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YANNEY v. AFRICAN VENEER MAHOGANY EXPORTERS LTD.


  • appeal
  • 1960-04-13
  • COURT OF APPEAL
  • GLR 89-91
  • Print

KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.


Summary

Practice?-Review?-Filing of notice of appeal terminates judicial power to review?-Review to be by way of rehearing?-Reconsideration of point of law not a sufficient reason for review?-Supreme Court (Civil Procedure) Rules, Order 39.

Headnotes

On the 22nd May, 1946 the Aowin Stool entered into an agreement in writing (subsequently marked "Exhibit "A") with the plaintiff under which he claimed to have purchased, and obtained the right to fell mahogany trees in a certain area. Subsequently, the defendants obtained a Certificate of Validity in Concession Enquiry No. 2243 (Sekondi), relating to an area which (as they claimed) included that covered by the agreement between the stool and plaintiff. A clash of operations followed and on the 2nd June, 1956, plaintiff issued a writ against the defendants claiming G4,560 as the value of trees allegedly converted by the defendants and G2,500 general damages. On 20th April, 1959, the court gave judgment for plaintiff in the sum of G4,320.On the 2nd May, 1959, the defendants filed notice of appeal. On the 9th May they filed also notice of motion for special leave to apply for review of the judgment of the 20th April, 1959, on the ground that the judgment was expressed to be based on the evidence as a whole and did not make it apparent that the learned judge had fully considered the implications in law of the Concessions Ordinance, particularly sections 2, 7, 8 and 10, and the established judicial interpretations thereof. The motion came on for hearing on the 18th May, when counsel for plaintiff opposed it on the ground that Order 39, rule 1 of the Supreme Court (Civil Procedure) Rules excludes from review a judgment from which an appeal has been preferred. (The rule cited provides that "Any person considering himself aggrieved (a) by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a judgment or order from which no appeal is allowed ... may apply for a review.") Counsel for the defendants informed the court that notice to withdraw the appeal had been filed (a statement of which the Court of Appeal subsequently said that " it appears now not to be true"), and the hearing of the motion proceeded. The learned judge (Sarkodee-Adoo, J.) granted the motion for review, set aside the judgment of 20th April, 1959 and dismissed the plaintiff's action. Plaintiff appealed from this ruling to the Court of Appeal.

Judgement

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 mistake or error apparent on the face of the record, or for any other sufficient reason. In the instant case we are unable to say that there was a discovery of any 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 [p.91] 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.

For these reasons we allow the appeal. The ruling of the learned judge delivered on the 18th May, 1959 is set aside, and consequently the judgment (together with the order as to costs) delivered on the 20th April, 1959 remains the judgment of the trial court in this matter.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

Gaisie

Defendant / Respondent

No apperance

Referals

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