ODEHE VRS MENSAH & 2 ORS (J8/81/2024) [2024] GHASC 55 (13 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024 CORAM: PWAMANG JSC (PRESIDING) KULENDI JSC GAEWU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC CIVIL MOTION NO. J8/81/2024 13TH NOVEMBER, 2024 MONICA ODEHE ………… PLAINTIFF/RESPONDENT/APPLICANT VRS 1. BENJAMIN MENSAH 2. NII SHPPI KUTOR III DEFENDANTS/APPELLANTS/RESPONDENTS 3. EVANS TETTEY GIDIGAN RULING MAJORITY OPINION ADJEI-FRIMPONG JSC: This application invokes this Court’s jurisdiction to grant special leave to bring an appeal before it under Article 131(2) of the Constitution. The application has a brief antecedent. Page 1 of 41 On the 30th of March 2023 the Court of Appeal gave judgment against the Applicant (as Plaintiff/Respondent) in favour of the Respondent (as Defendant/Appellant). The judgment of the Court of Appeal is before us as Exhibit A. Significantly, the suit commenced at the Circuit Court from where the appeal lay to the Court of Appeal. The Applicant initiated an appeal against the said judgment by filing a Notice of Appeal directly in this Court (Exhibit B). Apparently, that was a foul step. Being a judgment in a matter that had commenced in the Circuit Court, the Applicant could have appealed to this Court by leave of the Court of Appeal pursuant to Article 131(1)(b) of the Constitution. She had no right to appeal as of right. Conceding however, she attributes the error to what is described as “acting out of extreme urgency”. She subsequently filed an application for special leave to appeal before this Court. The said application was however withdrawn on the 29th November 2023 for the reason that, the defective Exhibit B (the original Notice of Appeal) was still subsisting at the filing of that application. She then proceeded to file a Notice of Withdrawal seeking to withdraw Exhibit B. The Notice of Withdrawal is Exhibit C before us. And now, thinking that she has a clean slate, she files the instant application for Special Leave in this Court. The application has been strenuously opposed by the Respondents. Two paragraphs in the affidavit in opposition present the main grounds for resisting the application. They are: Page 2 of 41 “5. That I am advised and verily believe same to be true that paragraphs 10 and 11 of the affidavit in support of the Applicant’s motion are of no effect in as far as Applicant has failed or neglected to comply with the provisions of the Supreme Court rules (C.I 16) and Article 131(1) of the 1992 Constitution of Ghana which enjoin the Plaintiff/Respondent/Applicant to apply for leave at the Court of Appeal before she could file a notice of Appeal to the Supreme Court. This could be done within 14 days after the delivery of the judgment he/she intended to appeal against since the judgment emanated from the Circuit Court.” 8. That I deny paragraph 14 of the affidavit in support of Plaintiff/Respondent/Applicant’s motion and oppose same by saying that what end of justice will it serve if Applicant has failed to comply with statutory and constitutional provision to seek leave within 14 days of delivery of judgment to appeal to the Supreme Court and she is now applying for special leave to appeal to the Supreme Court one year after the court had delivered the judgment on 30th of September 2023. Granting this will rather be a travesty of justice, I am advised.” We understand the Respondents, by the above depositions to be saying that once the Applicant failed to seek leave within 14 days of the delivery of the judgment pursuant to article 131(1)(b), she could not properly invoke the provision in article 131(2) and in any event bringing the application one year after the judgment will not meet the justice of the case. We think the position taken by the Respondents is an invitation to us to examine the scope of our jurisdiction under article 131(2). Carefully analyzed, the Respondents’ position appears to seek a narrower scope of the provision in article 131(2). They think, not exploring article 131(1)(b) disables one from invoking article 131(2) and also that delay is necessarily a disabling factor. Page 3 of 41 Whilst from the jurisprudence of this Court, the nature and scope of our jurisdiction under Article 131(2) appears largely settled, the Respondents’ position in so far as it seeks a narrower scope, warrants a revisit of the subject. For this, we shall indulge ourselves a brief retrospect of some of the decisions this Court has reached on the subject as this will light our path as we proceed to examine the supplication made before us. In effect, beyond merely determining whether the application merits a favourable exercise of our jurisdiction under article 131(2), it also falls for us to decide whether the prevailing nature and scope of the jurisdiction should be kept open. The appellate jurisdiction of the Supreme Court by Article 131 is created as follows: “(1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court – (a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or Regional Tribunal in the exercise of its original jurisdiction. (b) With the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or in the public interest. (2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.” Page 4 of 41 The provisions are re-enacted by Section 4 of the Courts Act, 1993 (Act 459) as amended. The Supreme Court Rules, 1996 (C.I 16) (as amended) also makes the following provisions under Rule 7: “7(1) An application for leave to appeal under paragraph (b) of clause (1) of article 131 of the Constitution shall be by motion on notice in the Form 2 set out in Part I of the Schedule to these Rules and shall be filed with the Registrar of the court below within fourteen days of the date of the decision against which leave to appeal is sought. (2) An application for special leave to appeal under clause (2) of article 131 of the Constitution shall be by motion on notice in the Form 3 set out in Part I of the Schedule to these Rules, and shall be filed with the Registrar of the Court within fourteen days of the refusal of the court below to grant leave to appeal. (3) Where leave to appeal is granted the appellant shall file a notice of appeal in accordance with the provisions of these Rules. (4) Notwithstanding sub rules (1) to (3) of this rule an application for special leave to appeal under clause (2) of article 131 shall be entertained by the Court and the Court may grant leave on such terms as the Court may consider fit having regard to the circumstances of the case.” In DOLPHYNE (NO.2) VRS SPEEDLINE STEVEDORING CO.LTD (1996-97) SCGLR 373, the Plaintiff had obtained judgment in the Circuit Court against the Defendants on 28th June 1990 in an action for inter alia, damages for fraud. That judgment was, on appeal by the Defendants, set aside by the Court of Appeal in its judgment delivered on 14th January 1993. On 28th January, the Plaintiff filed notice of appeal in the Supreme Court against the judgment of the Court of Appeal. The appeal was, however struck out as incompetent by the Supreme Court for non-compliance with article 131(1)(b) of the 1992 Constitution. Page 5 of 41 The Plaintiff applied under article 131(2) for a special leave by the Supreme Court to appeal against the judgment of the Court of Appeal. The Defendants raised a preliminary objection against the application on the grounds inter alia, that having exhausted his right of appeal under article 131(1), the Plaintiff could not invoke article 131(2). They also contended that the word “Notwithstanding” in article 131(2) “did not open floodgates for incompetent appeals to be resurrected”. By a unanimous decision, this Court held that the provision in article 131(2) of the 1992 Constitution must govern the provisions of article 131(1)(a) and (b). It was observed that the word “Notwithstanding” in article 131(2) meant that without being affected by the provisions under 131(1), the Supreme Court might entertain an application for special leave to appeal in respect of appeals from any decision or judgment of the Court of Appeal and no other Court. Thus the Supreme Court might in appropriate cases ignore the provisions in article 131(1) and grant special leave bearing in mind the facts of each case and the need to prevent failure of justice. To so hold according to the Court, was not to open the floodgates to incompetent appeals as contended. In KOTEY V KOLETEY [2000] SCGLR 417, the case originated from the Circuit Court and the judgment of the Court of Appeal against which appeal was sought was given on 23rd December 1999. The applicant had fourteen days under Rule 