ODEHE VRS MENSAH & 2 ORS (J8/81/2024) [2024] GHASC 55 (13 November 2024)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024

Coram

PWAMANG JSC (PRESIDING) KULENDI JSC GAEWU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC

Civil Motion

NO. J8/81/2024 13TH NOVEMBER, 2024

MONICA ODEHE ………… PLAINTIFF/RESPONDENT/APPLICANT VRS

1. BENJAMIN MENSAH

2. NII SHPPI KUTOR III DEFENDANTS/APPELLANTS/RESPONDENTS

3. EVANS TETTEY GIDIGAN

Majority Opinion

ADJEI-FRIMPONG JSC:

This application invokes this Court’s jurisdiction to grant special leave to bring an appeal before it under Article 131(2) of the Constitution. The application has a brief antecedent. Page 2 of 41

On the 30th of March 2023 the Court of Appeal gave judgment against the Applicant (as Plaintiff/Respondent) in favour of the Respondent (a s Defendant/Appellant). The judgment of the Court of Appeal is before us as Exhibit A. Significantly, the suit commenced at the Circuit Court from where the appeal lay to the Court of Appeal.

The Applicant initiated an appeal against the said judgment by filing a Notice of Appeal directly in this Court (Exhibit B). Apparently, that was a foul step. Being a judgment in a matter that had commenced in the Circuit Court, the Applicant could have appealed to this Court by leave of the Court of Appeal pursuant to Article 131(1)(b) of the Constitution. She had no right to appeal as of right. Conceding however, she attributes the error to what is described as “acting out of extreme urgency”.

She subsequently filed an application for special leave to appeal before this Court. The said application was however withdrawn on the 29th November 2023 for the reason that, the defective Exhibit B (the original Notice of Appeal) was still subsisting at the filing of that application.

She then proceeded to file a Notice of Withdrawal seeking to withdraw Exhibit B. The Notice of Withdrawal is Exhibit C before us. And now, thinking that she has a clean slate, she files the instant application for Special Leave in this Court.

The application has been strenuously opposed by the Respondents. Two paragraphs in the affidavit in opposition present the main grounds for resisting the application. They are:

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“5. That I am advised and verily believe same to be true that paragraphs 10 and 11 of the affidavit in support of the Applicant’s motion are of no effect in as far as Applicant has failed or neglected to comply with the provisions of the Supreme Court rules (C.I 16) and Article 131(1) of the 1992 Constitution of Ghana which enjoin the Plaintiff/Respondent/Applicant to apply for leave at the Court of Appeal before she could file a notice of Appeal to the Supreme Court. This could be done within 14 days after the delivery of the judgment he/she intended to appeal against since the judgment emanated from the Circuit Court.”

8. That I deny paragraph 14 of the affidavit in support of Plaintiff/Respondent/Applicant’s motion and oppose same by saying that what end of justice will it serve if Applicant has failed to comply with statutory and constitutional provision to seek leave within 14 days of delivery of judgment to appeal to the Supreme Court and she is now applying for special leave to appeal to the Supreme Court one year after the court had delivered the judgment on 30th of September 2023. Granting this will rather be a travesty of justice, I am advised.”

We understand the Respondents, by the above depositions to be saying that once the Applicant failed to seek leave within 14 days of the delivery of the judgment pursuant to article 131(1)(b), she could not properly invoke the provision in article 131(2) and in any event bringing the application one year after the judgment will not meet the justice of the case.

We think the position taken by the Respondents is an invitation to us to examine the scope of our jurisdiction under article 131(2). Carefully analyzed, the Respondents’ position appears to seek a narrower scope of the provision in article 131(2). They think, not exploring article 131(1)(b) disables one from invoking article 131(2) and also that delay is necessarily a disabling factor. Page 4 of 41

Whilst from the jurisprudence of this Court, the nature and scope of our jurisdiction under Article 131(2) appears largely settled, the Respondents’ position in so far as it seeks a narrower scope, warrants a revisit of the subject. For this, we shall indulge ourselves a brief retrospect of some of the decisions this Court has reached on the subject as this will light our path as we proceed to examine the supplication made before us. In effect, beyond merely determining whether the application merits a favourable exercise of our jurisdiction under article 131(2), it also falls for us to decide whether the prevailing nature and scope of the jurisdiction should be kept open.

