AMMA DAPAAH & ANOTHER v. KWAKU SARFO
February 27, 2019
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU J.A. (PRESIDING)
- DZAMEFE, J. A.
- WELBOURNE (MRS), J. A
Areas of Law
- Civil Procedure
- Evidence Law
February 27, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, constituted by Welbourne JA (authoring), with Mariama Owusu JA and Senyo Dzamefe JA concurring, addressed an interlocutory appeal from the High Court, Kumasi. The suit was originally brought by Amma Dapaah against Kwaku Sarfo and Amas, struck out for want of prosecution, and after Dapaahs death her donee and daughter, Adwoa Pinamang, sought to relist claiming appointment as customary successor. Her relist application was refused for lack of capacity and failure to prove death, but the trial judge later granted review and ordered the suit relisted. On appeal, the Court of Appeal reaffirmed that review jurisdiction under Order 42 of C.I. 47 is exceptional and requires discovery of new and important matter, error apparent, or other sufficient reasons tied to miscarriage of justice. The Court found the trial judge misdirected himself by relying on discretion under rule 3(2) despite acknowledging that Order 42 rule 1(a)-(b) was not met. It concluded that the proper step was substitution of the customary successor and set aside the High Courts ruling, allowing the appeal.
JUDGMENT
WELBOURNE, JA
BRIEF FACTS:
This is an interlocutory appeal challenging the review jurisdiction of the trial High Court, Kumasi to review its previous ruling or decision to relist the substantive case to the cause list when the Applicant failed to meet the thresh hold of the review jurisdiction of the High Court.
The facts are that AmmaDapaah issued a writ against the Defendants, KwakuSarfo and Amas. In the course of the case, she fell ill and issued a Power of Attorney to the applicant to pray the court to review its decision or ruling delivered on the 13th of February, 2017. The Plaintiff’s Attorney kept on absenting herself and as a result the writ was struck out by the court for want of prosecution on 26th February 2016. On the 3rd of June 2016, the Plaintiff AmmaDapaah died. Consequently the Power of Attorney that she gave to the donee became extinct with her death. Her donee, AdwoaPinanmang filed an application on 5th of December, 2016 to relist the suit unto the cause list. Her reason was that upon the death of AmmaDapaah, she being the daughter of the deceased plaintiff, was appointed as the customary successor of the plaintiff and was in court to apply for the case to be relisted. Her application was dismissed by the court for the main reason that she did not have the capacity and did not prove the death of the Plaintiff.
Dissatisfied with the ruling, the Applicant applied for a review of the court’s ruling, per her application filed on the 17th of February 2017. Her application was opposed to by the Defendants on the basis that the application did not merit the stated grounds to qualify for a review under 42 of the C.I. 47 of 2004. He therefore prayed that same be dismissed.
Order 42 of C.I. 47 of 2004 provides for the review jurisdiction of the High Court, (see Order 42 (1) (a) and (b)). At the end of the submissions made by both Counsel for the Applicant and the Respondent, the learned judge granted the review application for the Applicant on the basis of the decision made earlier on in 1976 in which the High Court had held in the case of Holland West Africa & Another v. Pan African Trading Co & Another [1976]2GLR179-184 that:
“An application for a review could not be made solely on the ground of error of law. The fact that a judge made an error of law was not sufficient reason within LN 140A, Order 39 for applying for a review”.
According to the High Court Judge in the instant case; “what the Applicant is trying to do is to c