7(1) of the Supreme Court Rules to apply for leave to appeal to the Supreme Court. The Applicant had failed to apply to the Court of Appeal for leave and the reason he gave was that he had to look for a lawyer and then his lawyer had to apply for stay of execution at the Court of Appeal which was dismissed. It was after this that the lawyer realized he was to apply within fourteen days for leave to appeal to the Supreme Court. Since the taking of a false a step did not stop time from running, he had no other alternative than to avail himself of the provision for special leave under Rule 7(4). The other side had argued that the time limit Page 6 of 41 of fourteen days under Rule 7(1) and (2) ought to apply to Rule 7(4) even though no time limit had been provided for under the latter. Not doing so, it was argued, would prevent the victorious party from celebrating his victory. The Court granted the application for special leave. As was observed by BAMFORD ADDO JSC at page 422-423 of the report: “The special leave referred to by article 131(2) and rule 7(4) of C.I 16 is very special indeed and it is also unfettered by any rules or law since the grant of leave was left entirely at the discretion of the Supreme Court. This leave is under section 4(4) of the Courts Act, 1993 (Act 459), not subject to any condition of appeal under the Rules of Court, i.e., CI 16. It is a special favour which is given to litigants who have good and valid appeals to enable them appeal even though they are under the Rules of Court out of time within which to appeal so as to prevent failure of justice.” The Court then proceeded to set out the guiding principles to assist in determining whether to grant special leave or not. Those were: “(a) where there was prima facie error on the face of the record; (b) A general principle of law had arisen for the first time (c) A decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public.” In GYIMA V ABROKWA [2011]1 SCGLR 406, the Court declined the applicant’s application for special leave and the reasons were that he had deposed to falsehoods in his affidavit and the Court was also not satisfied that the errors complained of to ground the grant of the application were apparent on the face of the record. Page 7 of 41 That was a case where the Court of Appeal had reversed the judgment the applicant had obtained at the trial Circuit Court. Having failed to apply within fourteen days for leave to appeal to the Supreme Court under article 131(1)(b), the Applicant applied for special leave under article 131(2) to appeal to the Supreme Court. R.C. Owusu JSC delivering the ruling of Court emphasized the wide discretionary power of the Supreme Court under article 131(2) citing ALLEN VRS SIR ALFRED MACALPHINE & SONS LTD [1968] ALL ER 547 and DOLPHYNE (No.2) VRS SPEEDLINE (supra). In her words: “The court being the highest court is given this wide discretionary power to do justice in appropriate cases. Indeed, in holding (2) of the headnote to the DOLPHYNE (No.2) case, the Supreme Court held that in the exercise of this unfettered discretion, the court is not bound by any rules of practice or procedure or any legislation. The principles to be applied as guides on which the Supreme Court might determine whether or not to grant special leave to appeal had been set down in the DOLPHYNE (No.2) case by the court (as stated in holding (3) of the headnote to the case) as follows: “(a) where there was prima facie error on the face of the record; or (b) a general principle of law had arisen for the first time; or (c) a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public.” In OSEI & ORS VRS ANOKYE (substituted by) AMOO-GOTFREID [2007-2008] SCGLR 463, this Court again declined an application for special leave to appeal in a matter that had started from the district court. Doing so, the Court examined the entire circumstances of the case and weighed them against the guiding principles to grant or refuse such applications. WOOD CJ observed at page 466—467 of the report: Page 8 of 41 “The principles—to be applied as guides –on which the Supreme Court might determine whether to grant special leave to appeal or not were: (a) where there was a prima facie error on the face of the record; or (b) a general principle of law had arisen for the first time; or (c) a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public. We understand this last principle under (c) to be referable to, not just any legal question but those novel point of law that raise substantial issues of some public importance. The Supreme Court in its decision in Kotey v Koletey [2000] SCGLR 417 and Ansah v Atsem [2001-2002] SCGLR 906 has expanded the law further and observed that in such exercises, other factors such as public policy, the need for litigation to come to an end, the need to avoid inordinate disrespect for the rules of court and the need to avoid prejudice or hardship or inconvenience to the party in whose favour the judgment which is to be appealed against was rendered must be given due consideration. In applying these principles to the peculiar facts of the case, we find ourselves unable to exercise our discretion in the applicant’s favour. This is a simple landlord and tenant case, which from the onset was, in any event, completely devoid of any novel, let alone substantial question of some public importance, has been pending in the courts for some thirteen years. Again there is no evidence to suggest that in the course of the appellate hearing, a substantial legal issue of serious public interest arose for determination by the appellate courts, ie the High Court or the Court of Appeal or this court…No reference or disclosure is made in the proposed grounds of appeal of any error of law apparent on the face of the record; neither is there any serious legal issue being raised for our consideration.” In SOSU VRS GENERAL LEGAL COUNCIL (CONSOLIDATED) [2017-2018]2 SCGLR 611, APPAU JSC siting as a single judge of this Court referred to a number of the previous decisions of this Court and found the application meritorious of the exercise of the discretion. He said: Page 9 of 41 “Clearly, the applicant is not deprived by the law from bringing the instant application before the court. “Special leave” applications provided for under article 131(2) of the 1992 Constitution are, by their nature and description, special. They are neither fettered by rules of practice nor even legislation. This Court in the case of DOLPHYNE (No.2) V SPEEDLINE STEVEDORING CO LTD [1996-97] SCGLR 373 at 384 made that point clear. The Court held; in exercising its unfettered discretion under article 131(2) of the Constitution, the Supreme Court is not bound by any rules of practice or procedure or any legislation. This Court therefore has the power in appropriate cases, to ignore the provisions of article 131(1) and grant special leave to appeal in respect of appeals from any judgment or decision of the Court of Appeal. The Court, however, does not exercise this power without any limitation. The Court is guided by laid down principles which govern its decision-making on whether to grant or to refuse such an application. These have been catalogued in the DOLPHYNE case (supra) and subsequently applied by this Court in several cases including Kotey v Koletey [2000] SCGLR 417; Ansah v Atsem [2001-2002] SCGLR 906 and Osei v Anokye [2007-2008]1 SCGLR 463…” Continuing, the learned judge referred to his previous opinion in another case thus: “I wish to recall a statement I made in my ruling concerning special leave applications in the case of Mining and Building Contractors Ltd v Anglogold Ashanti Ltd [201-2020]2 SCGLR 590 at page 602 ante of the Report: “The authorities have made it clear that the discretion of the court in entertaining such applications under article 131(2) of the Constitution, 1992 and rule 7(4) of the Supreme Court Rules, 1996 (CI 16) is a perfectly free one, unlimited by any rules of procedure. The only question that confronts the court for an answer when considering such applications is; whether upon the facts of the Page 10 of 41 particular case or the case in question, the discretion should be exercised in the applicant’s favour.” His Lordship reached a similar decision when he had another opportunity to decide a similar application involving the General Legal Council in GENERAL LEGAL COUNCIL & ANOR VRS KODUAH [2017-2020]1 SCGLR 1065. Finally, in APPIAH-NKYI VRS NANA ACHINA NUAMAH Civil Motion No. J8/132/2016 27TH October 2016; [2016] GHASC 82 our venerable brother Pwamang JSC sitting as a single judge of this Court granted