IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2017
SKYLIMIT STRUCTURE - (Plaintiff)
TULLOW GHANA CO. - (Defendant)
DATE: 7TH MARCH, 2017
SUIT NO: BDC/8/13
JUDGES: GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT
MENKA-PREMO FOR DEFENDANT/J/DR/APP
THADDEUS SORY FOR PLAINTIFF/J/CR/RESP
In this application defendant/judgment/debtor/applicant (hereafter called the “Applicant”) prays this court for a review of the award of costs and the dismissal of defendant’s application for stay of execution pending appeal. The applicant contends that the court failed to look at the supplementary affidavit attached to the applicant’s application for stay of execution and that if the court had given consideration to the said supplementary affidavit, the court would not have arrived at the conclusion that “the evidence led by the applicant in the instant application fails to discharge the legal burden.” Again, the applicant contends that the cost of GHS 3,000.00 awarded against the applicant is excessive and might not even had been awarded considering all the facts narrated in the application. It was further contended by the applicant that in dismissing the application for stay of execution, the court failed to exact security from the Plaintiff/Judgment/Creditor/Respondent (hereafter called the “Respondent”).
In the view of applicant, the applicant is willing and ready to provide a bank guarantee that ensures payment to be made to the Respondent in the event the appeal fails.
Let me briefly state the background to the present application. On the 14th December, 2016 the court entered judgment for the respondent herein after a lengthy trial that spanned more than 12 months. The applicant dissatisfied with the judgment lodged an appeal at the Court of Appeal and followed it up with a motion for stay pending appeal. The motion was argued and the court delivered its ruling on the 9th February, 2017, dismissing the motion. The court awarded costs of GHS 3,000.00 against the applicant. It is the ruling of the court delivered on the 9th February, 2017, that the present application has been filed for its review.
I have read the application and the respective affidavits filed by the parties. I have considered the submissions made by both counsel. Thoughtful consideration has been given to Order 74 of CI 47 rule 12 thereof and Order 42 of CI 47. Consideration has further been given to the principles governing applications for review. It is however, useful to reproduce Order 42 and 74.
Order 42 rule 1 (1) & (2)
1 (1) A person who is 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 upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order.
a party who is not appealing against a judgment or order may apply for a review of that judgment or order notwithstanding the pendency of an appeal by any other party, except where the ground of the appeal is common to the applicant and the appellant, or where, being the respondent, he can present to the Court of Appeal the case on which he applies for the review.
Order 74 rule 12 (1) & (2)
12 (1) Where the Court awards costs, or declines or fails to award costs, any party aggrieved by the award or failure or refusal of the court to award costs to the party may, within fourteen days after the date of such award or failure or refusal, apply to the court to review its decision.
(2) Where the court assesses the amount of any costs, any party aggrieved by the assessment on the ground that
(a) the amount assessed in favour of that party is inadequate; or
(b) the amount assessed against that party is excessive,
May, within fourteen days after the date of such assessment, apply to the court to review its decision.
It is relevant for me to re-echo what ADADE JSC said in the case of MECHANICAL LLOYD ASSEMBLY PLANT LTD v NARTEY [1987-88] 2 GLR 196 @200 where he said:
“The review jurisdiction is a special jurisdiction to be exercised in exceptional circumstances. It is not an appellate jurisdiction. It is a kind of jurisdiction held in reserve, to be prayed in aid in the exceptional situation where a fundamental and basic error may have inadvertently been committed by the court, which error must have occasioned a gross miscarriage of justice. The review jurisdiction is not intended as a try-on by a party after losing an appeal; nor is it an automatic next step from an appeal; neither is it meant to be resorted to as an emotional reaction to an unfavourable judgment.”
Aikins JSC, in AFRANIE v QUARCOO  2 GLR 56 @609 also stated:
“It is essential that this court accommodates a re-examination of the judge’s previous thinking.... With a view to correcting a fundamental mistake that has occurred. If this is not done, the exercise of the review power would end in futility and only serve to rubber stamp or confirm a previous stance of the court which may result in a miscarriage of justice.”
These two decisions clearly spell out the intendment of Order 42 rule 1 of CI 47 which is that an application for review of a judgment or order may be made upon the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the applicants knowledge or could not be produced by the applicant when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any sufficient reason.
The Supreme Court in the case of NASALI v ADDY [1987-88] 2 GLR 286 had this to say about review of judgments and orders:
“...... all persons who have lost a case are likely to complain of a miscarriage of justice, but ..... in the absence of exceptional circumstances such complaints are a poor foundation for the exercise of the review power for it is only in exceptional circumstances that the interest rei publicae ut sit finis litum principle yields to the greater interest of justice.”
