JUDGMENT OF AZU CRABBE J.S.C.
The present application raises points of great importance. The history of this matter may be shortly stated. The applicants brought an action in the High Court, Kumasi, against one S. Zacca, claiming payment of sums of money due and payable under a hire-purchase agreement between the applicants and Zacca for the purchase of a tractor. The applicants had, in the meantime, seized the tractor for default in the payment of the instalments under the hire-purchase agreement. Zacca disputed liability on the ground that to the knowledge of the applicants he was only a nominal party to the hire-purchase agreement, and that the real party was one B. M. Zacca, the respondent herein, who joined the suit as a third Party. B. M. Zacca did not dispute liability under the hire purchase agreement, but he counterclaimed for damages for unlawful seizure of the tractor by the applicants. The leaned trial judge dismissed the applicants' claim but awarded B. M. Zacca damages.
The applicants appealed to the former Court of Appeal against the decision concerning (i) the existence and breach of an agreement varying the original one and (ii) the damages, as being excessive and wrong in law. The respondent also appealed (i) against a finding by the learned trial judge that he was under a duty to mitigate his damage and (ii) that the damages awarded were inadequate. On 15 August 1969 the Court of Appeal dismissed the applicants’ appeal, but allowed the respondent’s appeal on the issue of damages. The damages awarded were varied to read N¢49,600 instead of N¢24,000 (£12,000). On 22 August 1969, that is to say exactly one week after the dismissal of the applicants’ appeal, a new Court of Appeal came into being by virtue of article 102 (4) of the Constitution of the Republic of Ghana, 1969. Subsequently, the applicants paid to the respondent the sum of N¢30.000.00 in partial satisfaction of the damages awarded in the appeal. The applicants then applied to this new court, under rule 33 of the Supreme Court Rules, 1962 (L.I. 218.), for a review of the judgment delivered on 15 August 1969. Rule 33 provides that, "The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review." This application was on 20 June 1970 refused with costs, and the applicants, having failed to prevent the respondent from levying execution
