us that this court cannot entertain this application since it was not filed within fourteen days is untenable. No time limit has been set under rule 7(4) or article 131(2) of the Constitution, 1992. This court also held in its holding (2) in the Dolphyne case (supra) that: “(2) In exercising its unfettered discretion under article 131(2) of the

[p.659] of [1999-2000] 2 GLR 641

1992 Constitution, the Supreme Court was not bound by any rules of practice or procedure nor any legislation.” At first, I thought that the above pronouncement was too wide as an appeal ought to be brought within a limited period according to the rules, and that if it is not brought within that period it cannot be a valid appeal. For example, including the period within which the court can extend the period, an appeal must be brought within six months from the date of the judgment or order appealed against: see rule 8 of CI 16. However, on reading carefully section 4 of the Courts Act, 1993 (Act 459), which section deals with this court’s appellate jurisdiction, I have come to the conclusion that this court’s said pronouncement in its holding (2) in the Dolphyne case (supra) is correct.

That is to say that under article 131(2) of the Constitution, 1992 as reproduced in section 4(2) of Act 459, and in rule 7(4) of CI 16, this court has an unfettered discretion to grant an application for special leave to appeal to the Supreme Court from any decision of the Court of Appeal, and that in exercising this discretion, the court is not bound by any rules of practice or procedure or any legislation. I say so first, because article 131(2) of the Constitution, 1992 does not prescribe any restriction, condition or time limit in respect of the exercise of the discretion given under it. Secondly, Act 459, which reproduces the above constitutional provision in its section 4(2), also does not impose any restrictions in the exercise of the discretion given to the court. But, more importantly, section 4(5) of the said Act 459, which prescribes that “the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Courts,” exempts section 4(2) of Act 459 from any such conditions. In other words, the court’s discretion to grant special leave to appeal under article 131(2) of the Constitution, 1992, section 4(2) of 459 and rule 7(4) of the CI 16, is not subject to any conditions of appeal prescribed under the Rules of Court. Consequently, all the conditions listed in rule 8 of the CI 16, including time limits, would not apply when this court is exercising its discretion to grant special leave to appeal under article 131(2) of the Constitution, 1992 or section 4(2) of Act 459 or rule 7(4) of CI 16.

Having come to the conclusion that this court can entertain the present application before the court, I must now consider whether or not the application merits the exercise of our discretion. In my

[p.660] of [1999-2000] 2 GLR 641 view, the applicant has raised serious legal questions about the judgment of the Court of Appeal which ought to be considered on appeal by this court. And, in order not to prejudice the appeal which is yet to be filed, I do not intend to go into details. I would only say that after reading the judgment of the Court of Appeal and the grounds stated in the applicant’s original and supplementary affidavits, I am of the view that there was evidence that the respondent took money from the applicant and issued a receipt on it in which he stated that the money was the purchase price for land he had sold to the applicant. It does not seem that the Court of Appeal gave this issue the serious consideration it deserved, especially when there was evidence that the applicant was in possession of the property for a long time. Nor did the court seem to have given the receipt issued by the respondent the correct appreciation.

Moreover, I strongly believe that it would be unjust to blame the applicant personally for the difficulties in which he found himself. The one who brought about these difficulties is the applicant’s solicitor. He filed the wrong application, an application for stay of execution of the judgment, when the proper thing to file in such circumstances would be either a notice of appeal or an application for leave to appeal. In this case the applicant’s lawyer should have filed an application for leave to appeal since the action started from the circuit court and not the High Court. If the application filed at the Court of Appeal on 5 January 2000 was the proper application, that is, for leave to appeal, it would have been within the fourteen days required by the rules since the judgment of the Court of Appeal was delivered on 23 December 1999. This shows that the applicant went to see the lawyer early but the lawyer who should know what application to file, and not the applicant who engaged him, filed the wrong application within time. It would be most unjust in the circumstances to blame the applicant and deny him his right to appeal even though he seems to have a good case. In the English case of Gatti v Shoosmith [1939] 1 Ch 841 at 845, 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, may be a sufficient cause to justify the Court in exercising its discretion.”