And test for this was stated in AGYEKUM v ASAKUM ENGINEERING CONSTRUCTION LTD  2 GLR 637, at the holding 2 as:
“The acid test remained always the existence of exceptional circumstances and the likelihood of miscarriage of justice that should provoke the conscience to look at the matter again.”
What constitute exceptional circumstances was addressed by the Supreme Court in the case of In Re EFFIDUASE STOOL AFFAIRS (NO. 3), REPUBLIC v NUMAPAU, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX PARTE AMEYAW II (NO. 3) [1999-2000] 2 GLR 629 @ 632 where Wiredu JSC stated:
“what constitute exceptional circumstances cannot be comprehensively defined. In previous decisions, it has been described as ‘some fundamental or basic error, which the court inadvertently committed in the course of considering its judgment......’ The revised 4th edition of Black’s Law Dictionary defines ‘miscarriage of justice’ to mean, ‘prejudice to the substantial rights of a party.’ We find this definition very useful. In sum, therefore..... it was incumbent on the applicant to show that his substantial rights in the matter that came before this court have been prejudiced by some fundamental or basic error made by the majority......”
In the case before me, the complaints of the applicant are of 3 folds, namely:
That the court overlooked the supplementary affidavit attached to the application for stay and as a result of this oversight, the court came to the conclusion that the burden of persuasion has not been discharged.
That the cost of GHS 3,000.00 awarded against the applicant was excessive having regard to the circumstances.
That the Applicant was ready to provide bank guarantee for the payment of the judgment debt in the event the appeal fails in view of the fact that the Respondent was not made to provide security upon the dismissal of the application for stay.
In the first place, it is not correct for the applicant to say that the court overlooked the supplementary affidavit it attached to its motion for stay. At page 10 of the ruling of this court dated 9th February, 2017 the court stated:
“It is a proven fact in this case that the respondent owns equipment and machines, not forgetting an operational base. This fact has been acknowledged by the applicant in paragraph 10 of their supplementary affidavit in which they deposed to the fact that the respondent has ‘equipment lying idle.”
Then at page 4 of the ruling the court noted that:
“I have read the application and the affidavits filed by both parties.”
It is noted that in evaluating the evidence adduced in a case, the court need not quote verbatim every material fact deposed to in an affidavit or in the evidence of a witness. An examination of the supplementary affidavit discloses that the applicant related to the income and liabilities of the respondent. It is important to note that at page 10 of the ruling, in considering whether the respondent would not be able to refund the judgment debt in the event the appeal succeed, the court noted as follows:
“It is noted that when a court is called upon to determine the financial strength of a company, it does so looking at the assets and liabilities of the said company.”
From the foregoing analysis, it is clear that the court did not overlook the supplementary affidavit that the applicant attached to its application for stay of execution. In any case, the said supplementary affidavit did not disclose the total liabilities or assets of the respondent company. In that regard, the court examined the entire evidence led in the matter to do the evaluation.
Assuming, for a moment, that the court overlooked the supplementary affidavit, can it be said that the present application should be granted? Unless an applicant for review establishes exceptional circumstances resulting in substantial miscarriage of justice, a decision of a court must not be disturbed.
In my view the present application does not disclose any exceptional circumstances; neither has the applicant disclose any miscarriage of justice. It is noted that in an application for stay of execution, the court has a discretion, which discretion if refused, the applicant has the right to repeat the said application at the appellate court. See Order 27 and 28 of the Court of Appeal Rules, 1997 (C.I.19)
It is therefore my considered opinion that from the totality of the case the applicant failed to establish any exceptional circumstances and a miscarriage of justice. The application should fail on this issue.
The next issue the applicant raised is the excessiveness of the cost awarded. It is noted that the application was fought competitively by both parties. Parties filed processes. And looking at the efforts and industry made by both counsel during the determination of the application, I am of the view that the cost of GHS 3,000.00 awarded in favour of the respondent is reasonable and should not be disturbed. The application for the review of the costs is accordingly refused.
I now turn to the issue of the applicant being ready to provide bank guarantee for the payment of the judgment debt in the event its appeal fails. The effect of considering this issue is to re-open the application for stay of execution which has been dismissed as far back as 9th February, 2017.
It is my considered view that the issue should be disregarded and same is accordingly disregarded.
The court cannot re-open the dismissed application for stay of execution.
In the circumstances, I find the present application for review incompetent and of no merit, brought only to frustrate the respondent in their quest to enjoy the fruits of their victory.
Accordingly, the application is dismissed. I award to the respondent cost assessed at GHS 2,000.00 against applicant.