GH - PENKRO AND OTHERS v. KUMNIPAH II

This is an application from the co defendant, Nana Kwakye Penkro, requesting this court to set aside its judgment dated 22 June 1987 (see Kumnipah II v. Ayirebi [1987-88] 1 G.L.R. 265, S.C. ante). The pertinent grounds for the prayer were:

“17 That the ruling refusing 'the application to review a review judgment' was delivered on 30 March 1983 by the, Court of Appeal.

18 That notice of appeal to the Supreme Court was filed on 14 April 1983 and I attach herewith a photocopy of the said notice marked exhibit A.

19 That I am further reliably informed by our counsel and verily believe same to be true that in the case of Darke IV v. Darke IX [1984-86] 1 G.L.R. 481, S.C. the Supreme Court (coram Sowah, Adade, Taylor JJ.S.C., Edusei and Abban JJ.A.) struck out the appeal of the plaintiff-appellant because it was filed out of time: judgment had been delivered on 30 July 1979 and the application for leave to review by the full bench of the Court of Appeal was filed on 15 August 1979.

20 That the appeal to the Supreme Court by the respondents is an interlocutory one as the application in Darke IV v. Darke IX (supra) and should have been made within fourteen days certain.

21 That I am sure that if the issue of the appeal being out of time had been raised this honourable court would have done what it did in Darke IV v. Darke IX (supra).

22 That I am, however, reliably informed by our counsel and verily believe same to be true that the issue of lack of jurisdiction and nullity can be raised at any time.

23 That I am further informed that this honourable court has power, suo motu or on application, to vacate its own judgment or order which is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure."

[p.561]

In my view this application though clothed in a different robe is nothing short of asking this court to look at its judgment again, in other words, to review its judgment. When the appeal was heard, the applicant had ample opportunity to raise, if necessary, in limine, the issue presently being canvassed as to whether the decision of the appeal court was interlocutory or final or that the appellant should have filed his appeal within fourteen days or three months.

If I may repeat the words of the Earl of Solborne in Boswell v. Coaks (No. 2) (1894) 86 L.T. 365: "Courts should not be ready to permit unsuccessful parties to attempt to overturn judgments by raising new consideration.” For

“17 That the ruling refusing 'the application to review a review judgment' was delivered on 30 March 1983 by the, Court of Appeal.

18 That notice of appeal to the Supreme Court was filed on 14 April 1983 and I attach herewith a photocopy of the said notice marked exhibit A.

20 That the appeal to the Supreme Court by the respondents is an interlocutory one as the application in Darke IV v. Darke IX (supra) and should have been made within fourteen days certain.

21 That I am sure that if the issue of the appeal being out of time had been raised this honourable court would have done what it did in Darke IV v. Darke IX (supra).

22 That I am, however, reliably informed by our counsel and verily believe same to be true that the issue of lack of jurisdiction and nullity can be raised at any time.

[p.561]

PENKRO AND OTHERS v. KUMNIPAH II

Areas of Law

JUDGMENT