The appellate jurisdiction of the Supreme Court by Article 131 is created as follows:

“(1) An appeal shall lie 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 Regional Tribunal in the exercise of its original jurisdiction. (b) With the 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 Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or 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.”

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The provisions are re-enacted by Section 4 of the Courts Act, 1993 (Act 459) as amended. The Supreme Court Rules, 1996 (C.I 16) (as amended) also makes the following provisions under Rule 7:

“7(1) An application for leave to appeal under paragraph (b) of clause (1) of article 131 of the Constitution shall be by motion on notice in the Form 2 set out in Part I 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.

(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.

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

(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 DOLPHYNE (NO.2) VRS SPEEDLINE STEVEDORING CO.LTD (1996-97) SCGLR 373, the Plaintiff had obtained judgment in the Circuit Court against the Defendants on 28th June 1990 in an action for inter alia, damages for fraud. That judgment was, on appeal by the Defendants, set aside by the Court of Appeal in its judgment delivered on 14th January 1993. On 28th January, the Plaintiff filed notice of appeal in the Supreme Court against the judgment of the Court of Appeal. The appeal was, however struck out as incompetent by the Supreme Court for non-compliance with article 131(1)(b) of the 1992 Constitution. Page 6 of 41

The Plaintiff applied under article 131(2) for a special leave by the Supreme Court to appeal against the judgment of the Court of Appeal. The Defendants raised a preliminary objection against the application on the grounds inter alia, that having exhausted his right of appeal under article 131(1), the Plaintiff could not invoke article 131(2). They also contended that the word “Notwithstanding” in article 131(2) “did not open floodgates for incompetent appeals to be resurrected”.

By a unanimous decision, this Court held that the provision in article 131(2) of the 1992 Constitution must govern the provisions of article 131(1)(a) and (b). It was observed that the word “Notwithstanding” in article 131(2) meant that without being affected by the provisions under 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 in article 131(1) and grant special leave bearing in mind the facts of each case and the need to prevent failure of justice. To so hold according to the Court, was not to open the floodgates to incompetent appeals as contended.

In KOTEY V KOLETEY [2000] SCGLR 417, the case originated from the Circuit Court and the judgment of the Court of Appeal against which appeal was sought was given on 23rd December 1999. The applicant had fourteen days under Rule 7(1) of the Supreme Court Rules to apply for leave to appeal to the Supreme Court. The Applicant had failed to apply to the Court of Appeal for leave and the reason he gave was that he had to look for a lawyer and then his lawyer had to apply for stay of execution at the Court of Appeal which was dismissed. It was after this that the lawyer realized he was to apply within fourteen days for leave to appeal to the Supreme Court. Since the taking of a false a step did not stop time from running, he had no other alternative than to avail himself of the provision for special leave under Rule 7(4). The other side had argued that the time limit Page 7 of 41

of fourteen days under Rule 7(1) and (2) ought to apply to Rule 7(4) even though no time limit had been provided for under the latter. Not doing so, it was argued, would prevent the victorious party from celebrating his victory.

The Court granted the application for special leave. As was observed by BAMFORD ADDO JSC at page 422-423 of the report:

“The special leave referred to by article 131(2) and rule 7(4) of C.I 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(4) of the Courts Act, 1993 (Act 459), not subject to any condition of appeal under the Rules of Court, i.e., CI

16. It is a special favour which is given to litigants who have good and valid appeals to enable them appeal even though they are under the Rules of Court out of time within which to appeal so as to prevent failure of justice.” The Court then proceeded to set out the guiding principles to assist in determining whether to grant special leave or not. Those were:

“(a) where there was prima facie error on the face of the record; (b) A general principle of law had arisen for the first time (c) A decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public.”

