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CORAM:
ATUGUBA, JSC
(PRESIDING), DOTSE, JSC, YEBOAH,
JSC, GBADEGBE, JSC , BENIN, JSC
Practice and Procedure - Appeal
- Interlocutory - Rule 8(1) (a)
of CI 16 of 1996 - whether
- former Ya-Na of the Dagbon
Traditional Area entitled to
full funeral rites in accordance
with Dagbon Constitution and
Customary practice -
HEADNOTES
The
plaintiff/respondent/respondent,
who, for sake of brevity shall
be referred to as the respondent
issued a writ of summons at the
High Court, Tamale on 26/07/12
for the following reliefs, A
declaration that as a former Ya-Na
of the Dagbon Traditional Area,
the late Ya-Na Mahamadu Abdulai
IV is entitled to be accorded
full funeral rites in accordance
with Dagbon Constitution and
Customary practice. The
defendants/appellants/appellants
who shall (henceforth be
referred to as the appellants)
entered appearance and filed
their statement of defence After
the filling of application for
directions, the court fixed a
date for the directions. On that
day counsel for the defendant
was the only counsel present and
he applied to the court for
issue one (1) set out in the
application for directions to be
set down for preliminary trial
by legal arguments under Order
33 rules 3 and 5 of CI 47. the
High Court judge in delivering a
lengthy ruling, The defendants
lodged an appeal against this
order on 28/11/2013 and
canvassed several grounds for
the allowance of the appeal.
The appeal came before the Court
of Appeal which unanimously
dismissed the appeal
HELD :-
we conclude that the appellant
was unjustifiably shut out of
the trial. We therefore allow
the appeal, set aside the
judgment of the Court of Appeal
and restore the decision of the
High Court. We must state that
except on matters of law stated
herein which are binding on the
courts below, nothing stated
herein should be taken as a
finding of fact by this Court;
all the issues are at large and
the trial court is unfettered in
its decision to conduct a ‘full
blown’ triaL
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules), 2004 CI 47.
Order 33 rules 3 and 5
TINDANA (No.2) v CHIEF OF DEFENCE
STAFF & ATTORNEY-GENERAL (No.2)
[2011] SCGLR 732.
CASES REFERRED TO IN JUDGMENT
NETWORK COMPUTER SYSTEM
LTD v INTERPLAST GLOBAL SALES &
MARKETING LTD [2012] ISCGLR218
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
YEBOAH, JSC:-
COUNSEL.
SHAHADU MOHAMMED FOR THE DEFENDANTS/
APPELLANTS/APPELLANTS
CHARLES AGBANU FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS
JUDGMENT
YEBOAH, JSC:-
This appeal raises a procedural issue
which has on regular basis
plagued appellate courts in
common law jurisdictions for
centuries. It is the issue of
whether an order/judgment is
interlocutory or final in
nature.
To appreciate the reasons for this
judgment a brief account of the
facts culminating in this appeal
will suffice. The
plaintiff/respondent/respondent,
who, for sake of brevity shall
be referred to as the respondent
issued a writ of summons at the
High Court, Tamale on 26/07/12
for the following reliefs:
a.
A declaration that as a
former Ya-Na of the Dagbon
Traditional Area, the late Ya-Na
Mahamadu Abdulai IV is entitled
to be accorded full funeral
rites in accordance with Dagbon
Constitution and Customary
practice.
b.
An order compelling the 1st
defendant as the Regent of
Dagbon and their elders to
perform or cause to be performed
the funeral rites of the late Ya-Na
Mahamadu Abudulai IV.
The
defendants/appellants/appellants
who shall (henceforth be
referred to as the appellants)
entered appearance and filed
their statement of defence on
16/08/2012. The record shows
that several interlocutory
applications were filed but it
appeared that none was pursued
by the parties and therefore are
not necessary for the
determination of this appeal as
the appeal before us does not
turn on any of the interlocutory
applications.
After the filling of application for
directions, the court fixed the
21/06/2013 for the directions.
On that day counsel for the
defendant was the only counsel
present and he applied to the
court for issue one (1) set out
in the application for
directions to be set down for
preliminary trial by legal
arguments under Order 33 rules 3
and 5 of CI 47.
The issue (1) states thus:
“whether or not the
late Mahamadu Abdulai should be
regarded as a former Ya-Na in
terms of the decision of the
Supreme Court in Re Yendi Skin
Affairs, Yakubu II v Abdulai
No.2”
The formal order which the learned
High Court judge eventually made
was as follows:
“By Court: Learned
counsel for the defendants is to
file his written submission in
respect of the preliminary legal
arguments on issue 1 and the
additional issue 1 on or before
2nd July, 2013
learned counsel for the
plaintiff is to respond to same
on or before 17th
July, 2013. The case is
adjourned to 19th
July, 2013”
On the 14th of November,
2013, the High Court judge in
delivering a lengthy ruling made
the following formal order:
“The plaintiffs’
claim for all the analysis made
cannot be truncated at this
stage. Na Mahamadu Abdulai by
the decision and orders of the
supreme Court in the In Re Yendi
Skin affairs cited supra is a
former Yaa-Na and I so hold.
With this hurdle
cleared the suit should proceed
for the determination of the
other issues” (emphasis ours)
The defendants lodged an appeal
against this order on 28/11/2013
and canvassed several grounds
for the allowance of the
appeal. The appeal came before
the Court of Appeal which
unanimously dismissed the appeal
and made the following order;
“The appeal fails
and same is dismissed. The
parties are ordered to appear
before the trial High Court for
the case to proceed” (emphasis
ours).
The appellant before us was not
satisfied with the order to
appear before the trial High
Court to proceed with the case
and rather lodged an appeal to
this court on 24/10/2014.
When this appeal came before us we
pointed out to counsel that the
ruling appealed against was
clearly interlocutory and that
under the rules of this court,
precisely Rule 8(1) (a) of CI 16
of 1996, interlocutory appeals
from the Court of Appeal should
be filed within twenty-one
days. We accordingly dismissed
this appeal for want of
jurisdiction and reserved our
reasons.
In this appeal, we noticed that no
matter how any jurist may look
at the order made by the Court
of Appeal or the nature of the
application to the High Court,
the order given under
consideration now and that of
the High Court are all
interlocutory in nature. See
NETWORK COMPUTER SYSTEM LTD v
INTERPLAST GLOBAL SALES &
MARKETING LTD [2012] ISCGLR218,
in which this very court
considered the two criteria for
determining whether a judgment
or order is final or
interlocutory.
As the notice of appeal was lodged
outside the statutory period we
are devoid of jurisdiction as
pointed out in the case of
TINDANA (No.2) v CHIEF OF
DEFENCE STAFF & ATTORNEY-GENERAL
(No.2) [2011] SCGLR 732.
We therefore accordingly dismissed
this appeal for want of
jurisdiction.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
ATUGUBA, JSC:-
The appellant contended
that the Court of Appeal had no
jurisdiction to determine his
appeal thereto on a different
rule of court from the one he
relied on. I have scrutinized
this contention and found no
merit in it, since a court
cannot be debarred from
considering the rule of court
which is relevant to the appeal
before it. Since the Court of
Appeal did not commit a
jurisdictional error the
statutory time limit for an
interlocutory appeal binds him.
It was for this reason
that I joined in the dismissal
of the appeal.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SHAHADU MOHAMMED FOR THE DEFENDANTS/
APPELLANTS/APPELLANTS
CHARLES AGBANU FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS |
