"A review is not an appeal" - Justice Francois

For all the furore and hullabaloo caused, it appears that there may be no basis for the Supreme Court to review its decision in the case of Tsatsu Tsikata versus Attorney-General in which the Supreme Court decided by a five-four majority that the Fast Track High Courts established by Chief Justice Edward Wiredu were unconstitutional and illegal.

Ghana Palaver research has uncovered a case in which the Supreme Court considered in-depth the circumstances under which an application for a review of a case may be entertained by the Supreme Court. The case is Odonkor and Others versus Amartei (No. 2) reported in the Ghana Bar Law Reports, cited as (1992-93) 2 GBR at 653.

In that case, a seven-member Supreme Court panel made up of Justices Francois, Wuaku, Amua-Sakyi, Aikins, Wiredu, Bamford-Addo and Hayfron-Benjamin, held that a review was not generally an appropriate forum for revisiting a judgement either to elaborate on statements made or to criticise.

The only permissible areas of discussion related to exceptional circumstances and interests resulting in grave miscarriage of justice and the need for the reversal of the judgement in the interest of justice.

The court would not review its decision where it was sought to re-open the case and prosecute an appeal in the guise of a review, or repeat arguments already offered at the bearing of the appeal, or raise fresh matters that could have been raised in the appeal, or to interpret previous decisions of the court with a view to breaking new grounds.

In that case, the applicants (Odonkor and Others) who had lost in succession in the High Court, Court of Appeal, and the Supreme Court applied for a review of the decision of the Supreme Court. His Lordships by a unanimous 7-0 decision dismissed the application.

In a very revealing judgement, Chief Justice Edward Wiredu, then a Justice of the Supreme Court only, stated at page 666 that “a careful examination of the law…reveals a cardinal principle of preserving the effect of the solemn judgement thus pronounced save in exceptional circumstances resulting in grave injustice. This principle recognises the finality of the judgement thus declared.

Francois JSC, however, gave a judgement which is most opposite to the intended review of the Tsatsu Tsikata Case, especially in relation to the possibility of new judges being added to the original judges who heard the case.

He said at page 657: “The provision in the Constitution allowing for an enlarged Bench in reviews does not transform the court into an appellate Bench. A review to address a patent or evident error is an application to the court to correct its own error. Obviously then, if an enhanced panel adds its weight to the minority to convert a previous minority judgement to one of majority, with judges not shifting their stance or their view of the law, for instance, the result becomes unacceptable because the exercise ceases to be one of a court correcting its own error, but becomes an appeal with a differently constituted panel sitting in judgement over its peers and postulating better knowledge of the law.

In a related development, Ghana Palaver has also discovered that there is a Practice Direction from the Supreme Court published in the 1987-88, Volume 2 edition of the Ghana Law Reports, at page 274 in which the learned judges have categorically stated that: “The only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review.”