YANNEY v. AFRICAN VENEER MAHOGANY EXPORTERS LTD.
1960
COURT OF APPEAL
CORAM
- KORSAH C.J.
- VAN LARE J.A.
- GRANVILLE SHARP J.A
Areas of Law
- Judicial Review
- Appellate Procedure
- Civil Procedure
1960
COURT OF APPEAL
CORAM
AI Generated Summary
The appeal was allowed as the learned judge erred in reviewing his own judgment without proper authority and procedure, specifically lacking a rehearing when required.
JUDGMENT OF VAN LARE J.A.
Van Lare, J.A. delivered the judgment of the court. (After referring to the facts, his Lordship continued). We are of opinion that the learned judge opens himself to attack from many points. It is unnecessary to go into details of the reasons, which are vulnerable, given by him for reviewing the judgment he had previously delivered. It is sufficient to say that
(i) the learned judge had no power to review any judgment from which an appeal had been preferred. He erred in law when he said that the mere filing of notice of appeal did not render the court below functus officio until an appeal was actually pending before the Court of Appeal. By so holding, the learned judge omitted to consider the effect of Rule 11 (3) of the Supreme Court (Court of Appeal) Rules, 1957, as follows:—
"An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below";
(ii) even if no appeal had been preferred, all that was sought from the learned judge upon the motion (brought under Order 39, r. 8 (3)) was an order for special leave to apply for a review. There was at that stage no application before him for the review itself, and he was therefore palpably wrong in setting aside the judgment previously delivered by him in the case;
(iii) even if an application for review had been properly granted, the procedure laid down is that there should be a rehearing. The relevant provision is Order 39, rule 6, which reads as follows:—
“When an application for review is granted, a note thereof shall be made in the register and the Court or Judge may at once rehear the case or make such order in regard to the rehearing as it thinks fit, and upon such rehearing the Court or Judge may reduce, vary, or confirm its previous judgment or order."
There has been no rehearing. The learned judge neither reduced, varied nor confirmed his previous judgment, but purported to reverse his previous judgment by an order setting it aside, delivering another judgment in favour of the defendants. In this he again erred.
We are of opinion that a rehearing is important because, as indicated in rule 1 (1), Order 39, a review is possible only if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge, or could not be produced by him, at the time when judgment was given or the order sought to be reviewed was made, or on account of some m