[p.661] of [1999-2000] 2 GLR 641

From the reasons given above, I am of the firm view that this is a proper case in which this court ought to exercise its discretion under article 131(2) of the Constitution, 1992, and rule 7(4) of CI 16 in favour of the applicant and grant him special leave to appeal. I would therefore grant the application.

Acquah JSC. My lords, the issue for consideration in this ruling is whether an application for special leave to appeal to the Supreme Court under article 131(2) of the Constitution, 1992 is regulated by time. But first the background of the case.

One Joseph Kotey, the applicant in this application, issued a writ of summons on 8 January 1997 at the Circuit Court, Somanya against Peter Kofi Koletey for the following relief:

“The plaintiffs claim from the defendant is for specific performance of the agreement for the sale of a plot of land at Ahiawoma at Somanya Zongo opposite to SSNIT office at Somanya being an area measuring 100 x 100 feet where plaintiff has been moulding cement blocks for sale. The defendant has given possession but refuses to execute an indenture in favour of plaintiff.”

The defendant, on the other hand, counterclaimed in respect of the same land for:

“(1) Declaration of title to the land described in paragraph (3) above.

(2) Damages for breach of contract.

(3) Damages for trespass of land described in paragraph (3).

(4) Recovery of possession.

(5) Perpetual Injunction restraining the plaintiff, his workmen, servants assigns and agents from entering or remaining on the land in dispute.”

On 19 August 1998, the trial circuit court judge gave judgment for the plaintiff and dismissed the defendant’s counterclaim. The Court of Appeal on 23 December 1999 allowed the appeal of the defendant and entered judgment for the defendant on his counter-claim for ¢500,000 damages for breach of contract, and damages for trespass. The damages for trespass was assessed as the arrears of rent from the expiration of the lease agreement to the date of judgment. What happened thereafter is narrated by the plaintiff in

[p.662] of [1999-2000] 2 GLR 641 paragraph (3) to (9) of his affidavit filed on 17 January 2000 in support of his application for special leave:

“(3) That not being satisfied with the judgment of the Court of Appeal, I desired to appeal to the Supreme Court, but in view of the Court of Appeal judgment in favour of the defendant on his counterclaim against me my immediate concern was to obtain an order of stay of execution from the Court of Appeal against enforcement of its judgment since I entertained the fear that the defendant might seek to enforce it against me before the appeal contemplated by me could be filed.

(4) That, after the judgment of the Court of Appeal, I decided to engage a new lawyer to handle the proposed appeal and related application for stay of execution but as the last Christmas was only one day from the date of the judgment and everybody, including lawyers, was very busy preparing for the Christmas, I could not get a lawyer before the Christmas who would listen to me and decide if he could be of help to me.

(5) That consequently, it was not until after the Christmas that I could get a lawyer who accepted to handle the appeal for me but since, as stated above, my fear was that unless prompt steps were taken in that direction the judgment in favour of the defendant might at any time be enforced against me, I instructed the lawyer to act quickly in getting a motion for stay of execution filed for me.

(6) That as he was new to the case, the lawyer asked to be given time to study the appeal record to the Court of Appeal a copy of which I furnished him later as a result of that and because his office was closed for the Christmas holidays it was not until 5th of this month that he was able to give me a motion for stay of execution which I filed in the Court of Appeal that same day.

(7) That on filing the motion, I took a copy to Somanya that day for service on the defendant for him to become aware that it was not possible for him to enforce the judgment given in his favour on the counterclaim; it was after I had done these I went back to the lawyer to collect

[p.663] of [1999-2000] 2 GLR 641 and file the papers for the appeal to the Supreme Court which I had proposed to make.

(8) That on contacting the lawyer, he informed me that while busy working on the motion for stay of execution, it had escaped his mind that this is a case commenced in a circuit court which is below the High Court and so I cannot appeal to the Supreme Court as of right but I required leave of the Court of Appeal or special leave of the Supreme Court before an appeal could be filed by me.

