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Practice and Procedure -
Extension or reduction of time
- Judgment - final or
Interlocutory - Interpleader
proceedings-
Memorandum of agreement
–
Execution – Review - Award of
damages - Whether the high court
had jurisdiction to make the
order granting
extension
of time to the claimants -
Whether the judgment arising out
of the interpleader proceedings
was final or interlocutory -
Article 137(2) of the
Constitution
HEADNOTES
The
plaintiffs sued the defendants
for an amount owed them. The
matter was submitted for
mediation at the end of which
process a judgment based on a “Memorandum
of agreement” reached
between the parties was entered
against the defendant by the
High court, Upon the failure of
the defendants to abide by the
terms of the said judgment, the
plaintiffs attempted to go into
execution.
In the course of execution the
plaintiffs caused certain
properties to be attached by the
Sheriff of the court It was at
this stage that the claimants
herein filed a joint notice of
claim At the end of the hearing,
the learned trial judge
discharged the subject matter
from further execution. Being
dissatisfied with these final
orders, the claimants sought a
review which was refused The
court of appeal upheld the
appeal against the judgment of
the high court set aside the
part which stated that damages
could not be awarded in an
interpleader action. Being
dissatisfied with the judgment
of the court of appeal, the
plaintiffs have filed the
present appeal
HELD
we find that the proceedings
before the court of appeal in
respect of the review ruling,
having been initiated upon a
notice of appeal filed outside
the statutory period of
twenty-one days, are a nullity
because that court’s
jurisdiction was not properly
invoked and so those proceedings
were conducted without
jurisdiction. The said
proceedings and all orders made
as a result are hereby set
aside. The lack of jurisdiction
on the part of the court of
appeal to hear the said appeal
also taints the appeal before
this court in similar manner.
Consequently, it is struck out.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court Rules 1996, C. I.
16
High Court Civil Procedure
Rules 2004 C. I 47
Court of Appeal Rules 1997,
C.I. 19
Courts Act, 1993, Act 459
Interpretation Act, 2009, (Act
792)
CASES
REFERRED TO IN JUDGMENT
Nii
Kojo Danso II vrs The Executive
Secretary, Lands Commission & 2
0rs and Joshua Attoh Quarshie
Civil Appeal No J4/35/2017 28th
November 2018
Network Computer System (NCS)
Ltd vs Intelsat Global Sales and
Marketing Ltd [2012] 1 SCGLR
218@226
Agoti v Agbenoku [1978] GLR 14
Bansah v GB Ollivant [1954] WACA
408,
National Investment Bank Limited
& 2 Ors v Standard Bank Offshore
Trust Co Ltd etc. [2017] 113 G M
J 174
Frimpong
v Nyarko [1998-99] SCGLR 734
Bosompem
v Tetteh [2011] 1 SCGLR 397
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AVRIL LOVELACE-JOHNSON:-
COUNSEL
WILLIAM OSEI KUFFOUR FOR THE
PETITIONER/RESPONDENT/APPELLANT.
KORSAH BROWN FOR THE
CLAIMANTS/APPELLANTS/RESPONDENT.
AVRIL LOVELACE-JOHNSON:-
The designation of the parties
in the High Court will be
maintained in this appeal.
At the hearing of this appeal
both counsel were directed to
address this court on
whether
the high court had jurisdiction
to make the order granting
extension of time to the
claimants on 29th
July 2016 to file an appeal
against the judgment and ruling
of the high court dated 30th
October 2015 and 7th
April 2016 respectively.
This directive was made pursuant
to Rule 6 sub rules 7(b) and 8
of the
Supreme Court Rules 1996, C. I.
16 which provide as follows:
(7) Notwithstanding sub rules
(1) to (6) of this rule the
Court-
(a) ………
(b) 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.
(8) Where the Court
intends to rest a decision on a
ground not set forth by the
appellant in his notice of
appeal or on any matter not
argued before it, the Court
shall afford the parties
reasonable opportunity to be
heard on the ground or matter
without reopening the whole
appeal.
Both counsel did so and counsel
for the claimants further
addressed us on
whether
the judgment arising out of the
interpleader proceedings was
final or interlocutory.
The background of this matter is
undisputed and in sum is as
follows:
The plaintiffs sued the
defendants for an amount owed
them. The matter was submitted
for mediation at the end of
which process a judgment based
on a “Memorandum of agreement”
reached between the parties was
entered against the defendant by
the High court, Commercial
Division, Kumasi.
Upon the failure of the
defendants to abide by the terms
of the said judgment, the
plaintiffs attempted to go into
execution.
In the course of execution the
plaintiffs caused certain
properties to be attached by the
Sheriff of the court on 10th
September 2009. It was at this
stage that the claimants herein
on 21st October 2009
filed a joint notice of claim as
required by order 44 r 12 of the
High Court Civil Procedure Rules
2004 C. I 47 in respect of the
said attached properties.
A hearing of the matter
commenced.
At the
end of the hearing, the learned
trial judge gave judgment on
30th October 2015 by
which he “accordingly
discharged the subject matter
from further execution”
and refused to grant the special
and general damages he had
assessed on the ground that such
damages could not be granted in
an interpleader action.
He ordered the claimants to
institute a fresh action to
claim same.
Being dissatisfied with these
final orders, the claimants
sought a review which was
refused
on 7th April 2016.
They then sought and were
granted extension of time to
file an appeal against both the
original judgment and the ruling
refusing their application for
review.