special leave to allow the applicant appeal in this Court even though the Court of Appeal had refused to grant leave under article 131(1)(b) upon a preliminary objection by the other side. The learned jurist granted special leave because he determined that the Court of Appeal in its judgment in the substantive matter had committed an error of law on the face of the record which needed to be clarified. He observed as follows: “The statement by the Court of Appeal that the Supreme Court in Awuku v Tetteh held that a grant of stool land by the occupant of the stool with the consent and concurrence of a minority councilors is null and void is not entirely correct. I have closely read that case and do not find that holding in it. In a similar vein, the position by the Court of Appeal that it is settled law that a grant of stool land by the occupant of the stool and minority of his councilors is null and void is in fact inconsistent with what is stated at page 128 of N.A Ollenu’s book; Principles of Customary Land Law in Ghana which was referred to by the court in its judgment…. I therefore find that prima facie, the Court of Appeal committed error of law apparent on face of the record by stretching this court’s decision in Awuku v Tetteh to cover a fundamental principle of customary law that was not considered in that case…One of the grounds on which this court will grant special leave to appeal in Page 11 of 41 the exercise of its jurisdiction conferred by Article 131(2) of the 1992 Constitution is where there is a prima facie error of law on the face of the record as I have found in this case. Another ground is where a decision on a point of law will inure to the benefit of the general public as I have pointed out above… In the circumstances, I will exercise my discretion and grant special leave to the applicant to appeal to this court.” The foregoing has been the attitude of this Court in the exercise of its jurisdiction under article 131(2). It is a jurisdiction not fettered by any procedural requirements as to timelines and procedural preconditions. It is exercised on case by case basis, each case being determined on its own peculiarities. The guides set out in the cases are not exhaustive. That is what makes the jurisdiction a special one. Not only is it special, but it carries a residuary character. Residuary in the sense that it is impractical to detail every situation in which it may be exercised. It is a fall-back provision to be resorted to when the need to do justice arises this Court being the earthly uppermost forum of justice. This is not to say that it is for the asking. An applicant needs to demonstrate a genuine merit for it. Contrary to the Respondents’ standpoint, we believe it is important to keep the discretion under the provision so open and unfettered. We must recall that the provision for the grant of special leave under article 131(2) is not new. It has been part of our constitutional arrangement since the 1969 Constitution. Article 105(2) of the 1969 second republican Constitution created the provision for special leave to appeal in the Supreme Court. It provided thus: “Notwithstanding the provisions of the preceding clause, the Supreme Court shall have power to entertain any application for special leave to appeal in any cause or matter, civil or criminal, to the Supreme Court, and to grant such leave accordingly.” Notably, the Page 12 of 41 “preceding clause” referred to, were provisions in pari materia to the provisions in article 131(1) of the current constitution. The 1979 third republican Constitution re-enacted the provision under article 117(2) as follows: “Notwithstanding the provisions of clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal in any cause or matter, civil or criminal, to the Supreme Court, and may grant such leave accordingly.” Here again the clause (1) referred to contained provisions in pari materia to the provisions in article 131(1) of the current constitution. Just as the framers of our constitutions have been consistent in providing for special leave to appeal to the Supreme Court, the jurisprudence of this Court attests to an established practice where the provision has been resorted to and the jurisdiction exercised in open, broad and unfettered manner in appropriate cases to do justice. It is an arrangement we must sustain and not depart from. Is the instant application worth- granting? Examining the processes before us, our attention is drawn to a legal point in the judgment sought to be appealed against which cannot be ignored. The learned Justices of the Court below attacked this Court’s decision in the case of LIZORI LTD VRS BOYE & DOMESTIC SHOOL OF SCIENCE AND CATERING [2013-2014] SCGLR 889 (LIZORI) on the issue of admissibility of unstamped documents under the Stamp Duty Act, 2005 (Act 689). The Court below, speaking through Kyei Baffour JA was not short of anything to say LIZORI was wrongly decided. Even whilst reluctantly recognizing that both the High Page 13 of 41 Court and the Court of Appeal were bound by the decision in LIZORI, a careful reading of the judgment reveals clear prejudices and erroneous impressions about the decision which colourized some of the findings the Court made. For instance, at page 11 of the judgment the Judge found: “It is my view that if we are bound by the decision of the apex [court] on unstamped document as inadmissible evidence as seen in the Lizori case notwithstanding our disagreement with the ratio in that case, then the case of the respondent at the trial had a weak foundation to stand on in the face of Exh “1” being the lease produced by 1st appellant as well as Exh “4” that is the land certificate.” Further to that, the judge had concluded the decision of the Court as follows: “Adherence to the precedent in Lizori case has led to this unfortunate conclusion for the respondent. As we only dispense justice in accordance with law but not emotions and sentiments no matter how unfair the conclusions appear to be, any contrary position in the face of the rejection of the lease of respondent would be logically incoherent and unsound. Notwithstanding our affirmation of the findings made by the trial judge on the demeanour of some of the appellants as it was well within the remit of the trial judge to make, we set aside the judgment entered on behalf of the respondent and in its stead enter judgment for the 1st appellant for the reasons sufficiently canvassed in this judgment.” Stripped of the unmeasured language used by the judge to criticize the decision of this Court in his analysis which may not even present the correct legal position, we think his comments nonetheless bring to the fore the perennial division of opinion in the jurisprudence of this Court on the issue of admissibility of unstamped document under the Stamp Duty Act (Act 689). See the cases of AMONOO & ORS VRS DEE [1975]1 GLR Page 14 of 41 302; ANTIE & ADJUWUAH VRS OGBO [2005-2006] SCGLR 494; LIZORI LTD VRS BOYE & SCHOOL OF DOMESTIC SCIENCE AND CATERING [2013-201402 SCGLR 889; MARY TSOTSOO LARYEA VRS AMARKAI LARYEA (Suit No. J4/36/2016, 7TH June 2018); WOODHOUSE VRS AIRTEL GHANA LTD [2017-2018] SCGLR 615 and NII AFLAH VRS BENJAMIN KWAKU BOATENG Suit No. J4/80/2022, judgment dated 22/03/23. On our examination of the judgment sought to be appealed against, we find that there is an issue of law of substantial importance to be addressed and to bring adequate clarity to the subject for the benefit of litigants and the public. A decision of this Court in the appeal, if special leave is granted, will enable litigants and the public better appreciate the true position of the law when it comes to the statutory responsibility of stamping of documents in general and the admissibility of unstamped or insufficiently stamped document during trials, in particular. Whilst acknowledging some attempts by this Court in recent past to clarify the legal position, we think it is still important to erase the persistent confusion in the minds of practitioners and even judges, some exemplified in the decision of the court below, and bring more consistency and unanimity to bear on our position on the matter. In effect, we think, overall, the application meets the test thus, the decision of this Court in the appeal will be advantageous to the public. It is true that prior to this application, the applicant fumbled with the procedure in appealing to the Supreme Court under article 131 (1)(b). She has however explained that her lawyer committed an error in proceeding to file a notice of Appeal directly, in this Court (Exhibit B). The judgment