(9) That I then asked him to seek the necessary leave to enable the appeal to be filed but he told me that th by that date, 11 of this month, the time for applying for leave from the Court of Appeal had expired and so the only thing left was for me to apply for special leave of the Supreme Court to make the appeal, hence this application.”

In his affidavit filed on 28 February 2000 opposing the application, particularly at paragraphs (4) and (5), the defendant-respondent averred:

“(4) That I am informed by my solicitor and verily believe the same to be true that the applicant’s motion for special leave to appeal was statute-barred at the time he filed the motion since it was not brought within the fourteen days of the judgment delivered by the Court of Appeal on 23 December 1999.

(5) That again I am informed by my solicitor and I verily believe same to be true that the combined effect of paragraphs (1), (2) and (4) of rule 7 of CI 16 is that the intended appellant against the Court of Appeal’s judgment, who needs special leave to appeal when the case emanated below High Court, as in the instant case, has two forums open to him; that is, he could either go to Court of Appeal for the said special leave or go to Supreme Court for the same special leave but, in any event, he must do so within fourteen days from the date of judgment against which special leave to appeal is sought from either of the two forums for:

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(a) it cannot be said that in event of special leave to appeal to Supreme Court under rule 7(4), the intended appellant has no time limit within which he is to seek the said leave; and

(b) it is unwarranted to say that in procedural law concerning appeal against a decision or judgment the law maker would not set up time limit within which to take a step; if this were so then a victorious party would never known when to celebrate and enjoy the fruits of victory of the litigation, and no litigation shall ever end.”

The defendant’s objection therefore is that the plaintiff ought to have come within fourteen days from the date the Court of Appeal delivered its judgment, which was 23 December 1999.

Now, from the facts, this is a case which emanated from the circuit court, that is, a court below the High Court and therefore an appeal from the judgment of the Court of Appeal is required by article 131(1)(b) of the Constitution, 1992 to be with the leave of the Court of Appeal. And regulation 7(1) of CI 16 governs applications for such leave. The rule reads:

“7. (1) An application for leave to appeal under paragraph (b) of clause (1) of article 131 of the Constitution shall be by emotion on notice in the Form 2 set out in Part 1 of the Schedule to these Rules and shall be filed with the Registrar of the court below within fourteen days of the date of the decision against which leave to appeal is sought.”

(The emphasis is mine.) Thus, the leave to appeal under article 131(1)(b) of the Constitution, 1992 must be filed within fourteen days. But as the applicant herein concedes he had not complied with this requirement and therefore now seeks special leave under article 131(2) of the Constitution, 1992.

Application for special leave to appeal is provided in regulation 7(2) and 7(4) of CI 16 which reads as follows:

“7. (2) An application for special leave to appeal under clause (2) of article 131 of the constitution shall be by motion on notice in the Form 3 set out in Part 1 of the Schedule to these Rules, and shall be filed with the Registrar of the Court within fourteen days of the refusal of the court below to grant leave to appeal.

[p.665] of [1999-2000] 2 GLR 641

(4) Notwithstanding sub rules (1) to (3) of this rule an application for special leave to appeal under clause (2) of article 131 shall be entertained by the Court and the Court may grant leave on such terms as the Court may consider fit having regard to the circumstances of the case.”

What is the import of these two regulations both of which talk of special leave under article 131(2) of the Constitution, 1992? It is indeed important to appreciate that the concept of granting special leave to appeal is not new in our jurisprudence. It existed in the Courts Act, 1960 (CA 9), s 8(1) proviso (a)(i) wherein the High Court had power under certain circumstances to grant special leave to appeal to the then Supreme Court. And in the case of the Supreme Court’s power to grant special leave, the Constitution, 1969 granted same in article 105(4); the Constitution, 1979 in its article 117(2); while, as we have seen, the Constitution, 1992 granted the same power in article 131(2). The language of the constitutional provisions in the Constitutions, 1960, 1979 and 1992 in respect of special leave to appeal are the same.

