DOLPHYNE v. SPEEDLINE STEVEDORING CO LTD AND ANOTHER
July 9, 1996
SUPREME COURT
CORAM
- ABBAN CJ
- CHARLES HAYFRON-BENJAMIN
- AMUAH
- ACQUAH
- AKUFFO JJSC
Areas of Law
- Constitutional Law
- Civil Procedure
July 9, 1996
SUPREME COURT
CORAM
AI Generated Summary
Justice Charles Hayfron-Benjamin JSC delivered the ruling of the Supreme Court of Ghana overruling a preliminary objection to an application for special leave to appeal under article 131(2). The applicant had obtained judgment in the Western Region Circuit Court, but the Court of Appeal reversed by a 2–1 majority. A subsequent appeal to the Supreme Court was dismissed for non-compliance with article 131(1)(b), with ¢300,000 costs awarded. On the fresh application for special leave, counsel E. D. Kom for the respondents argued this was a prohibited “second bite at the cherry” and warned of “floodgates.” The Court rejected that position, holding that article 131(2) confers unfettered discretion to entertain special leave notwithstanding clause (1), adopted the Nyimoh v Dadzie criteria for special leave, found that the applicant’s affidavit raised the fraud issue and public interest, and dismissed the preliminary objection. The panel included the Chief Justice Abban and Justices Akuffo, Acquah, and Amuah.
JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC
Delivered the ruling of the court. The respondents herein have raised a preliminary objection to the present application and submit that "the application for leave is misconceived and must be dismissed in limine." For the sake of clarity, the grounds of the objection are set out in extenso as follows:
"(i) The plaintiff appealed from the judgment of the Court of Appeal and the same was dismissed by the Supreme Court on 16 April with ¢300,000 costs.
(ii) The plaintiff having exhausted his right of appeal, so to speak, cannot invoke article 131(2) of the Constitution, 1992 and section 4(2) of the Courts Act, 1993 (Act 459). The plaintiff cannot have a second bite at the cherry: see Khoury v Mitchual [1989-90] 2 GLR 105, SC.
(iii) There must be an end to litigation. Litigation cannot continue as long as litigants can change counsel.
(iv) The plaintiff-applicant failed woefully to depose in his supporting affidavit the substantial question of law involved in this case and the public interest to be served.
(v) The costs of ¢300,000 on the appeal being dismissed have not been paid.
(vi) The word 'notwithstanding' does not open the flood gates for incompetent appeals to be resurrected."
The plaintiff in his application for special leave to appeal to this court prayed for an order that:
"Notwithstanding clause (1) of article 131 of the Constitution, 1992 the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in this case, and [p.535] may grant leave accordingly upon the grounds set out in the accompanying affidavit and for such further or others . . ."
By his affidavit in support of his above-stated motion, the applicant averred that having commenced his action against the defendant in the circuit court in the Western Region on or about 28 June 1990, judgment was given in his favour by that court against the second defendant-respondent. However, on appeal from that decision to the Court of Appeal, their lordships by a two to one majority reversed the decision of the circuit court; whereupon the applicant lodged an appeal to this court. Upon the appeal coming before their lordships of this court, the respondent by his counsel, Mr E D Kom filed "Notice that he would raise a preliminary objection." As it turned out, the objection was in respect of the non-compliance by the appellant of the provisions of article 131(1)(b) of the Constitution, 1992. Their lordships of this c