of the Court of Appeal (Exhibit A) was given on 30th March 2023. Exhibit B was filed at the Registry of this Court on 12th May 2023. Upon realizing the error in filing Exhibit B, the lawyer filed a motion on notice for leave to appeal in this Court. When the motion came to be heard on 29th November 2023, same Page 15 of 41 was withdrawn because Exhibit B was on record. (See Exhibit BM attached to the affidavit in opposition). On 27th February 2024, her lawyer filed Exhibit C which is a notice seeking to withdraw Exhibit B. The instant application was filed on 16th April 2024. We have considered the sequence of events leading to the filing of the instant application. What we find is evidence of wrong steps and steps to remedy the wrongs. These we think are excusable. On the authorities cited, taking a wrongful procedural step, unless it is so fatal and inexcusable, has not been shown to be a bar to the exercise of our discretion under article 131(2). And given the reason we assign to allow a grant of leave, we are ready to exercise our discretion in the applicant’s favour. Accordingly, we grant special leave to the applicant to file an appeal in this Court within 7 days. In doing so, we strike out the notice of appeal on record (i.e. Exhibit B) for which the notice of withdrawal was filed as being unwarranted. (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) (SGD.) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION PWAMANG, JSC: Page 16 of 41 My Lords, the applicant before the court has invoked the jurisdiction of the court under Clause 2 of Article 131 of the Constitution, 1992 and prays for special leave to appeal against the judgment of the Court of Appeal dated 30th March 2023. My honourable brother, Adjei-Frimpong, JSC, has written an insightful ruling on the application and I concur in his reasoning and conclusion. Nonetheless, I wish to say a few words in respect of when leave is required to appeal from a decision of the Court of Appeal to the Supreme Court and the provisions of the Supreme Court Rules, 1996 (C.I.16) in relation to applications for leave under article 131(1) & (2) of the Constitution. Article 131(1) & (2) of the Constitution, 1992 provide as follows; (1) An appeal shall lie from a judgement of the Court of Appeal to the Supreme Court- (a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or (b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest. (2) Notwithstanding clause (1) of this article, the Supreme Court may entertain application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly. A close reading of article 131 (1) & (2) shows that, besides chieftaincy appeals under article 131(4), there are three situations under which leave is required in order to appeal from a decision of the Court of Appeal to the Supreme Court. To begin with, it appears Page 17 of 41 from the language of clause 1 (a) of article 131 that, for an appeal from the Court of Appeal to the Supreme Court to be as of right, there are three conditions that must all exist: (1) the decisions being appealed from must be one given by the Court of Appeal in the exercise of its appellate jurisdiction; (2) the appellate jurisdiction of the Court of Appeal must have been in respect of an appeal that arises from a decision of the High Court; (3) the High Court must have given its decision in the exercise of its original jurisdiction. If any one of the above conditions is absent in relation to a decision by the Court of Appeal, then there is no appeal as of right conferred by article 131(1)(a). When there is no appeal as of right in the circumstances of article 131 (1)(a), then a person desirous of appealing may do so only with the leave of the court. This constitutes the first situation in which leave is required in order to appeal a decision of the Court of Appeal to the Supreme Court. This aspect of the appellate jurisdiction of the Supreme Court appears a bit complicated and it has been the source of confusion among practitioners with lawyers not certain when leave is required on account of the language of article 131(1)(a). There are precedents where the Supreme Court has stated categorically that leave is required in specified instances. See Owusu v Addo [2015-2016] 2 SCGLR 1479 and James David Brown v Ahantaman Rural Bank and National Labour Commission CA J4/74/2018 unreported judgment of Supreme Court dated 19th June, 2019. In the case of a decision by the Court of Appeal not covered by precedent, the best approach to determining whether leave to appeal is required or not on account of article 131(1)(a) appears to be, to first answer the question whether there is an appeal as of right in respect of the decision Page 18 of 41 in question. This question is answered by finding out if all of the three conditions stated above for an appeal as of right exist in respect of the decision. If any one of the conditions is absent then leave is required. The case of Owusu v Addo (supra) is an example of absence of the first condition, namely, the Court of Appeal must have exercised an appellate jurisdiction. In that case the Supreme Court found that the decision of the Court of Appeal which was sought to be appealed against was not a decision the Court of Appeal rendered in the exercise of its appellate jurisdiction but the decision was on a repeat application for stay of execution. Consequently, the court held that the appellant could not appeal as of right and therefore leave to appeal was required. James David Brown v Ahantaman Rural Bank and National Labour Commission (supra), was an instance where, though the Court of Appeal exercised an appellate jurisdiction, the appeal did not emanate from a decision of the High Court. In that case the appeal determined by the Court of Appeal emanated from a decision of the National Labour Commission and so there was no appeal as of right, wherefore leave was required to appeal to the Supreme Court. An appeal to the Supreme Court from a decision of the Court of Appeal would involve the third condition if, even though the Court of Appeal exercised an appellate jurisdiction and the appeal arose from a decision of the High Court, the High Court heard the case in exercise of its supervisory jurisdiction and not its original jurisdiction. For example, the determination by the High Court of a certiorari application seeking to quash a decision of a tax tribunal. Page 19 of 41 The second situation where leave is required to appeal from a decision of the Court of Appeal to the Supreme Court is the provisions of clause 1 (b) of article 131. This is quite straight forward and applies where the case originated in a court lower than the High Court. An example is a land matter that commenced in the District Court, was appealed to the High Court and further appealed to the Court of Appeal. A third appeal to the Supreme Court will require leave. The same is the case with a civil case that was commenced in the Circuit Court and was appealed to the Court of Appeal. A further appeal to the Supreme Court requires leave, never mind that it is only a second appeal as with a decision by the High Court in exercise of its original jurisdiction. It is difficult to justify this apparent difference in treatment of decisions of the Circuit Court and the High Court when it comes to appeals, but it is a direct result of the provisions in sections 11(3)&(4) and 42 of the Courts Act, 1994 (Act 459) which provide that civil appeals from the Circuit Court shall lie to the Court of Appeal. The third situation for leave to appeal to the Supreme Court is provided for under clause (2) of article 131. It is described as special leave, most probably because it is intended to serve a purpose different from regular leave to appeal. The regular leave to appeal when introduced in legislations conferring the right of appeal normally is for the purpose of filtration to sieve out frivolous appeals. But the purpose of clause (2) of article 131 is the other way round, and its purpose is to enable the court to bring on board appeals that have substantial merit but have been excluded by operation of the procedural rules governing appeals. Now, let us take a look at how the rules of procedure have sought to regulate applications and grant of the different types of leave to appeal from the Court of Appeal to the Supreme Court. Rule 7 of C.I.16 provides as follows; 7. Appeals by leave Page 20 of 41 (1) An application for leave to appeal under paragraph (b) of clause (1) of article 131 of the Constitution shall be by motion on notice in the Form 2 set out in Part I of the Schedule to these Rules and