However, rule 7 of the Supreme Court Rules, 1970 (CI 13) (now repealed) which dealt with appeals by leave and special leave under the Constitution, 1969 did not have any regulation like rule 7(4) of the present CI 16. The whole of rule 7 of CI 13 read:

“7. (1) An application for leave to appeal pursuant to the provisions of paragraph (c) of clause (1) of article 105 of the Constitution shall be by motion on notice in the Form 2 set out in the First Schedule to these Rules which shall be filed with the Registrar of the Court below within fourteen days of the date of the decision against which leave to appeal is sought.

(2) An application for special leave to appeal pursuant to the provisions of clause (2) of article 105 of the Constitution shall be by motion on notice in the Form 3 set out in the First Schedule to these Rules, which shall be filed with the Registrar of the Court within fourteen days of the refusal of the court below to grant leave to appeal.

(3) When leave to appeal is granted, the appellant shall file a notice of appeal in accordance with the provisions of these Rules.”

[p.666] of [1999-2000] 2 GLR 641

Rule 7(2) of CI 16 therefore made it clear that the Supreme Court’s power to grant special leave, as provided in article 105(2) of the Constitution, 1969, ought to be invoked within fourteen days from the date the court below refused an application for leave. As to whether regulation 7(2) of CI 16 really expressed the intent of article 105(2) of the Constitution, 1969 is now an academic matter.

As said earlier on, rule 7 of CI 16 which regulates appeals by leave and special leave has two provisions on special leave; that is, rules 7(2) and 7(4). Regulation 7(2) of CI 16 in plain language provides that an application for special leave under article 131(2) of the Constitution, 1992 should be filed within fourteen days from the date the court below refused to grant leave to appeal. Read alongside article 131(1)(b), of the Constitution, 1992, the provision that grants leave to appeal in cases where the suit began in court lower than the High Court, it shows that a person who has been refused leave to appeal in 131(1)(b) of the Constitution, 1992 may come to the Supreme Court only by asking for special leave under rule 7(2). And in such circumstances, the application for special leave must be filed within fourteen days from the date the Court of Appeal refused to grant leave to appeal.

But then rule 7(4) of CI 16 also provides that notwithstanding rule 7(1)(2) and (3), the Supreme Court may entertain an application for special leave under article 131(2) of the Constitution, 1992 on such terms as the court may consider fit. It is this rule 7(4) of CI 16 which obviously gives power to grant special leave if even the applicant has not complied with rule 7(1), (2) and (3) of CI 16. Rule 7(4) of CI 16 is really in line with section 4(5) of the Courts Act, 1993 (Act 459) which empowers the Supreme Court to entertain an application for special leave even if the applicant has not fulfilled all the conditions of appeal imposed on him. For section 4(2) of Act 459 reproduces article 131(2) of the Constitution, 1992 which confers the power to grant special leave. And to ensure that the Supreme Court’s exercise of this power is not circumscribed by any procedural requirement, section 4(5) of Act 459 provides:

“(5) Subject to subsection (2) of this section, the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Court.”

[p.667] of [1999-2000] 2 GLR 641

It is clear therefore that in the face of section 4(5) of Act 459, a subsidiary legislation like CI 16 cannot impose any limitations on the Supreme Court’s power to grant special leave under article 131(2) of the Constitution, 1992.

Applications for special leave may therefore be brought either under rule 7(2) or 7(4) of CI 16. An application for special leave under regulation 7(2) of CI 16 is meant for the situation where the suit originated from a court lower than the High Court, and the Court of Appeal has refused to grant leave to appeal to the Supreme Court. In such a situation, one has to initiate his application for special leave within fourteen days from the date the Court of Appeal refused to grant leave. If not, the applicant is out of court. Applicants for special leave under rule 7(4) of CI 16 are those brought in pursuance of article 131(2) of the Constitution, 1992. Such applications are not regulated by time nor affected by the applicant’s non-fulfillment of all the conditions of appeal.

