Otoo and Others Vrs Otoo and Others [2015] GHASC 151 (28 January 2015)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA, AD 2015 CORAM: DOTSE JSC (PRESIDING) BAFFOE-BONNIE JSC GBADGEBE JSC SINGLE JUDGE REVIEW MOTION NO. J7/3/2015 28TH JANUARY 2015 1. NORA OTOO - PLAINTIFFS/RESPONDENTS 2. EMMANUEL OTOO /APPELLANTS/RESPONDENTS 3. FELIX NORTEY OTOO /RESPONDENTS VRS. 1. REUBEN OTOO - DEFENDANTS/APPELLANTS 2. RICHARD OTOO /RESPONDENTS/ APPLICANTS 3. RUDOLPH OTOO /APPLICANTS 4. FRANCIS OTOO 5. NARTEY OTOO _____________________________________________________________ ___________________RULING___________________________ GBADEGBE JSC:- We have before us an application that seeks the reversal of the decision of a single Justice of this court that refused to grant leave to the Applicants herein to file a supplementary affidavit and supplementary statement of case in a pending review application before this court. The background to the application herein is that following the decision of this court in an appeal involving the parties herein, the applicant filed a motion for review of the decision of the ordinary bench. It repays to say that the case which was contested from the trial court and culminated in the decision of the ordinary bench of this court on 17 July 2014 was concerned simply with the construction of the will and indeed, the review application that was filed by the Applicants herein on 15 August 2014 dealt only with issues that alleged misconstruction of the will the subject matter of the action herein by the ordinary bench. Following the filing of the review application, the Applicants applied to the court presided over by a single Justice for leave to be enabled to file a supplementary affidavit and statement of case in the review application. After hearing the parties, the learned judge refused to yield to the invitation of the Applicants. Dissatisfied with the said ruling, the Applicants are now before us by virtue of article 134 of the 1992 Constitution for a reversal of the decision. By the application herein, we are enabled to reconsider the application which was refused on 15 August 2014 and in particular determine whether the order of 15 August 2014 was a proper exercise of discretion by the learned judge whose decision we are entitled to treat with respect and reverse same only if we are satisfied that the refusal was an injudicious exercise of discretion. We have examined the grounds of the application and in particular the contention that the learned Justice whose decision is before us for reconsideration did not exercise the discretion conferred on him properly and wish to say at once that we think that that decision was correctly pronounced. As we are in agreement with the single Justice’s decision and the reasons provided therefore, we do not think it necessary to repeat the said reasons in the course of our determination of the instant application. We are of the view that faced with the nature of the application before him; the single Justice could not have reached a different conclusion. We are also of the opinion that the facts in respect of which the Applicants strenuously sought to raise for the first time in the review application namely - that the will which was the subject matter of the action herein was made by an illiterate and signed by him without an interpretation clause raises for the consideration of the Court essentially a new matter or fact that was not raised on the pleadings on which the action was contested from the trial High Court to the Supreme Court and that being so, it is not only inconvenient to allow such a new case to be introduced at that stage in the proceedings but would occasion injustice to the Respondents. See: (1) New Zealand and Australian Land Co v Watson (1881) 7 QBD, 374; (2) Green v Miller, 109 ER 1335. Reference is made to the speech of Bramwell LJ in the New Zealand case (supra) at page 382 as follows: “But the first observation that I have to make upon it is that no such case as this is in the statement of claim, nor was it made before the jury or in the argument before Mr. Justice Field. If pleadings are to be of any use a man should be bound by the statement of his case, so that a defendant may know what he has got to answer. Otherwise pleadings are a snare and a delusion. I do not say that an application may not sometimes be properly made to the court in which the record is, for leave to amend the statement of claim so as to raise a different question from that which is already in it, but I think it an inconvenient thing when the question comes to be discussed before the Court of Appeal, that an entirely new point should then be raised.” We observe that since the leave was sought to enable the Applicants put across their case which is pending before the review panel and involves an entirely new matter, the consideration that should weigh on us should be the same as those in an application that seeks leave to amend pleadings, and accordingly where such an application raises a new case and or issue for the first time after the decision on the appeal by the ordinary bench of the Supreme Court, then it can be said that the new case being set up is not necessary for the purpose of determining the matter in controversy between the parties. We venture to say that it is doubtful if the new matter raised can conveniently be tried in the pending application together with the issues on which the action herein was contested from the trial High Court to the decision of the ordinary bench of this court as its effect would be to change the whole tenor of the Applicants case at this late stage. See: Mahama Hausa v Brako Hausa [1972] 2 GLR 289. In our view, these reasons are sufficient to dispose of the application herein; the result of which is that the application is refused. (SGD) N. S. GBADEGBE JUSTICE OF THE SUPREME COURT (SGD) J. V. M. DOTSE JUSTICE OF THE SUPREME COURT (SGD) P. BAFFOE BONNIE JUSTICE OF THE SUPREME COURT COUNSEL. GODFRED YEBOAH DAME ESQ. (WITH HIM FREEMAN SABBAH AND JUSTICE OTENG ) FOR THE DEFENDANTS /APPELLANTS/ APPELLANTS/ APPLICANTS /APPLICANTS. DIANA ASONA DAPAAH ESQ. WITH HER LESTER OHEMENG AND VELDA ADOBEA ATUAH FOR THE PLAINTIFFS/RESPONDENTS/ APPELLANTS /RESPONDENTS/RESPONDENTS. 6