APPIAH VRS YUMIN & ANOR (J7/14/2024) [2024] GHASC 52 (30 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA- A.D. 2024 CORAM: BAFFOE-BONNIE JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC KULENDI JSC ACKAH-YENSU (MS.) JSC GAEWU JSC KWOFIE JSC ADJEI-FRIMPONG JSC CIVIL MOTION NO. J7/14/2024 30TH OCTOBER, 2024 BRIGHT ASANTE APPIAH ………… PLAINTIFF/RESPONDENT/ RESPONDENT/RESPONDENT VRS 1. HUANG YUMIN …………. 1ST DEFENDANT/APPELLANT/APPELLANT/ 2. SUNLIGHT ENGINEERING LIMITED …….. 2ND DEFENDANT/APPELLANT/ APPELLANT/APPLICANT RULING KULENDI, JSC: INTRODUCTION: Page 1 of 14 1. On 30th October, 2024, this Court unanimously dismissed the instant application filed by the 2nd Defendant/Appellant/Appellant/Applicant (hereinafter referred to as “the Applicant”), invoking the review jurisdiction of this Court and reserved our reasons for later, which we now proceed to deliver. 2. The Applicant, by an application filed on the 17th of May, 2024, invited us to review the judgment of the ordinary bench dated 17th April, 2024. In the said judgment, the ordinary bench of this Court affirmed the decision of the Court of Appeal dated 19th October, 2022, upholding an award of special and general damages, as varied, for injuries sustained by the Plaintiff/Respondent/Respondent/Respondent (hereinafter called “the Respondent”) whilst running to avoid attack of the ferocious dogs that escaped from the business premises of the Applicant. BACKGROUND 3. The review application is premised on one main grievance, which is, that the ordinary bench inadvertently omitted to pronounce or make a determination of the Applicant’s Ground (iii), which said ground, it is alleged, was distinctively argued in the Applicant’s statement of case submitted to the ordinary bench. The said ground is as follows: “The Court of Appeal erred in holding that the 2nd Defendant was liable in negligence for the injury caused to the Plaintiff when the 2nd Defendant had no responsibility over the dogs and was not the owner or keeper of the dogs.” 4. To better appreciate the current legal conundrum, we shall state briefly, the facts that culminated into the institution of the court proceedings as follows: 5. The Respondent’s place of work is situate on the same street as the premises of the Applicant which is a Limited Liability Company. On Sunday, 27th March, 2016, sometime past noon, Respondent was returning home from work on foot using the Page 2 of 14 street linking his place of work to the main road as well as the Applicant’s premises which is situate along this same street. Respondent upon reaching the gate of the Applicant saw a vehicle being driven by 1st Defendant who is in the employ of the Applicant. The vehicle pulled up at the gate and tooted its horn. The gate was opened and shortly thereafter, two large foreign bred guard dogs emerged from the premises and on seeing the Respondent, the dogs charged menacingly towards him. 6. Respondent being apprehensive of the impending attack from the dogs, started to run for safety with the dogs chasing after him. Respondent while running from the dogs fell heavily, broke his left arm, suffered injury and had to undergo surgery at the 37 Military Hospital on referral from the Tema General Hospital. 7. It is in light of the above that the Respondent initiated an action in the High Court on the 29th day of June, 2017 and obtained judgment after trial against the Applicant and 1st Defendant. The Applicant’s appeal against this judgment to the Court of Appeal and subsequently to this Court, both failed and has resulted in the present application for a review of the judgment of the Ordinary bench. 8. A synopsis of the sole ground upon which the review is sought is that, the decision of the ordinary bench did not pronounce on or make any decision on Ground (iii) as set out in the notice of appeal which ground was argued by the Applicant in the Statement of Case filed on 14th August, 2023. 9. It was argued that by virtue of this neglect or inadvertence by the ordinary bench to consider, pronounce or make any determination on this distinct ground, the ordinary bench treated the 1st Defendant and Applicant as owners and keepers of the dogs with coterminous interests and liabilities and thereby making the Applicant jointly and severally liable with the 1st Defendant for the injury sustained by the Respondent. The Applicant argues that tolerating dogs they did not own on its premises neither occasions a liability nor make them a keeper of the dogs and further, that there is no Page 3 of 14 duty of care incumbent on an owner of a premise, the breach of which would render them liable, for injuries sustained by reason of the violent actions of dogs which they do not own and merely because the dogs escaped from their premises. APPLICABLE LAW: 10. Our review jurisdiction derives, specifically, from Article 133(1) of the Constitution which mandates this Court to review any decision made or given by us on such grounds and subject to such conditions as may be prescribed by rules of court. 11. Pursuant to Article 133 of the Constitution, Rule 54 of the Supreme Court Rules 1996, (C.I. 16) warrants a review of a decision of this Court, where there are exceptional circumstances which have resulted in miscarriage of justice; or the discovery of new and important matters or evidence which, after the exercise of due diligence, was not within an Applicant's knowledge or could not be produced by an Applicant at the time when the decision was given. 