Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 AMPOFO BROS. v. BRONG-AHAFO CORPORATION LTD., AND ANOTHER | GhanaLegal - Resources for the legal brains

AMPOFO BROS. v. BRONG-AHAFO CORPORATION LTD., AND ANOTHER


  • 1961-01-16
  • HIGH COURT
  • 1 GLR 62-63
  • Print

CRABBE, J.


Summary

Practice?-Review?-Whether a misapprehension of the law is a ground for a review?-Whether a point of law is a "new and important matter or evidence"?-Supreme Court (Civil Procedure) Rules, 1954, Order. 39, r. 1

Headnotes

.

Judgement

APPLICATION for review under Order 39, rule 1, Supreme Court (Civil Procedure) Rules, 1954. The facts are set out in the ruling of Crabbe J.

This application is for an order to review the order of this court made on the 14th November, 1960 under Order 57, rule 10, of the Supreme Court (Civil Procedure) Rules, 1954, and for an order for pleadings under Order 57, rule 7. The order under Order 57, rule 7 can in these circumstances only be made after a review of the order dated the 14th November, 1960.

The facts relied upon in this present application are stated in extenso in the affidavit deposed to by Mr. D. E. G. Brookman. On the 14th November, 1960, when the judgment-creditors' application under Order 57, rule 10, came before the court, Mr. D. E. G. Brookman who did not appear to have had any or sufficient instructions announced himself as appearing for the claimants. He stated: "I am opposing the application on the ground that we are owners of the subject-matter in dispute."

This statement by counsel for the claimants was beside the point because the application which was considered on the 14th November, 1960, was in respect of the failure of the claimants to appear or their neglect or refusal to obey the summons of the deputy sheriff which was served on them on the 27th October, 1960.

The application by the judgment-creditors under Order 57, rule 10, proceeded on the assumption that the claimants had at some date prior to the 14th November, 1960, failed to appear and state the nature and particulars of their claim to the goods and articles seized by the deputy sheriff. That application was on notice and the claimants were served with the notice of the hearing as far back as the 27th October, 1960; so that at the hearing on the 14th November, 1960, the claimants knew of the deputy sheriff's summons and yet they did not call attention to it; [p.63] neither did they oppose the judgment-creditors application on the ground that it was premature.

The main ground for this present application appears to be that stated in paragraph 10 of the affidavit in support of the motion. Paragraph 10 reads as follows:?-

"That there existing no default or culpable delay on the part of the Claimants, the Order of this Honourable Court allowing the Execution-Creditors' application was in the premises wrong in Law and ought to be reviewed and I therefore make this affidavit in support of the Motion filed herein for review thereof in accordance with the provisions of Order 39 Rule 1 of the Supreme Court (Civil Procedure) Rules 1954."

"In effect an order for review is sought by the claimants because the order of this court on the 14th November, 1960, "was in the premises wrong in law and ought to be reviewed." The grounds on which a judge can review his judgment are contained in Order 39, rule 1, and the question here for determination is whether an erroneous view of the law can be a sufficient reason for the review of an order made hereby.

What the claimants-applicants are asking me to do is to reconsider the legal position as it existed on the 14th November, 1960, and then to review the order I made on that day. I am afraid that I am unable to do this, as I am of the opinion that a misapprehension of the law is no ground for review under Order 39, rule 1. In the case of Yanney v. African Veneer Mahogany Exporters, Ltd1. a trial judge reviewed his previous judgment after reconsidering a point of law brought to his notice. In delivering the judgment of the Ghana Court of Appeal, van Lare, J.A. said:

"In the instant case we are unable to say that there was a discovery of a new and important matter. The learned judge must be taken to have considered that a reconsideration by him of a point of law brought to his notice during the trial and before judgment (viz., the effect of sections 2, 7, 8 and 10 of the Concessions Ordinance in connection with Concession Enquiry No. 2243 (Sekondi)), was a sufficient reason for his purported review. The learned judge said as follows:

'Since the delivery of the judgment I have had the opportunity to peruse a certified true copy of the judgment in Civil Appeal No. 41/1950 (Concession Enquiry No. 2243 (Sekondi)), which was heard and determined by the West African Court of Appeal on the 17th March, 1951, and also the case of Thomas v. Sorrel (1673) 2 Keb. 372, 791 referred to in the said judgment. I am satisfied that prima facie Exhibit "A" is a Concession, and under section 4 of the Concessions Ordinance it is subject to the said Ordinance.'

"We are unable to agree that this could be a sufficient reason, within the meaning of Order 39, r.1 (1), to enable the judge to review his previous judgment."

In this present application I do not think that there has been a discovery of any new and important matter or evidence. I do not also think that the fact that the order of the 14th November, 1960, "was in the premises wrong in law" constitutes sufficient reason for a review within the meaning of Order 39, rule 1 (1).

I would therefore dismiss this application.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

Defendant / Respondent

Referals

Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R. 89, C.A.

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/e4f08ce14b07dca32d326727b26ea178): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48