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AMERICAN INTERNATIONAL UNDERWRITERS, INC., by and thru its Assistant Manager, S. B. MENSAH, I, Appellant/Petitioner, v. FARES IMPORT-EXPORT (FARESIMEX GENERAL MERCHANDISE), thru its Manager, M. FARES, Appellee/Respondent.

PETITION FOR RE-ARGUMENT

Heard: October 18, 1982. Decided: February 3, 1983.

  1. A petition for reargument is not intended to challenge the opinion and judgment of the Supreme Court on points of law and facts raised and already decided by the Court, simply because the petitioner is of the opinion that the Court is wrong in its conclusion on the law and facts.
  2. Reargument is intended to call the Court’s attention to the points of law and facts previously raised in the argument and which the Court inadvertently overlooked to pass upon.
  3. A motion or petition for reargument will be denied where the movant or petitioner has failed to establish that the adjudication in question was grounded upon oversight with respect to a material issue of law or fact.

 

In a petition for re-argument, petitioner contended that the Supreme Court inadvertently overlooked and omitted several issues of fact and law raised in appellant’s/petitioner’s bill of exceptions. Appellee/respondent contended that the Supreme Court need not consider every count in the bill of exceptions and that it is the Court’s prerogative to pass only on issues that it considers salient to the determination of the case. The Supreme Court denied the petition, and in doing so, held that a petition for re-argument is not intended to challenge the opinion and judgment of the Supreme Court on points of law and facts raised and already decided by the Court, simply because the petitioner is of the opinion that the Court is wrong in its conclusion on the law and facts.

Johnnie N. Lewis and J. Patrick Henry Findley appeared for appellant/petitioner. S. Raymond Horace appeared for appellee/ respondent.

MR. JUSTICE KOROMA delivered the opinion of the Court.

This case having been heard and decided during the March 1982 Term of this Court, the petitioner/appellant, within the time allowed by statute, filed an eight count petition for re-argument. In the introductory and concluding statements of each count, the petitioner averred that this Court in disposing of the issues of fact and law regarding; (1) the fraudulent verdict; (2) the dishonored check; and (3) that the motion to introduce newly discovered evidence, inadvertently overlooked and omitted several issues of fact and law raised in the appellant/ petitioner’s bill of exceptions and brief and omitted to consider and rely upon relevant laws cited by the appellant/petitioner in the motion to introduce newly discovered evidence. Appellant/ petitioner further contended that had the Court not overlooked, omitted and failed to apply the relevant laws controlling the case, the conclusion arrived at in the opinion delivered by this Court would have been different.

A general look at these averments could easily bring one to the hasty conclusion that the petitioner has factually and legally established its point to warrant the granting of the petition for re-argument. However, a judicious disposition of this petition which is intended not only to measure transparent justice to all, but also to maintain the dignity of this Court for the benefit of the society it serves, demands that we specifically look at these issues: (1) whether the Court is bound to look at an issue of law or fact from the same angle as the party raising it and to pass upon it in the same language, manner and intent; (2) whether the party raising a legal issue is properly clothed to decide the relevancy of such law to the case? Our answers to these questions lie squarely in the negative, as to answer in the positive would mean a manipulation of the Court by such party against the legitimate interest of its adversary.

Since the Court should always stand perpendicular between the two sides to a case, the functions of its office are performed and determined according to the exigency of the case and as the righteousness of the issues of fact and law demand. In the instant case, while it abundantly appears that this Court did pass upon the issue of the fraudulent verdict as raised by the appellant/ petitioner in its appeal before this Court, said petitioner is saying that the self same issue was not passed upon and disposed of as the petitioner would have desired. Recourse to the opinion of this Court shows that on pages five through ten, the Court lengthily dealt with the issue of the alleged fraudulent verdict, and concluded that the verdict upon which final judgment was made was legally genuine.

A petition for re-argument is not intended to challenge the opinion and judgment of the Supreme Court on points of law and facts raised and already decided by the Court, simply because the petitioner is of the opinion that the Court is wrong in its conclusion on the law and facts. Reargument is intended to call the Court’s attention to the points of law and facts previously raised in the argument and which the Court inadvertently overlooked to pass upon. In this case, the petitioner/ appellant’s counsel is asking us to permit re-argument on the same issues which he, by the very content and substance of his petition and motion for diminution of records, has openly admitted that this Court passed upon but in doing so, it relied on laws not relevant. A motion or petition for re-argument will be denied where the movant or petitioner has failed to establish that the adjudication in question was grounded upon an oversight with respect to a material issue of law or fact. Caranda v. Richards et al.[1961] LRSC 4; , 14 LLR 294 (1961). Counts 1, 3, 4, 6, 7 and 8 of the petition which raise and contain the issue as passed upon herein above, are not sustained.

The Court would be setting a very ugly precedent, detrimental to its dignity and repugnant to good society, if it permits parties to a suit before it to determine the relevancy of laws controlling the case. As the determination and interpretation of the law is for the Court, to permit a party to a case before the Court to determine the relevancy of the law would amount to a surrender of this most important office of the Court to the whims and notions of such party.

In count six (6) of the petition, the petitioner/appellant argued that this Court inadvertently relied upon a law which bore only on the criminal nature of a dishonored check and not specifically as to what happens in the instant case of an insurance policy; and in count eight of the petition, he also argued that this Court, in passing on the motion to introduce newly discovered evidence, inadvertently omitted to rely upon relevant statute and the facts set therein. These arguments as raised by the petitioner, are far beyond the realm of a party to a suit before the Court and do not constitute any of the grounds for re-argument. Counts six and eight do not hold also in this respect.