12. Historically, the first ground for review, requiring an Applicant to demonstrate exceptional circumstances which have occasioned a miscarriage of justice, resulted from the case of Kumnipah II v. Ayirebi [1987/88] 1 GLR 265 SC which led to a Practice Direction reported in [1987-88] 2 G.L.R. 274, S.C and which, with time, found expression as the said Rule 54 of the Supreme Court Rules 1996, (C.I. 16). 13. The intent of the Practice Direction that preceded Rule 54 was, according to the Court, to: “Clear any misunderstanding and prevent the process of review being abused and turned into another form of appeal.” 14. It is therefore worthy of note that it is not every error, mistake or slip in a judgment that warrants correction by way of review. An Applicant for review must demonstrate Page 4 of 14 that the error, mistake or slip is substantial and has occasioned a miscarriage of justice. Consequently, the review jurisdiction, as has been stated time without number, is not an avenue for Applicants to reopen and/or reargue a matter which the Court had conclusively determined. As has been variously put, a review is not to afford litigants another bite of the cherry. [See the cases of Bisi v. Kwayie [1987-88] 2 GRL 295 SC; Nasali v. Addy [1987-1988] 2 GLR 286; Mechanical Lloyd Assembly Plant Ltd v. Nartey [1987-88] 2 GLR 598; Republic v. Numapau And Others; Ex Parte Ameyaw II [1999-2000] 2 GLR 629; Arthur (No.2) v. Arthur (No.2) [2013-2014] 1 SCGLR 569] 15. Our review jurisdiction may only be successfully invoked in exceptional circumstances where the demands of justice make the exercise extremely necessary to avoid a failure of and/or a miscarriage of justice. Understandably, every litigant who has lost a case in Court is likely to complain of miscarriage of justice. However, without proof of any exceptional circumstances resulting in a miscarriage of justice, such complaints will not sufficiently ground a seizure of the review jurisdiction of this Court. For the law does not concern itself with every dissatisfaction with a judgment, decision or order of a Court, let alone trivial errors, mistakes or slips: “de minimis non curat lex”. 16. As has been eruditely reasoned, it is therefore only where there are demonstrable exceptional circumstances that the principle of “interest rei publicae ut sit finis litium” yields to the greater interests of justice. [See the case of Nasali v. Addy [1987-1988] 2 GLR 286 at 288] 17. Although what exactly constitutes exceptional circumstances has not been defined by the Rules, Statute or the Constitution, this Court, in the case of AFRANIE II v. QUARCOO AND ANOTHER [1992] 2 GLR 561 in Holding 2 found at page 563, found that exceptional circumstances exists where Page 5 of 14 (a) the circumstances were of a nature as to convince the court that the judgment should be reversed in the interest of justice and indicated clearly that there had been a miscarriage of justice; or (b) the demands of justice made the exercise extremely necessary to avoid irremediable harm to the applicant; or (c) a fundamental and basic error might have inadvertently been committed by the court resulting in a grave miscarriage of justice; or (d) a decision had been given per incuriam for failure to consider a statute or a binding case law or a fundamental principle of practice and procedure relevant to the decision and which would have resulted in a different decision; or (e) the applicant had sought for a specific relief which materially affected the appeal and had argued grounds in support but the appellate court had failed or neglected to make a decision on it. 18. Evidently, the threshold for invoking a favorable exercise of this Court's review jurisdiction is higher than that required in an appeal. 19. In a judgment of this court dated 17th January, 2024 in CIVIL MOTION NO. J7/21/2022 entitled MICHAEL ODAI LOMOTEY & ANOR V. KWOW RICHARDSON & 3 ORS, which I had the privilege of authoring, this Court had the following to say concerning the threshold of our review jurisdiction. “…the mere existence of ‘defects’ in the judgment would not ipso facto render the application for review successful, the applicant must prove that those defects rose to the level of exceptional circumstances, and that the judgment occasioned a miscarriage of justice. This requirement is conjunctive and not disjunctive. Therefore, even where an applicant could establish exceptional circumstances, he/she was still required to establish that a miscarriage of justice had been occasioned or would be occasioned, if this Page 6 of 14 Court did not intervene to rectify the misstep. Therefore, no matter how glaring the error alleged, where it is evident that the Court’s decision could validly be rested on other grounds in the case, or that the conclusion reached by the Court was in fact validated by other grounds which the Court duly considered, then the second threshold, of the miscarriage of justice, would not have been met, and hence a recourse to our review jurisdiction would not be justifiable.” 20. With the above in mind, we shall proceed to evaluate the case of the Applicant in this application. RESOLUTION 21. In this present suit, it is contended by the Applicant that there has been a miscarriage of justice occasioned by the failure of the Ordinary bench to address Applicant’s Ground (iii) of the appeal. 