Review decision of three-member bench is final – Supreme Court

The Supreme Court of Ghana has held that a decision made by a three-member panel under Article 134(b) of the 1992 Constitution cannot be reviewed under Article 133(1).

Justice Gabriel Pwamang, writing for the majority bench, explained that the review frameworks under Articles 133 and 134(b) are "plainly different and ought not to be conflated."

As a result, once an interlocutory application has been determined by a single Justice and reviewed by a three-member panel under Article 134(b), the party is barred from invoking Article 133 to seek a further review by a panel of at least seven Justices.

Background

The case titled NUMO AKWETEY AWULEY(DECEASED) substituted by JOSEPH LARTEY VS NENE KWAKU DARPOH 1 SUBSTITUTED BY CHARLES MARTEY KWASHIE, emanates from a dispute that began at the High Court in Tema, where the respondent sued for title to land located at Miotso in the Ningo-Prampram District of the Greater Accra Region. After a full trial, the High Court delivered judgment for the Respondent.

The applicant appealed to the Court of Appeal, but the appeal was dismissed. He then filed a notice of appeal to the Supreme Court. The record was settled, and the applicant was served with Civil Form 6, but failed to file a statement of case within the statutory time.

On January 28, 2025, a five-member panel of the Supreme Court struck out the appeal for non-compliance. The applicant later applied to have the appeal relisted and sought an extension of time to file its statement of case. 

That application was heard by a single Justice, who dismissed it on the ground that the applicant had not shown sufficient basis for the Court to exercise its discretion.

He then invoked Article 134(b) and sought a review by a three-member panel of the Supreme Court. The three-member panel dismissed the application, holding that the applicant had not provided a reasonable basis to disturb the decision of the single justice.

The applicant filed another application, this time invoking the Supreme Court’s review jurisdiction under Article 133 and rules 54, 55, and 56 of C.I. 16 (as amended), arguing that the three-member panel’s decision had unfairly punished an innocent litigant for counsel’s default, causing a substantial miscarriage of justice.

The respondent, however, raised a jurisdictional issue with respect to the action.

Thus, in a 6–1 decision, the Supreme Court declined jurisdiction, thereby dismissing the action, with Justice Kweku Ackaah-Boafo dissenting.

The majority, led by Justice Pwamang and joined by Justices Gaewu, Dzamefe, Mensah, Bartels-Kodwo, and Ameleboba, held that accepting the applicant’s interpretation would defeat the purpose of Article 134, prolong interlocutory proceedings, and make matters handled by a single Justice more expensive and drawn out than the Constitution intended.

The Court further reasoned that allowing Article 134(b) decisions to be reopened under Article 133 would encourage endless challenges and undermine the principle that litigation must come to an end.

Dissenting opinion

In his dissent, Justice Ackaah-Boafo took the view that the Court should not be rendered powerless to correct an error simply because it was made by a three-member panel. 

His Lordship indicated that Article 134 contains no provision that expressly ousts or denies the Supreme Court's power to review a decision of a panel of three Justices pursuant to Article 133.

He argued that a proper reading of Article 133 supports the conclusion that a decision of a three-member panel falls within the phrase “any decision of the Supreme Court” and may therefore be reviewed.

Key constitutional provisions

Article 133 – Power of the Supreme Court to review its decisions

The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by the Rules of Court.

When reviewing its decisions under this article, the Supreme Court shall be constituted by not less than seven justices.

Article 134 – Powers of a single Justice of the Supreme Court

A single Justice of the Supreme Court may exercise a power vested in the Supreme Court not involving the decision of the cause or matter before the Supreme Court, except that:
(a) In criminal matters, where that Justice refuses or grants an application in the exercise of any such power, a person affected is entitled to have the application determined by the Supreme Court constituted by three Justices.
(b) In civil matters, any order, direction, or decision made or given under this article may be varied, discharged, or reversed by the Supreme Court constituted by three Justices.

Read the full case on Dennislaw.