In GYIMA V ABROKWA [2011]1 SCGLR 406, the Court declined the applicant’s application for special leave and the reasons were that he had deposed to falsehoods in his affidavit and the Court was also not satisfied that the errors complained of to ground the grant of the application were apparent on the face of the record. Page 8 of 41

That was a case where the Court of Appeal had reversed the judgment the applicant had obtained at the trial Circuit Court. Having failed to apply within fourteen days for leave to appeal to the Supreme Court under article 131(1)(b), the Applicant applied for special leave under article 131(2) to appeal to the Supreme Court. R.C. Owusu JSC delivering the ruling of Court emphasized the wide discretionary power of the Supreme Court under article 131(2) citing ALLEN VRS SIR ALFRED MACALPHINE & SONS LTD [1968] ALL ER 547 and DOLPHYNE (No.2) VRS SPEEDLINE (supra). In her words:

“The court being the highest court is given this wide discretionary power to do justice in appropriate cases. Indeed, in holding (2) of the headnote to the DOLPHYNE (No.2) case, the Supreme Court held that in the exercise of this unfettered discretion, the court is not bound by any rules of practice or procedure or any legislation. The principles to be applied as guides on which the Supreme Court might determine whether or not to grant special leave to appeal had been set down in the DOLPHYNE (No.2) case by the court (as stated in holding (3) of the headnote to the case) as follows: “(a) where there was 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.”

In OSEI & ORS VRS ANOKYE (substituted by) AMOO-GOTFREID [2007-2008] SCGLR 463, this Court again declined an application for special leave to appeal in a matter that had started from the district court. Doing so, the Court examined the entire circumstances of the case and weighed them against the guiding principles to grant or re fuse such applications. WOOD CJ observed at page 466—467 of the report:

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“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. We understand this last principle under (c) to be referable to, not just any legal question but those novel point of law that raise substantial issues of some public importance. The Supreme Court in its decision in Kotey v Koletey [2000] SCGLR 417 and Ansah v Atsem [2001-2002] SCGLR 906 has expanded the law further and observed that in such exercises, other factors such as public policy, the need for litigation to come to an end, the need to avoid inordinate disrespect for the rules of court and the need to avoid prejudice or hardship or inconvenience to the party in whose favour the judgment which is to be appealed against was rendered must be given due consideration. In applying these principles to the peculiar facts of the case, we find ourselves unable to exercise our discretion in the applicant’s favour. This is a simple landlord and tenant case, which from the onset was, in any event, completely devoid of any novel, let alone substantial question of some public importance, has been pending in the courts for some thirteen years. Again there is no evidence to suggest that in the course of the appellate hearing, a substantial legal issue of serious public interest arose for determination by the appellate courts, ie the High Court or the Court of Appeal or this court…No reference or disclosure is made in the proposed grounds of appeal of any error of law apparent on the face of the record; neither is there any serious legal issue being raised for our consideration.”

In SOSU VRS GENERAL LEGAL COUNCIL (CONSOLIDATED) [2017-2018]2 SCGLR 611, APPAU JSC siting as a single judge of this Court referred to a number of the previous decisions of this Court and found the application meritorious of the exercise of the discretion. He said:

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“Clearly, the applicant is not deprived by the law from bringing the instant application before the court. “Special leave” applications provided for under article 131(2) of the 1992 Constitution are, by their nature and description, special. They are neither fettered by rules of practice nor even legislation. This Court in the case of D OLPHYNE (No.2) V SPEEDLINE STEVEDORING CO LTD [1996-97] SCGLR 373 at 384 made that point clear. The Court held; in exercising its unfettered discretion under article 131(2) of the Constitution, the Supreme Court is not bound by any rules of practice or procedure or any legislation. This Court therefore has the power in appropriate cases, to ignore the provisions of article 131(1) and grant special leave to appeal in respect of appeals from any judgment or decision of the Court of Appeal. The Court, however, does not exercise this power without any limitation. The Court is guided by laid down principles which govern its decision-making on whether to grant or to refuse such an application. These have been catalogued in the DOLPHYNE case (supra) and subsequently applied by this Court in several cases including Kotey v Koletey [2000] SCGLR 417; Ansah v Atsem [2001-2002] SCGLR 906 and Osei v Anokye [2007-2008]1 SCGLR 463…”

Continuing, the learned judge referred to his previous opinion in another case thus:

“I wish to recall a statement I made in my ruling concerning special leave applications in the case of Mining and Building Contractors Ltd v Anglogold Ashanti Ltd [201-2020]2 SCGLR 590 at page 602 ante of the Report: “The authorities have made it clear that the discretion of the court in entertaining such applications under article 131(2) of the Constitution, 1992 and rule 7(4) of the Supreme Court Rules, 1996 (CI 16) is a perfectly free one, unlimited by any rules of procedure. The only question that confronts the court for an answer when considering such applications is; whether upon the facts of the Page 11 of 41