2018
SUPREME COURT
CORAM
AI Generated Summary
In this Ghana Supreme Court review ruling authored by Dotse, JSC, the Applicants sought to overturn a unanimous ordinary bench judgment of 21 June 2017 that had allowed the Respondent Bank’s appeal. The Applicants argued three grounds: that the prior decision was per incuriam of relevant case law and statutes; that the ordinary bench misapplied Naos Holdings v Ghana Commercial Bank and wrongly refused amendment under Order 81; and that a review was necessary to avert irremediable harm, given the magnitude of their claims arising from promissory notes linked to Sphynx Capital Market PCC, Tricon Trade Management Limited, and Eland International Ghana Limited. Applying the review “road map” from Arthur (No.2), the Court held that no exceptional circumstances or fundamental error were shown. Reaffirming NAOS, the Court concluded failure to comply with Order 2 r.4(2) renders a writ void, not curable by amendment, and that Order 4 r.13 does not displace Order 2 r.4(2). The application was dismissed. Atuguba, JSC issued a separate concurrence, criticizing the voidness approach and emphasizing Order 81’s curative policy, but reluctantly agreed that review is not a further appeal.
DOTSE, JSC:-
This is a Ruling premised upon an application at the instance of the Plaintiffs/Respondents/Respondents/Applicants, hereafter referred to as the Applicants praying for a review of the unanimous judgment of the ordinary bench of this Court delivered on the 21st day of June, 2017 which allowed an appeal filed by the 1st Defendants/Appellants/Appellants/Respondents hereafter referred to as the Respondents.
The application for review was supported by a 52 paragraphed affidavit, sworn to by Mr. Kwame Pianim, who described himself as the legal representative of the Applicants herein.
The Respondents herein vehemently opposed this application for review and in this respect a forty paragraphed affidavit in opposition was sworn to by Robertson Kpatsa Esq., who described himself as Head of Legal Department of the Respondent Bank.
GROUNDS OF THE REVIEW APPLICATION
This application for review has been brought on the following grounds:
i. The Judgment of the ordinary bench of the Supreme Court delivered on 21st June, 2017 was given per incuriam relevant case law and statute law.
ii. The ordinary bench of the Supreme Court misapplied the facts and the ratio decidendi in the case of Naos Holdings v Ghana Commercial Bank [2005-2006] SCGLR 407 and wrongfully declined to exercise their power to amend the Applicant’s writ, thereby occasioning a gross miscarriage of justice; and
iii. The demands of justice make the exercise of the court’s review jurisdiction extremely necessary to avoid irremediable harm to the Applicant.
ARGUMENTS OF COUNSEL
Even though learned counsel for the parties have all relied on their affidavits and statements of case filed, they were all given some time to expatiate on these processes and grounds by oral submissions in court as follows:-
BY COUNSEL FOR APPLICANTS
Learned counsel for the Applicants, Nene Amegatcher in his submission argued as follows:-
1. That, the ordinary bench of this Court in it’s judgment held that the Applicant, having failed to name the foreign beneficiaries and their resident addresses on behalf of whom the action had been mounted were in breach of Order 2, r. 4 (2) of the High Court, (Civil Procedure) Rules, 2004 (C.I. 47) and therefore lacked capacity to even commence the action.
Learned counsel however argued that, under Order 4 r 13 of C. I. 47 (already referred to supra), the Applicants were entitled to sue as “a trustee” without the need to join the beneficiaries of the trust or estate and