shall be filed with the Registrar of the court below within fourteen days of the date of the decision against which leave to appeal is sought. (2) An application for special leave to appeal under clause (2) of article 131 of the Constitution shall be by motion on notice in the Form 3 set out in Part I of the Schedule to these Rules, and shall be filed with the Registrar of the Court within fourteen days of the refusal of the court below to grant leave to appeal. (3) Where leave to appeal is granted the appellant shall file a notice of appeal in accordance with the provisions of these Rules. (4) Notwithstanding sub rules (1) to (3) of this rule an application for special leave to appeal under clause (2) of article 131 shall be entertained by the Court and the Court may grant leave on such terms as the Court may consider fit having regard to the circumstances of the case. The provisions of sub rule (1) above appear to competently regulate applications for leave that fall directly under clause (1)(b) of article 131 of the Constitution and there is no problem there. However, the same cannot be said of applications for leave under clause (2) of article 131. Two sub rules, that is (2) and (4) seek to regulate applications for special leave under the clause but they are plainly contradictory of each other. First, whereas sub rule (2) sets a condition and time limit for filing an application under clause (2) of article 131, sub rule (4) does not set any time limit and places no conditions on the Supreme Court’s power to grant special leave. There was clearly some confusion in the thinking of the Rules of Court Committee with regard to the nature of the jurisdiction the Constitution conferred on the Supreme Court under clause (2) of article 131. Page 21 of 41 As has been amply explained by Adjei-Frimpong, JSC in the lead opinion of the majority in this case, clause (2) is a reserve jurisdiction given to the Supreme Court by which, in a case that terminated at the Court of Appeal and the right of appeal is foreclosed on account of the procedure rules, the court may nonetheless, grant leave to appeal where it is in the interest of justice so to do. The effect of this court’s jurisprudence on clause (2) of article 131 is that the jurisdiction thereby conferred cannot be fettered by rules of procedure fixing time limits and imposing conditions. That being so, the last phrase in sub rule (2) of Rule 7 which states “…and shall be filed with the Registrar of the court within fourteen days of the refusal of the court below to grant leave to appeal” is inconsistent with the meaning and effect of clause (2) of article 131. Additionally, the reference to “the court below” in relation to clause (2) is also at variance with the plain meaning of clause (2). The jurisdiction conferred under article 131(2) is one normally conferred specifically on final courts in a legal system and it cannot be exercised by the Court of Appeal even as a court of first instance. In my opinion, the whole of sub rule (2) of Rule 7 ought to have been left out from C.I.16. But sub rule (2) is not the only problem with Rule 7. Sub rule (1) of Rule 7 is made referable only to leave to appeal required by clause 1(b) of article 131 of the Constitution. However, as I pointed out above, by virtue of the language of clause (1)(a) of article 131 and its interpretation by the court, there arises appeals from decisions of the Court of Appeal that do not fit into the as of right category. They also do not fall under clause (1)(b) for which specific provision for leave is provided in the Constitution. The question then is, how is leave to be obtained in that category of cases? In Owusu v Addo (supra) the Supreme Court subsumed them under clause (2) of article 131, meaning by application for special leave. In my view, appeals that require leave on account of the restrictive language of clauses (1) (a) of article 131 properly belong to the same class as the cases requiring leave under clause (1)(b) of article 131 of the Constitution. My view is Page 22 of 41 buttressed by my understanding of the special purpose of clause (2) of article 131 as intended for special circumstances where a right of appeal is foreclosed by failure to meet timeline for appealing or for applying for leave to appeal. The position I am advocating may be achieved if the sub rule (1) of Rule 7 is made referable to the whole of clause (1) of article 131 and not limited to (1)(b). This could be attained by an interpretative exercise but it should also be considered in the next opportunity to revise C.I.16. Yet I have observed an issue with sub rule (4) of Rule 7. The reference to sub rules (1) to (3) gives the impression that clause (2) of article 131 can be invoked only where a party fails to meet the time lines to apply for leave to appeal provided for under clause (1) of article 131. This appears so because sub rules (1) to (3) regulate the time for filing application for leave to appeal and how to implement an order granting leave. Does it mean that a person who has an appeal as of right under clause (1)(a) of article 131 but fails to meet the timelines provided for under Rule 8 of C.I.16 cannot apply for special leave under clause (2) of article 131? As explained above, the ambit of clause (2) of article 131 is very wide and in my opinion ought to encompass appeals as of right that have been foreclosed by failure to meet the time limits in Rule 8 of C.I.16. For that reason, in my thinking, the draftsman in sub rule (4) of Rule 7 should have used language to the effect that; “Notwithstanding anything to the contrary in these Rules, the Court may grant special leave to appeal on such terms as the Court may consider fit having regard to the circumstances of the case.” Furthermore, it is worth pointing out that the Constitution has provided a threshold to be met by an applicant praying for regular leave to appeal under article 131(1)(b), which is that the case must involve a substantial question of law or be in the public interest. However, when it comes to special leave under article 131(2), the Constitution does not provide a threshold neither does it provide any guide to the Supreme Court. The Court Page 23 of 41 has interpreted this as deliberate and has gone ahead, through judicial law making, to provide some guidelines to would be applicants. It needs to be realised that though these judicially determined guidelines for special leave start with the requirement of substantial question of law or the public interest, they add other considerations, referred to in the lead judgment, and the distinction between the threshold for regular leave and special leave ought to be noted. It would thus appear that the effective threshold for special leave is higher than that for regular leave. Another reason why the distinction between the two leaves is relevant is the fact that the Constitution has not made provision for a repeat application for regular leave to be made to the Supreme Court where the Court of Appeal refuses leave under article 131(1)(b). In the case of applications for leave to appeal from the Judicial Committee of the National House of Chiefs, clause (4) of article 131 explicitly confers concurrent jurisdiction with the Court of Appeal on the Supreme Court. This has not been done in respect of regular leave to appeal under article 131(1)(b) where only the Court of Appeal is mentioned. Clause (4) of article 131 is as follows; An appeal from a decision of the Judicial Committee of the National House of Chiefs shall lie to the Supreme Court with the leave of the Judicial Committee or the Supreme Court. What happens in practice is that where the Court of Appeal refuses regular leave to appeal, aggrieved persons bring applications for leave under clause (2) just as is the case where aggrieved persons are unable to come under clause (1)(a) of article 131. These ‘repeat’ applications or first instance regular leave applications, though they are made under article 131(2) of the Constitution, they do not strictly speaking pray to the special leave jurisdiction of the Supreme Court. In the circumstances, the Supreme Court ought Page 24 of 41 to take into account the differences in the required threshold. This is necessary in order not to place a higher burden on an applicant whose application for leave is in reality for regular leave and not special leave in the strict sense anticipated by the Constitution. So far, it appears to be the case that one set of judicial guidelines, those for special leave properly so called, is applied in all cases invoking clause (2) of article 131 but it ought not to be so in my considered opinion. It is my hope that when the opportunity affords itself for these rules to be revised the issues I have raised above would be addressed. (SGD.) G. PWAMANG (JUSTICE OF THE SUPREME COURT) DISSENTING OPINION KULENDI, JSC: INTRODUCTION. 