This is a very potent power given to the highest court of the land to exercise it in the supreme interest of justice in a fit and proper situation. The power is not in any way meant to negate the time honoured principle that there should be an end to litigation. Accordingly, an applicant who applies to the Supreme Court for special leave under 131(2) of the Constitution, 1992 must in my view satisfy the Supreme Court: (i) Why he did not avail himself of the usual rights of appeal (ie, as of right and by leave) provided; and (ii) Why he should be granted such special indulgence. In this connection, the applicant must pass the tests set out in Dolphyne (No 2) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 373.

In the instant case, the applicant makes it clear that he is out of time and therefore seeks special leave under article 131(2) of the Constitution, 1992. From his affidavit in support of his application, it is clear that he has undoubtedly committed some procedural blunders. But he has not relaxed in his efforts to pursue his rights. Looking at the time the Court of Appeal delivered its judgment and the closeness of the time within which he had relentlessly being seeking to appeal against that judgment, it would be unfair to deny him this request. Accordingly, I would also grant him special leave.

Atuguba JSC. As the facts of this application have been fully stated in the opinions which have preceded mine, I am relieved from restating them save where necessary.

[p.668] of [1999-2000] 2 GLR 641

The application is for special leave to appeal to this court. The applicant did not previously apply to the Court of Appeal for leave to appeal to this court, without success, and therefore rule 7(2) of the Supreme Court Rules, 1996 (CI 16) does not apply. That rule provides:

“(2) An application for special leave to appeal under clause (2) of article 131 of the Constitution shall be by motion on notice in the Form 3 set out in Part I of the Schedule to these Rules, and shall be filed with the Registrar of the Court within fourteen days of the refusal of the court below to grant leave to appeal.”

(The emphasis is mine.) The applicable rule to this application therefore is rule 7(4) of CI 16 which provides:

“(4) Notwithstanding sub rules (1) to (3) of this rule an application for special leave to appeal under clause (2) article 131 shall be entertained by the Court and the Court may grant leave on such terms as the Court may consider fit having regard to the circumstances of the case.”

(The emphasis is mine.) The wording of this rule must be contrasted with that of article 131(2) of the Constitution, 1992 itself, which provides as follows:

“(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.”

(The emphasis is mine.) In view of the discretionary terms in which this court’s jurisdiction is expressed under article 131(2) of the Constitution, 1992, I would read the words “. . . shall be entertained by the court . . .” in rule 7(4) of CI 16 as if they were “shall be capable of being entertained.” since it could not have been the intention of the Rules of Court Committee to derogate from the provisions of article 131(2) of the Constitution, 1992. Rule 7(4) of CI 16 therefore is only enabling and discretionary. Rules 7(1) to (4) of CI 16 show that the rules committee intended to follow the constitutional pattern for special leave under article 131(2) of the Constitution, 1992. Rule 7(4) of CI 16 does not stipulate any time limit for bringing an application for special leave to appeal to this court. This is a casus omissus. But a casus

[p.669] of [1999-2000] 2 GLR 641 omissus in a statute may be intentional: see Azorblie v Ankrah IV [1984-86] GLR 561, CA; Nyarko v Lutterodt [1984-86] GLR 437, CA; and Nair v Teik [1967] 2 All ER 34, P C. Also, in Republic v High Court, Accra; Ex parte Darke XII [1992] 2 GLR 688, SC this court held that where the rules do not impose a time limit for the taking of a step, this court cannot fill the lacuna by resort to rule 5 of CI 16 which provides:

“5 Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the court the justice of the cause or matter may require.”

I notice however that in Dede II v Ansah [1980] GLR 746, Ampiah J (as he then was) held in respect of a conditional appearance under Order 12, r 24 of the High Court (Civil Procedure) Rules, 1954 (L N 140A) as follows:

“The effect of this rule is to require the defendant who has an objection to the issue or service of the writ to apply to the court to set aside the writ or the service on him… There is no time limit within which this application could be made, but by necessary implication of the English Court Rules, the application is made within fourteen days after the entering of conditional appearance or within such other time as may be limited by the court. Consequently, no time having been fixed by the court, the defendants were required to move the court to set aside the writ or the service on them within fourteen days.”

That course might be justified under Order 74 of LN 140A which required the High Court of Ghana under L N 140A to follow the practice and procedure of the High Court of England where no express provision was made by those Rules.