In count two of the petition, petitioner/appellant contended that in deciding this case the Court inadvertently omitted to take cognizance of the records in which it is shown that counsel for petitioner/appellant were never cited to tax the records before the transmission of same to the Supreme Court, and that it was upon this point that a motion for diminution of records with respect to the verdict of the trial jury was filed and granted.

However, the petitioner argued that the Court, in deciding, did not take cognizance of the correctness of the records. In taking recourse to the opinion, we find that the averments as contained in count two of the petition are untrue because, from sheet five to sheet ten of the opinion rendered in this case, the question of the verdict as attacked by the petitioner/appellant, with regards to Juror Esther Davis being discharged and substituted by Sarah Smith and the question of taxing the records, were all discussed and decided. Mr. Justice Yangbe, speaking for the Court, said on sheet ten of the opinion, which we herein quote:

“In our opinion, the circumstances which necessitated the remand of that case for the second time are quite different from those of the instant case in point of fact. In the instant case, there is a verdict in the record but the appealing counsel who attacked the authenticity of the verdict for the first time before this Court failed and neglected to call at the clerk’s office to tax the records and take the necessary required steps as provided by Rule 31 of the Circuit Court Rules, which failure in itself is a waiver of his rights to raise any issue with respect to any alleged defect appearing on the verdict. Moreover, there is no certificate from the clerk of the trial court to the effect that there was a verdict signed by Sarah Smith who substituted Juror Esther Davis, and that this verdict was missing from the record. Further-more, the court called for the original file from the court below and the original verdict therein is exactly the same in the transcribed records, awarding the amount adjudged against the appellant in the court’s final judgment.”

And so the points raised in count two of the petition for re-argument were all passed upon and the fact that the conclusion of the Court thereon is against the petitioner/appellant, furnishes no ground for re-argument. The said count two of the petition is therefore not sustained.

The petitioner argued in count five of its petition for re-argument that the Court inadvertently omitted to pass upon the issues of law and facts raised in counts 22 through 27 of appellant’s brief (counts 21 through 26 of appellant’s bill of exceptions). These counts enumerated errors made by the trial court judge in his charge to the empanelled jury wherein both issues of law and facts concerning the charge were outlined, including the failure of the trial court judge to summarize the evidence on both sides as required by law.

Countering this argument of the appellant/petitioner in count four of its resistance, the appellee/respondent has averred that it is a time honored practice in this Honorable Court that the Court need not pass on every count in the bill of exceptions. That it is the Court’s prerogative to pass only upon issues that it considers salient to the determination of the case.

The counts in the brief and the bill of exceptions referred to in count five of the petition for reargument are all issues connected with the alleged failure of the trial judge, except for the evidence of the plaintiff only, to summarize the evidence on both sides of the case to the empanelled jury and that the said charge of the trial judge was prejudicial and contrary to the laws of dishonored checks. In deciding this case during the March 1982 Term of this Court, at sheets eleven of the opinion, this Court had this to say:

“The main issue on which the final determination of this case lies is the existence or nonexistence of a valid insurance contract between the parties, by reason of what has transpired later on after the initial payment of the premium to appellant, the insurer, by appellee the insured, in the amount of $478.34 by a check and the delivery of the insurance policy to appellee by appellant followed by additional payment of $170.00 in cash on endorsements nos. 1 and 2, respectively.”

By the aforesaid conclusion, it is our holding that the trial court did not find it necessary to consider the issue of the judge’s charge objected to as being vital to the final and fair determination of the case, especially when the trial records do not show that the written request of the appellant for the judge to charge the jury on certain principles of law was filed at the close of the evidence or at any earlier time during the trial except that said request was filed at the close of argument when the trial judge was about to charge the jury, contrary to Civil Procedure Law, Rev. Code 1: 22.9.

The authenticity or validity of the check in the amount of $478.34 was challenged by petitioner/appellant and therefore in deciding the case, the Court dealt with this issue of the check very lengthily and finally settled the said issue in the opinion. For reference, see sheets 11, 12, 13 and 14 of the opinion. Whether or not the trial judge’s charge to the jury was contrary to the law of the dishonored check, and only the evidence of the appellee was summarized to the jury to the exclusion of the petitioner/appellant’s evidence, the pertinent issue necessary to the determination of the case was recognized, pointed out and decided by the Court. Here is the relevant law the Court quoted in settling the question of the check as the bone of contention:

“The fact that a receipt is given for payment of the premium upon the receipt of a check does not affect the rule that the check is merely conditional payment, and a receipt for a premium check which has been dishonored is not binding. There is authority, however, that where the insurer on taking a check for premium issued its unconditional receipt showing that the payment had been paid, the burden of showing that the acceptance of the check was conditional upon payment was on the insurer, and that the insurer’s giving of a receipt for a check was some evidence of unconditional acceptance of the check as payment. There is likewise authority that if the insurer receives and accepts a check as payment of a premium due and issues its official receipt evidencing the payment, it thereby waives its rights to declare a forfeiture of the policy, even though the bank subsequently dishonors the check.”

The settlement of this issue, as herein quoted above, left nothing of primary importance for the consideration of the Court to the fair and final determination of the case. There are several other citations quoted in the opinion of the Court in settling the main issue argued before us by counsel for both parties and we have not observed any material point of law and facts which we did not pass upon in our previous opinion to warrant the granting of a re-argument.

It is therefore our holding that the petition for re-argument be and the same is hereby denied with costs against the petitioner. And it is hereby so ordered.

Petition denied

Categories: 1983