22. A reading of the judgment attached indeed reveals that the Ordinary bench did not address the individual grounds of appeal as set out per the Notice of Appeal. However, the Court distilled one main issue as germane and/or arising from the various grounds of appeal, the determination of which, in the opinion of the Court, fully resolved the entire appeal. 23. At page 6 of the judgment, this Court stated as follows: “The fundamental issues for determination in this case are whether or not the finding of the Court of Appeal and the trial High Court that the defendants were liable in negligence for the injury suffered by the plaintiff was justified and whether the plaintiff was entitled to damages arising from the injury he sustained.” Page 7 of 14 24. The above issue set out by the ordinary bench, subsumes the questions arising from the Applicant’s Ground (iii) as far as the factual findings of the Trial Court and Court of Appeal on the liability of the Applicant were concerned. 25. The choice of the Ordinary Bench to resolve the Appeal under this distilled and/or reformulated issue, that in the opinion of the Court, comprehensively addressed the substance of the Appeal in its entirety, is permitted by Rule 6 (7)(b) of C.I 16, which states that: “This Court shall not, in deciding the appeal, confine itself to the grounds set forth by the Appellant or be precluded from resting its decision on a ground not set forth by the Appellant.” 26. Quite apart from the above, we note that the said Ground (iii), which is the basis of this application, articulates both factual and legal questions. As such, if the Applicant was minded to have the Ground (iii) determined purely as a legal ground, they ought to have made sure that the said ground was compliant with Rule 6 (2)(f) of C.I. 16 in so far as the giving of particulars were concerned. 27. The rationale behind Rule 6(2)(f) of CI. 16 was expounded by this Court in Dahabieh v. Turquoi & Bros [2001 – 2002] SCGLR 498 when it held as follows: “The intention behind rule 6 of the Supreme Court Rules, 1996 (C. I. 16) is to narrow the issues on appeal and shorten the hearing by specifying the error made by the lower court or by disclosing whether or not a point at issue had been raised. By that way, both the court and counsel for the respondent would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidences with respect to questions of law, it is necessary that the respondent and his lawyers know well in advance what points of law are being raised so that they may prepare their case and marshal their authorities; whilst an indication that the point of Page 8 of 14 law was or was not raised in the court below may help the court resolve the issue faster. In the instant case, ground (1) of the grounds of appeal alleging that the judgment is wrong in law is in effect saying that there is an error of law in the judgment. If so, then rule 6 (2) required the Appellant to specify in the ground of appeal that particular complaint amounting to an error of law. Having failed to do so, ground (1) of the grounds of appeal is inadmissible”. 28. For this reason, the said Ground (iii) was, in any event, inadmissible to be considered by the ordinary bench in the first place and ought to have been struck out for non- compliance with the said Rule 6(2)(f). 29. Further, we are of the considered opinion that the Applicant’s submission in respect of the merits of the said Ground (iii) is also misconceived. The Applicant has argued that it is merely an employer of the 1st Defendant and that the guard dogs, though kept on the open premises of the Applicant company, were not owned by the Applicant and for that matter the Applicant cannot be liable for any damage that was caused by the dogs. 30. Significantly, it has been urged on this Court that their Lordships failure to make any specific pronouncement on Ground (iii) which bordered largely on the fact that the Applicant who was not owner of the dogs, by merely tolerating the 1st Defendant's dogs on its premises which served as the residence of the 1st Defendant, could not constitute the Applicant into a keeper of the dogs in law to place liability on the Applicant. 31. The Applicant further contends that this omission by the Ordinary Bench to pronounce on this critical matter, among others, occasioned a patent fundamental error on the facts and the law, whereby the Court treated the Applicant as owner and keeper of the dogs. It has also been submitted that if the Ordinary bench had considered the distinct Ground (iii) and all the material and decisive issues raised above, it would not have Page 9 of 14 come to the conclusion they reached as regards to the Applicant being negligent in law. 32. Rather, the Applicant argues that, it would have led them to the irresistible conclusion that the Applicant was neither owner nor keeper of the dogs and therefore had no legal duty towards the Respondent even though they owned the premises from which the dogs emerged. 33. In aid of these submissions, the Applicant relies on the case of Knott v. London County Council (1934) I KB and argues that, “It cannot be lost on this court that from the case of Knot supra, which was heavily relied on by the court, liability depended on whether the person was owner or keeper of the dogs”. 