A comparison between rule 7(2) of the revoked Supreme Court Rules, 1970 (CI 13) and rules 7(1) to (4) of CI 16 shows that the omission of a time limit for applying for special leave is quite intentional. Under CI 13, I believe, and I so stated in Nsiah v Amankwaah [1996-97] SC GLR 453 at 465-466, that a time limit was provided under rule 7(2) for applying for special leave to appeal to this court in a manner that was out of joint with

[p.670] of [1999-2000] 2 GLR 641 article l31(2) of the Constitution, 1992. Rule 7(2) of CI 13 is re-enacted with minor differences in rule 7(2) of CI 16, but then it is quickly followed up with rule 7(4) which does not make a prior application to the Court of Appeal for leave to appeal to this court a sine qua non to an application for special leave to this court. Rule 7(4) of CI 16, be it noted, has no equivalent in CI 13, the revoked rules of this court. Its introduction into CI 16 without time limit was therefore intentional. This is confirmed by section 4 of the Courts Act, 1993 (Act 459), particularly subsections 2 and 5 thereof, to which my brother Adjabeng JSC kindly drew my attention. They are as follows:

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

(5) Subject to subsection (2) of this section, the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Court.”

These are provisions in pari materia with article 131 of the Constitution, 1992 and rules 7(1) to (4) of CI 16; and show that there are no conditions of appeal (including time limit) ex facie rule 7(4) of CI 16 to be complied with in applying for special leave to appeal to this court. It follows therefore that rule 7(4) of CI 16 confers a discretion simpliciter on this court with regard to an application for special leave to appeal to this court.

It is well established that a discretionary power ought not, unless statute provides otherwise, to be fettered by the introduction of fixed preconditions. As forcefully stated in the editorial note to Blunt v Blunt [1942] 2 All ER 613: “The exercise of a discretion cannot, from its very nature, be made subject to rules. Once a rule is formulated, the discretion is destroyed”. (The emphasis is mine.) And so it is trite law that in the field of judicial discretion, there are no precedents properly so called: see Hyman v Rose [1911-13] All ER 238, H L. But the discretion under rule 7(4) of CI 16 relating to applications for special leave must, like all other judicial discretions, be exercised judicially. Accordingly, that judicial discretion cannot be fettered but must be guided by

[p.671] of [1999-2000] 2 GLR 641 principles of justice and fairness. Some of the guidelines in considering an application for special leave are as follows:

(1) Although an application for normal leave must show some merits in of the intended appeal, an application for special leave must do more than that; it must also give good and convincing reasons why the application was special: see Khoury v Mitchual [1989-90] 2 GLR 25, SC Nsiah v Amankwaah; Nsiah v Mansah (Consolidated) [1998-99] SC GLR 132, Gatti v Shoosmith [1939] I Ch D 841, CA, followed in Dolphyne(No 2) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 373.

(2) The application must be brought timeously, having regard to the circumstances of the case; that is to say, within a reasonable time: see Republic v High Court, Accra: Ex parte Darke XII [1992] 2 GLR 688, SC and Khoury v Mitchual (supra).

(3) Though there is no specific time limit within which to apply for special leave, the overall maximum time limit for invoking the appellate process, revealed by a consideration of the time limits prescribed by CI 16, may afford a useful guideline in some cases as to whether an application for special leave is too tardy: see by analogy Nyarko v Lutterodt [1984-86] 1 GLR 437, CA (holding (2) of headnote).

(4) Where the respondent (or third parties for that matter) may be damnified irreparably, the inconvenience to the court, the conduct of the appellant in all the circumstances: see by analogy Nyarko v Lutterodt (supra) and Carson v Carson [1983] 1 All ER 478, CA.

(5) Even though failure to make a prior application for leave to appeal from the Court of Appeal under rule 7(2) or to make the application for special leave within fourteen days under rule 7(2) of CI 16 after a refusal of an application for leave by the Court of Appeal, is not a bar to an application to this court for special leave, it is still pars judicis to take those matters into consideration in determining an application for special leave to appeal to this court under rule 7(4) of CI 16: see

Khoury v Mitchual (supra) and Adabla v Gbevlo Agama [1939] 3 All ER 381, PC.

