AGYEKUM v. ASAKUM ENGINEERING AND CONSTRUCTION LTD.

JUDGMENT OF ADADE AG. C.J.

On 17 July 1990 this court gave judgment in the above appeal. The defendant who lost on a majority of 3-2, has now applied to the court asking that the decision (obviously that of the majority) be reviewed in his favour. The application is opposed by the plaintiff company.

Apart from the material which was before the court, and on the basis of which the appeal was determined, the parties have filed a large number of other documents and deposed to other facts in affidavits in support of their several positions. The parties adopted the same strategy when the case was before the Court of Appeal where a quantity of fresh evidence was introduced by way of additional documents and allegations in affidavits from the two sides. This state of affairs has not helped in a proper determination of the appeal, and constitutes a serious indictment on the procedure by which a final judgment was obtained in the court of first instance. Judgment was given on the pleadings, instead of after a full-dress hearing. It would seem that except in the clearest of cases, courts should desist from giving final judgments by the short route, if they are not to deny themselves the opportunity of basing their judgments on "all the evidence."

Since Pomaa v. Fosuhene [1987-88] 1 G.L.R. 244, S.C, when this court decided to restate and preserve its inherent powers to review its own decisions in appropriate cases, we have not found it necessary to overturn any decision given by us. We have, time and again, indicated that we have not preserved that power merely to create opportunities for parties to invite a second judgment in every appeal. The cases we have dealt with so far have been principally, cases where the judgments appealed from were the result of pleadings, a full hearing, addresses by counsel, etc. The Fosuhene case (supra) and a few others were original applications before this court, and do not compare with substantive appeals from courts below. In those original applications, the initial decisions were made by us, and were based on facts in affidavits put before us by the parties. There had been no question of any of the parties being denied a proper opportunity to make his case. The same applies to substantive appeals coming to us from below. In this case, however, judging from the spate of documents and new evidence being thrown in [p.640] at every stage, it is clear to all that we are handling a peculiar and exceptional situation.

For example