1. I have had the privilege of reading beforehand, the decision of my learned brothers in the majority and although I am inclined to agree with them on the legal distinction of our special leave jurisdiction in Article 131(2) of the Constitution as opposed to our discretion to grant leave by way of repeat applications for leave pursuant to Article 131 (1)(b), I am unable to agree with my venerable brethren on the weightier matter of their reasoning and conclusion that the circumstances of this application and the grounds urged by the Applicant adequately motivates and warrants the exercise of the very special jurisdiction of this Court under Article 131(2) in favor of the Applicant. Page 25 of 41 BACKGROUND 2. To contextualize this dissent, I wish to reiterate, for emphasis, some salient factual matters upon which the applicant mounted the present application. The Applicant seeks special leave to appeal to the Supreme Court against the judgment of the Court of Appeal dated 30th March 2023. The suit was originally commenced at the Circuit Court, Tema and therefore the Applicant has no right of appeal to the Supreme Court, except with leave. 3. The Applicant initially lodged an Appeal to this Court as of right, without leave on 12th May, 2023. Whilst the Notice of Appeal filed as of right was pending, the Applicant filed an application for special leave to appeal in this Court. When the application for special leave came up for hearing, on 29th November, 2023, the Applicant had to withdraw this application because his Notice of Appeal filed as of right, was still pending. Subsequently, on 27th February 2024, after more than nine months of the filing of the said Notice of Appeal, the Applicant then filed a Notice of Withdrawal of his Notice of Appeal. Furthermore, on 16th April, 2024, another two months after the withdrawal of his Notice of Appeal, the Applicant filed the instant Application for Special Leave. The present application was filed after more than one year from the date of the judgment sought to be appealed. In aid of this application, the Applicant deposes to a 16 paragraph affidavit and attaches his proposed Notice of Appeal. 4. The gravamen of the Applicant’s case is that he will suffer irreversibly should this Court refuse to grant him special leave to appeal. The Applicant further contends Page 26 of 41 that the grounds canvassed in the proposed Notice of Appeal raise substantial questions of law to be determined by this Court. 5. For the avoidance of doubt, the proposed Grounds of Appeal attached as Exhibit D, to the Applicants affidavit in support are as follows: a. That the judgment of the Court of Appeal was against the weight of evidence, save for the affirmation of the findings made by the trial court about the credibility of the 2nd and 3rd Respondents b. That the Court of Appeal failed to consider the 1st Respondent’s failure to prove that he was a bona fide purchaser without notice and same occasioned a miscarriage of justice c. That the Court of Appeal’s finding that the Respondents did not engage in fraud was against the weight of evidence on record d. That the Court of Appeal erred in law and in fact when it held that none of the exceptions provided under section 3 of the conveyancing act 1993 re-enacted under section 36 of the land act, 2020, (Act 1036) was applicable to the case when the evidence on record supported an application of rules relating to fraud, unjust enrichment and constructive trust e. That in light of the foregoing, the Court of Appeal failed to acknowledge that a determination of the case in the Respondent’s favour amounts to unjust enrichment by the Respondents. PARTICULARS OF ERROR OF LAW 1. Failing to note that upon a true and proper construction of section 3(2) of the conveyancing act 1973 section 1 and 2 of conveyancing Act 1973 are subject to the rules of equity including the rules relating to fraud and unjust enrichment. Page 27 of 41 2. The court of Appeal ought to have noted that when there is a case of unjust enrichment justifying a constructive trust, the conveyance remains enforceable by virtue of section 3 of the conveyancing act 1973 re-enacted under section 26 of the land act 2020 (Act 1036) irrespective of the absence of evidence in writing of the conveyance. 6. The Respondent is opposed to the Application for special leave per an affidavit in opposition. The thrust of the opposition is that the filing of a Notice of Withdrawal of an Appeal does not amount to a withdrawal of the appeal and therefore that the Applicant’s original notice of Appeal filed as of right is still pending before this Court. Further, the Respondent contends that the appropriate procedure was for the Applicant to have sought leave of the Court of Appeal to appeal to this Court, within fourteen days after the delivery of the judgment intended to be appealed pursuant to Article 131(1)(b) of the Constitution. The Respondent concludes that not having filed the application for leave within fourteen days of the date of delivery of judgment, 30th September, 2023, the Applicant had lost her opportunity to Appeal. LAW ON SPECIAL LEAVE. 7. Though the conditions and guidelines for the grant of special leave have been enunciated by this Court in several cases, the case of Dolphyne (No.2) v. Speedline Stevedoring Co. Ltd. (1996-97) SC. GLR 373, may be described as a locus classicus in this regard. In this case, the Court per Hayfron Charles Benjamin JSC. at page 374 held as follows: Page 28 of 41 "The provision in Article 131(2) of the 1992 Constitution must govern the provisions of Article 131(1)(a) and (b). The word "Notwithstanding in Article 131(2) meant that without being affected by the provisions of Article 131(1), the Supreme Court might entertain an application for special leave to appeal in respect of appeals from any decision or judgment of the Court of Appeal and no other court. Thus, the Supreme Court might in appropriate cases ignore the provision of Article 131(1) and grant special leave to appeal bearing in mind the facts of each case and need to prevent a failure of justice . . .” 8. The Court further proceeded to adopt the following threshold laid down by Scott J in the case of Nyimoh v. Dadzie [1962] 1 GLR 327, for consideration in evaluating applications for special leave: "The principles to be applied as guides - on which the Supreme Court might determine whether to grant leave to appeal or not were: (a) where there was a prima facie error on the face of the record: or (b) a general principle of law had arisen for the first time or (c) a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public.” 9. The above criteria may not be applied in a strict sense where an applicant is seeking leave pursuant to article 131(b) of the Constitution as against the invocation of our special leave jurisdiction under article 131(2). Thus, for a successful invocation of our special leave jurisdiction, an applicant must do more than merely raise issues with the judgment complained of by demonstrating that if special leave to appeal were not granted, it would occasion a failure and/or Page 29 of 41 defeat of the ends of justice. This is the central compelling or cardinal reason that would justify the exercise of the special discretion of this Court to grant special leave to appeal under Article 131(2) of the Constitution. 10. Similarly, in the case of Joseph Kotey v. Peter Kofi Koletey [8/11/2000] CM NO. 2/2000, this Court per Bamford Addo JSC opined thus: “The special leave referred to by Article 131(2) and Rule 7(4) C.I. 16 is very special indeed and it is also unfettered by any rules or law since the grant of leave was left entirely at the discretion of the Supreme Court. This leave is under S.4 (5) of the Courts Act 1993 (Act 459) not subject to any condition of Appeal in the rules of Court C.I. 16. It is a special favour which is given to litigants who have good and valid appeals to enable them to appeal even though they are under the rules out of time within which to appeal so as to prevent a failure of justice. She proceeded thus: “… an application for special leave under Rule 7(4) can be brought as I said depends on the discretion of the Supreme Court, and the Court must also be satisfied that the case involves a substantial question of law or is in the public interest. I hold however, the view that the court's discretion must be judicially and reasonably exercised considering such other matters as public policy, and other principles concerning the necessity for finality in litigation as well as the need for prevention of delay in the administration of justice. Bearing in mind that inordinate delay in pursuing an appeal could adversely affect the acquired rights of other parties with consequent injustice to them” Atuguba JSC in this same case opined thus: “although an application for normal leave must show some merits in the intended appeal, an application for special leave must do Page 30 of 41 more than that; it must also give good and convincing reasons why the application is special”. 