(6) Special leave to appeal may be granted:

[p.672] of [1999-2000] 2 GLR 641

(a) where a general principle of law has arisen for the first time,

(b) a decision by a court on the point sought to be appealed against will be advantageous to the public: see Dolphyne (No2) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 373; Nsiah v Amankwaah [1998-1999] 132.

(7) The overriding principle however is that “… the discretion is conferred on this court by the Constitution 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.” See Dolphyne (No 2) v Speedline Stevedoring Co Ltd (supra).

The role the special circumstances of a case can play in the exercise of a discretion is demonstrated by Adjeioda v CFAO [1971] 2 GLR 11 where Abban J (as he then was) granted the applicant leave to go into execution of a judgment obtained seventeen-and-a-half years earlier under Order 42, r 22 of LN 140A, which had no time limit for such applications provided six years had elapsed after the judgment, because of circumstances beyond the control of the applicant. Also in Easton v Brown [1981] 3 All ER 278, Goulding J granted extension of time to proceed on an order for specific performance after a lapse of eight years. On the facts of those cases, the result would have been the same even if the application had been for special leave to appeal. However, the courts must guard against the abuse of their process even though there be no time limit for a step to be taken. Inconceivable as it may sound, in Willis v Earl Beauchamp (1886) 11 PD 59 the plaintiff had the effrontery to bring an action to revoke a grant of letters of administration made 90 years earlier, on the grounds of nullity. At 518, Bowen L J said: “ I think his action ought to be stayed as being a vexatious action within the meaning attached to that word by the courts. Because it can really lead to no possible good.”

Applying the above principles to this case, I agree with my brother Adjabeng JSC that the facts of this case justify the grant of the application for special leave. The applicant acted timeously in instructing counsel, who did not diligently attend to the matter and

[p.673] of [1999-2000] 2 GLR 641 even then not for an inordinate period of time. It has been said often that the sins of counsel ought not to be visited on the client’s head. It is not however an absolute principle and the circumstances of the case will dictate its application: see Gatti v Shoosmith (supra) applied in Dolphyne (No 2) v Speedline Stevedoring Co Ltd (supra) at 380, and R v Secretary of State for the Home Department; Ex parte Al-Medahwi [1989] 1 All ER 777, CA. The applicant alleges that he paid ¢50,000 to the respondent for part of land to be sold to him by the respondent. Though the exact portion to be conveyed to him is unspecified, that portion, whatever it is, is part of a larger piece of land the identity of which is not in issue. Indeed the applicant says he has been in possession of the whole of it for many years. He contends that in these circumstances, applying the maxim id certum est quid certum reddi potest, it should be possible to give effect to their agreement.

In these circumstances, I am of the opinion that the application raises a legal issue of general public importance or alternatively a matter of public interest, whether on the application of that maxim, it is not possible to ascertain the value of the whole property whether at present or at the time of the undeniable payment of the ¢50,000 and convey so much of the land as represents that payment to the applicant. After all, in other contexts, the courts have given relief on the basis of quantum meruit or quantum valeat and I thought similar considerations could afford the applicant a remedy in this case. I am far from saying that if granted special leave to appeal the applicant will inevitably succeed; he may not, but it is not clear that he will certainly not succeed. In Ahuma v Akorli (No 2) [1975] 1 GLR 473 the court was able to overcome a not too dissimilar problem of land sold but not exactly ascertained.

In reaching this result, I have all along borne in mind that this application is for special leave to appeal as opposed to other forms of leave and that some of the guidelines I have relied upon are applicable to an application to the Court of Appeal for leave to appeal under Article 131(1)(b) of the Constitution, but as noted by this court in Dolphyne (No 2) v Speedline Stevedoring Co Ltd, (supra) and by me in Nsiah v Amankwaah (supra), this is unobjectionable coincidence.

I would therefore also grant this application.

Application granted.

SA