34. In our opinion, whilst it is true that liability in scienter actions may ordinarily rest on the owner or keeper of the animal, there are some exceptions pertaining to owners of premises who may deny to be owners of keepers of the animal in question. The test therefore ought to be a question of control and benefit. These exceptions, and there may be others, are well articulated in the Knotts case (supra). One of such exceptions is where there is imputed knowledge to an owner of the animal but who was not the keeper of the said animal. In such a case, the owner could still be liable for the actions of the animal, should the animal cause injury or harm to a third party. The other exception may be where the animals for instance are kept for the benefit of the owner of the premises, although not owned by him. 35. In this case, the evidence that was led at trial, and affirmed by both appellate Courts, was to the effect that these guard dogs were kept on the premises of the Applicant, for the benefit and protection of the Applicant. This is evident from the joint Statement of Page 10 of 14 Defence filed by the 1st Defendant and Applicant wherein they stated in paragraph 8 as follows: “Defendant vehemently denies Paragraph 8 of the statement of claim. In answer the defendant says the dogs never emerged out of the premises. It is the practice that on a Sunday which is not a working day, the dogs are left at the main gate of the 2nd defendant Company on that day and when 1st defendant got to the main gate of the 2nd defendant yard, the security man on duty opened the main gate the dogs run towards the 1st defendant vehicle which was then parked at the 2nd defendant gate." 36. The facts of this case are clearly distinguishable from that of the Knotts case, where it was alleged by the Defendants therein that the dog was being kept on the premises as a pet and without the knowledge of the Defendants therein. In that case, it was contended by the owner of the premises that the caretaker kept the said dog on the premises for his own private purpose for which reason the Defendants were not responsible in law in respect of the matters that were in dispute. Furthermore, there was also a handbook of the Defendant Council clearly stating that: “In the event of a dog being kept, the School Keeper will be held responsible for seeing that it is kept under proper control and it is not allowed to run lose in the playground”. 37. The opposite is true of this case. In this instant case, the guard dogs were kept on the open premises of the Applicant with their knowledge. In fact, per paragraph 8 of the pleadings, the Applicant admits as much when they say that it is their custom or practice to let loose the dogs to roam the entire premises during the day on weekends. Evidently, this unrestrained wandering around of the dogs in the Applicants premises served as a certain layer of protection for them, whether or not they had also procured the services of security men. This protection and benefit the Applicant enjoyed from these guard dogs, coupled with the control they exercised over the dogs squarely Page 11 of 14 situates this case under the exceptions articulated by the Knotts case (supra). See also the case of Stiles v. Cardiff Steam Navigation Co (1) 33 L.J (Q.B) 310. 38. By control, we refer to paragraph 8 of the Statement of Defence jointly filed by the Applicant and 1st Defendant where it can be inferred that the Applicant determined when the dogs would be let out at the main gate of the Applicant Company. By control, we again refer to the said paragraph 8 where the Applicant deposed jointly with the 1st Defendant that when the security man on duty opened the man gate, the dogs run towards 1st Defendant’s vehicle. At that time material, in whose control were the guard dogs? Was it the first Defendant who was returning from outside, or the Applicant, at whose main gate the dogs were by practice and custom stationed every Sunday, in the company and ostensibly under the oversight of the Applicant’s security man on duty. 39. In conclusion, it is our considered opinion that this application for review essentially amounts to a re-argument of the submissions considered by the Ordinary Bench. The authorities, as we have pointed out, frown upon exploiting the review jurisdiction of this Court as a means to reargue an appeal. Also, since Applicant allowed the guard dogs to be kept on their premises without objection and controlled where and when the dogs were to be stationed on the weekend, they cannot resile from the liability arising from the keeping of the said guard dogs, which for all intents and purposes were for their protection. 40. It is for the above reasons that we concluded that the Applicant had failed to meet the threshold to warrant the exercise of our review jurisdiction and consequently, that, the instant application must fail and same was accordingly dismissed with cost of GH¢ 10,000.00 against the Applicant and in favour of the Respondent. (SGD.) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) Page 12 of 14 (SGD.) P. BAFFOE-BONNIE (JUSTICE OF THE SUPREME COURT) (SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) (SGD.) H. KWOFIE (JUSTICE OF THE SUPREME COURT) (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) COUNSEL NANA ACKAH-WATSON JAINIE ESQ. FOR 2ND DEFENDANT/APPELLANT/ APPELLANT/APPLICANT WITH JAINIE AGOVI JAINIE AND THOMPSON ADJIABER. Page 13 of 14 KWAKU ADU MINTAH ESQ. FOR THE PLAINTIFF/RESPONDENT/RESPONDENT/ RESPONDENT WITH ABDUL HAKEEM SULEMANA. Page 14 of 14