11. I daresay that on the totality of the authorities, an Applicant for special leave under Article 131(2) must meet the threshold of normal leave under Article 131(1)(b) plus more to motivate a judicious and reasonable exercise of the discretion of this Court. APPLICATION OF THE LAW TO THE FACTS: Does the Applicant demonstrate a prima facie error on the face of the record? 11. As I indicated from the beginning, this application is anchored on a 16 paragraphed affidavit wherein the Applicant deposes as follows: “ 1. Monica Odehe of House Number H/NO RP/0158/12, Community 12, Tema in the Greater Accra Region of the Republic of Ghana, do make an oath and say as follows: 1. That I am the Applicant herein and Deponent hereto. 2. That the contents of this affidavit, unless otherwise stated are matters within my personal knowledge, information, and belief. 3. That at the hearing of this application, Counsel shall seek leave of this Honourable Court to refer to all processes filed in this suit as if same were reproduced in extenso in this affidavit and sworn to on oath. 4. That on the 30th day of March, 2023, the Court of Appeal with the Coram: Her Ladyship Justice Welbourne (Mrs) (Presiding), His Lordship Baffour and Her Page 31 of 41 Ladyship Prof. Anku-Tsede (Mrs) entered Judgment in favour of the Defendants/Appellants/Respondents (hereinafter referred to as "the Respondents") against me. Attached and marked as Exhibit A is a copy of the said judgment. 5. That dissatisfied with the Judgment, I caused a Notice of Appeal to be filed at this Honourable Court to initiate an appeal process against the judgment described herein. Attached and marked as Exhibit B is a copy of the said Notice of Appeal with its attendant grounds for appeal. 6. That the instant action commenced at the Circuit Court, Tema. 7. That acting out of extreme urgency, the notice of appeal (Exhibit B) was mistakenly filed without seeking the prior leave of the Court of Appeal. 8. That given the circumstances, I subsequently caused a motion for special leave to appeal to be filed at this Honourable Court. The motion was withdrawn on the 29th November, 2023 because Exhibit B was still pending at the time the motion was heard. 9. That I have since taken steps to withdraw Exhibit B. Attached hereto and marked Exhibit C is a copy of the notice of withdrawal. 10. That I intend to pursue the appeal. Attached and marked as Exhibit D is a copy of my proposed notice of appeal. 11. That Exhibit D shows that there are substantial questions of law to be determined by this Honourable Court. Page 32 of 41 12. That the trial court made a finding of fraud against the Defendants and I am informed by counsel and verily believe same to be true that the Respondents ought not be allowed to benefit from their fraud. 13. That further, the trial court found that the and 3rd Respondents were liars and same was not disturbed by the Court of Appeal. 14. That I am informed by counsel and verily believe same to be true that per the circumstances of the instant case, the ends of justice would be better met if I am allowed to pursue the appeal. 15. That I would suffer irreversibly under the circumstances if leave is not granted. 16. That I am informed by counsel and verily believe same to be true that this is a proper case where this Honourable Court in the exercise of its jurisdiction under article 131 (2) of the 1992 Constitution ought to grant this leave. WHEREFORE, I depose to this affidavit in support. 12. I have laboriously evaluated every single paragraph and line of this affidavit in support against the settled threshold for a judicious and reasonable exercise of the discretion of this Court under Article 131(2) and I must say without fear of equivocation, that the Applicant does not even allege, that there is a prima facie error on the face of the record, let alone, attempt to demonstrate or prove same. Page 33 of 41 13. Similarly, I have thoroughly combed the affidavit in support of this application, and find no trace of a contention or allegation by the Applicant that a general principle of law has arisen for the first time to warrant special leave of this Court. 14. In the same vein, I have struggled to find, even a mere allegation or contention that a decision by the Supreme Court on the point sought to be appealed against, would be advantageous to the public. The fact that this application is bereft of merit is similarly borne out by the proposed grounds of Appeal which I have painstakingly set out in paragraph 5 of this dissent. Nowhere, in this grounds of Appeal does the Applicant allege or contend that that is a prima facie error on the face of the record. An allegation that the Court of Appeal erred in law and in fact when it held or reached a certain conclusion about sections of the Land Act and or that the Court of Appeal wrongly construed sections of the Conveyancing Act are far cries from an allegation or contention that of a prima facie error on the face of the record. 15. Needless to say that this must be the reason why there is no allegation or contention in the affidavit in support that a resolution of this prima facie error on the face of the record will address some general principle of law which has arisen for the first time and that the resolution of such will be advantageous to the public. 16. It is therefore my considered opinion that in this present application, the Applicant has failed to allege, let alone demonstrate satisfactorily that the intended appeal borders on resolving: a prima facie error on the face of the record or a general principle of law that has arisen for the first time or that a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public. Page 34 of 41 17. In fact, there is nothing special, urged on us by the Applicant save a general critique of the judgment of the Court of Appeal in the proposed grounds of Appeal. A mere critique of a judgment of the court of appeal, without more, does not amount to a demonstration of a prima facie error on the face of the record. 18. Similarly, the contentions in paragraphs 14 and 15 of the affidavit in support that the Applicant is informed by his counsel and verily believe same to be true that per the circumstances of the instant case, the ends of justice would be better met if he is allowed to pursue the appeal is a far cry from an allegation and more so a demonstration that the ends of justice will be defeated if leave were not granted. 19. Further, the contention, specifically in paragraph 15 of the affidavit in support that the Applicant would suffer irreversibly if leave is not granted does not amount to a failure of justice. Indeed, every judgment, decision or order of a court occasions a losing party irreversible loss one way or the other in the interest of justice. Consequently, an irreversible adverse effect of a judgment, per se, does not always amount to a failure of the ends of justice as such an outcome may actually amount to upholding the ends of justice. 20. Additionally, I have combed the entire record before us including the proposed grounds of appeal (Exhibit D) and even, for the avoidance of doubt, the withdrawn Notice of Appeal (Exhibit B) and carefully considered the submissions by Counsel, and find no allegation of inconsistency of ambivalence in the position of this Court regarding the admissibility of unstamped documents. I am therefore, with due deference and respect, unable to find, let alone agree with my venerable brothers in the majority, that the grant of this application would enable Page 35 of 41 this Court address a perennial disagreement by providing more clarity on the true position of the law on the admissibility of unstamped or insufficiently stamped documents. 21. It is pertinent to note, as a preliminary matter, that the public interest arguments being advanced by my learned colleagues in the majority, particularly to establish the purported need for this Court to grant the reliefs sought, are entirely absent from the affidavit in support of the Application as well as the proposed grounds of Appeal. Significantly, nowhere in the Applicant’s 16 paragraphed affidavit in support or statement of case, is there any reference to these public interest considerations, let alone an attempt to articulate them as a basis for invoking this Court's jurisdiction. These arguments, it would seem, have been introduced ex post facto in a manner that undermines the procedural and substantive integrity of the Applicant’s case. 22. I am of the considered opinion that it is an improper exercise of our jurisdiction and for that matter any Court, especially under Article 131(2), to suo motu substitute the case of an Applicant in order to justify a judicious and reasonable exercise of our discretion in his favor. I am fortified in this view by the cases of Dam vrs. Addo (1962) 2 GLR, 200, SC; Bisi v. Tabiri alias Asare [1984-86] 2 GLR 282, CA.; Duagbor & ors v. Akyea-Djamson [1984-86] 1 GLR 697, Tackie v. Lamptey [2001-2002] 2 GLR 186; Memuna Amoudi v. Kofi Antwi, Part 3, [2006] MLRG, 183]. 23. In any event, any real or perceived perennial disagreement regarding the law on the admissibility of unstamped and insufficiently stamped documents during trials was resolved by this Court in its judgment dated 22nd March, 2023 in Civil Page 36 of 41 Appeal No. J4/80/2022 entitled Nii Aflah v Benjamin Kwaku Boateng which I had the privilege of authoring. In this case, this Court resolved the “perennial disagreement” in preference to the ratio in Lizori and Woodhouse line of cases over the Antie & Adjuwuah v. Ogbo position. The Court further took pains to provide guidelines to Trial Courts on the proper procedure for the admission of unstamped or improperly stamped documents into evidence. 24. In a subsequent judgment dated 19th July, 2023 in Civil Appeal No. J4/28/2023 entitled Francis Appiah Mensah v Gifty Anane Wereko, this Court per Koomson JSC considered the true position of the law on the issue of the admissibility of unstamped or insufficiently stamped documents during trials as opined as follows: “It is to be noted that, the Court, in suit No. J4/80/2022 entitled NII AFLAH v BENJAMIN KWAKU BOATENG dated 22nd March 2023, in a unanimous decision, put the issue of the admissibility of unstamped documents to rest. The Court, in its quest to bring clarity and finality to the law by dealing a death blow to the inconsistencies in cases like ANTIE & ADJUWUAH v OGBO [2005-2006] SCGLR 494; LIZORI LTD v BOYE & SCHOOL OF DOMESTIC SCIENCE and CATERING [2013-2014] 2 SCGLR 889; WOODHOUSE LTD v AIRTEL GHANA LTD [2017-2018] held, per Kulendi JSC that: "...we are of the considered opinion that the law on the admissibility or otherwise of an unstamped documents or instruments as enunciated in the cases of Lizori and Woodhouse are more accurate precedents of the proper construction of Section 32 of the Stamp Duty Act, 2005 (Act 689)." Page 37 of 41 25. In view of the foregoing, and in particular, this Court’s consistent position on the admissibility of unstamped documents during trial, even if it had been the Applicant’s case that a special leave be granted him to appeal the decision of the court of appeal because the said appeal would resolve issues on the admissibility of unstamped documents, such an argument ought not hold sway on this Court, let alone rise to the gravity of justifying the exercise of this Court’s special jurisdiction to grant special leave where the ends of justice are imperiled. as there is no issue to resolve on the admissibility of unstamped documents. 26. In my humble and respectful opinion, the Court of Appeal is entitled to be critical and indeed to thoroughly evaluate the reasoning of this Court in any matter and to the extent that it does not depart from the law as enunciated by this Court, it commits no sin and consequently occasions no error that can ground or justify the grant of an application for leave to appeal the decision in which the Court of Appeal espouses a critical view of this Court's reasoning, to decide otherwise will amount to placing an embargo on judicial reasoning, the essence of the work of every Court. 27. It is for these reasons that whilst I concur in the conclusion on the scope of the jurisdiction of this Court under Article 131(2), I am helplessly unable to agree that this application has any merit whatsoever to warrant a judicious and reasonable exercise of our discretion in favor of the Applicant. Accordingly, this application is unmeritorious and ought to fail, and I so hold. (SGD.) E. YONNY KULENDI Page 38 of 41 (JUSTICE OF THE SUPREME COURT) DISSENTING OPINION DARKO ASARE, JSC: I have had the advantage of reading beforehand the judgment of the majority which has allowed the application for special leave to appeal against a judgment of the Court of Appeal to this Court. Having however given it the best consideration I can, I find myself unable, to concur in it. On the contrary, I find the dissenting views of my brother Kulendi JSC to be more compelling and persuasive. I am in complete accord with the well-articulated views of Kulendi JSC, which convincingly demonstrates with clarity that the Applicant's materials and processes are fundamentally deficient and fail to meet the threshold necessary for the grant of special leave under Article 131(2) of the Constitution. My reading of the principles exemplified in such authorities as Dolphyne (No 2) v Speedline Stevedooring Co Ltd (No 2) [1996 -97] SCGLR 373 and Owusu and Others v Addo and Anr. [2015-2016] 2 SCGLR 1479, convinces me that in determining whether to grant special leave, this Court is strictly confined to considering the affidavit and other materials submitted by the Applicant, and may not, on its own motion, seek out or rely on additional grounds or justifications not pleaded by the Applicant. Seen in this light therefore, I am not persuaded that the threshold for triggering Article 131(2) is discharged when it is this Court, rather than the Applicant herself, which sua sponte, introduces the existence of emerging legal issues of public concern in any Page 39 of 41 particular case, without affording all parties prior notice and opportunity to contest the matter on that ground, as has happened in this instant application. It needs reminding that the legislative intent underlying the decision making processes of this Court as reflected by such provisions as Rule 6(8) of CI 16 is to be slow to rest decisions on matters in respect of which the Parties have not been given any prior opportunity to be heard or respond, unless the point raised is unanswerable, which I do not find to be so in this case. See Asamoah & Another v. Offei [2018-2019] 1 GLR 655, @ 662, and Ankumah v City Investments Co. Ltd [2007-2008] 2 SCGLR 1064 @ 1065. My brother Kulendi JSC has comprehensively illustrated that the application before us is woefully deficient in the requisite materials necessary to invoke our special jurisdiction under Article 131(2) of the Constitution, and I do not propose to rehearse those arguments, save to emphasize that entertaining this application would be inimical to the underlying policy considerations for the exercise of this Court’s jurisdiction to grant special leave to appeal. As has been reiterated by this Court in Dolphyne (No 2) v Speedline Stevedooring[sic] Co Ltd (No 2) (supra) and Owusu and Others v Addo and Anr. (supra) the constitutional requirement for special leave is intended to sieve appeals that do not lie as of right so as to ensure that only those that meet the high threshold set by the law are admitted for determination. To that extent, I endorse the persuasive view that this special leave jurisdiction does not provide a platform for re-agitating the validity of legal issues that have already been conclusively determined by this Court's precedents. In my considered opinion, the matters relied on by the applicant do not meet the conditions for special leave in Article 131(2) of the Constitution. Page 40 of 41 For the above reasons I conclude that the instant application is not worthy of this Court’s consideration as our special leave jurisdiction has not been properly invoked. The application fails and is hereby dismissed. (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) COUNSEL EDWIN KUSI-APPIAH ESQ. FOR THE PLAINTIFF/RESPONDENT/APPLICANT WITH FRED SETH THOMAS MIREKU JNR. & PAULINA OFFEIBEA ANSAH. ERIC ASUMAN-ADU ESQ. FOR THE DEFENDANTS/APPELLANTS/RESPONDENTS WITH SAMUEL ADUSA Page 41 of 41