The court of appeal upheld the
appeal against the judgment of
the high court,
set aside
the part which stated that
damages could not be awarded in
an interpleader action and
awarded
damages to each claimant on
the basis of assessments set out
in their judgment.
Being dissatisfied with the
judgment of the court of appeal,
the plaintiffs have filed the
present appeal
to this court on the following
grounds:
1.
The whole of the judgment of the
Court of Appeal (Civil
Division), Kumasi and dated 21st
May 2018 is against the weight
of evidence presented before the
Court of Appeal.
2.
As an appeal is by way of
rehearing the court of appeal as
the
first appellate court in this
matter, failed or refused to
carry out her duty to revisit
the whole of the evidence
(including documents and
exhibits) on record, analyse and
evaluate same and come to its
own independent findings or
conclusions.
3.
The Court of Appeal erred in
upholding the finding of the
trial court that the
Plaintiff/Respondent/Appellant
did not exercise due diligence
in causing the attachment of the
claimants properties and that
the attachments were (including
documents & exhibits) on record.
4.
The Court of Appeal exceeded her
jurisdiction and breached the
rules of natural justice when
she exclusively used the
evidence of the
claimants/appellants/respondents
in assessing and awarding the
respective quantum of damages
for each attached property.
5.
The Court of Appeal erred in
awarding interest
retrospectively for each
attached property when she made
the award of damages for
respective properties.
6.
Additional grounds may be filed
upon receipt of the record of
proceedings.
Regarding the issue raised by
this court for address, counsel
for the claimants takes the
position that commonsense
dictates that where an
application for review is
refused a person should be able
to file an appeal against the
judgment for which a review was
sought. Further that even if
Order 42 of C.I.47 which governs
review applications does not
envisage an appeal after such an
application is refused then
regarding the said refusal, time
to appeal against it starts
running from the date the ruling
in that regard was given, that
is 7th April 2016.
This would make the extension of
time granted by the high court
in respect of the review ruling
proper since it would fall
within the time limits set by
the rules of the court of
appeal. Counsel also submits
that the judgment of 30th
October 2015 was final because
it determined the rights of the
parties in re the subject matter
and that, “its finality was
postponed till the application
for review had been ruled upon”.
Counsel for the plaintiffs
argues that Order 44 rule 13 (5)
clearly sets out the time for
appealing a judgment arising out
of a Sheriff interpleader action
and the claimants, having chosen
the option of applying for a
review as was their right, they
are to bear the consequences of
that choice which was that the
time for appeal had elapsed by
the time their application for
review was ruled upon.
The record shows that as was
indeed within their right so to
do, within fourteen days from
the date of the judgment of the
high court, the claimants
elected to apply for a review of
the said judgment by virtue of
Order 42 rule 1(1),(2) and 2(2)
of C. I. 47 on 11th
November 2015.
As stated earlier the
application for review was
refused on 7th April
2016. Thereafter the claimants
filed an application for
extension of time in the high
court to enable them appeal
against both the judgment
and
the ruling refusing its
review
to the court of appeal on 17th
June 2016. The said application
was granted on 29th
July 2016.
A question which needs to be
answered at the onset is whether
the said application, to the
extent that it related to the
original judgment was proper in
the light of the fact that there
was a ruling on the review
application of the same
judgment.
The position at law is that the
ruling of 7th April
2016 regarding the application
for review supersedes the
judgment of 10th
October 2015 so that was what
could properly be the subject
matter of an application for
extension of time within which
to appeal and not the original
judgment on the interpleader
action itself. This court in the
case of
Nii
Kojo Danso II vrs The Executive
Secretary, Lands Commission & 2
0rs and Joshua Attoh Quarshie
Civil Appeal No J4/35/2017 28th
November 2018
stated per Benin JSC (as he then
was) as follows
“I would only add that under
order 42 of C. I. 47 a party is
only debarred from appealing
against a decision when he has
applied for a review of the same
decision. After a court has
ruled on the review application,
the aggrieved person may
exercise his right of
appeal………not against the
original decision which was the
subject matter of the review but
against the ruling in the review
application”
This position makes any grounds
of appeal filed which are
unrelated to the ruling on the
review application incompetent
which would be all the grounds
of appeal.
Order 42 regulating applications
for review is silent on whether
and within what time an appeal
can be lodged against a ruling
refusing an application for
review. The answer to the first
is answered shortly by reference
to
Article 137(2) of the
Constitution which provides
as follows
Except as otherwise provided in
this Constitution, an appeal
shall lie as of right from a
judgment decree or order of the
High Court and a Regional
Tribunal to the Court of Appeal
Regarding the second, the ruling
in question, having arisen out
of proceedings relating to an
execution process can only be
interlocutory. While
interpleader proceedings may
determine the rights of the
parties in relation to the
ownership of the items seized in
execution, such proceedings have
been held to be interlocutory
“since it arises out of some
other matter” See
Network
Computer System (NCS) Ltd vs
Intelsat Global Sales and
Marketing Ltd [2012] 1 SCGLR
218@226
citing
Agoti v Agbenoku [1978] GLR 14
Similarly, an order refusing to
review a judgment arising out of
such proceedings can only be an
interlocutory one. That being so
an appeal against such a
judgment or order can only be an
interlocutory one.
In
Bansah v GB Ollivant [1954] WACA
408,
cited in Bosompem v Tetteh
Kwame supra, the court held
as follows:
“A judge’s refusal to review his
judgment is an interlocutory
decision and if special leave to
appeal from the refusal has not
been obtained, the appeal from
the refusal is not properly
before the court of appeal;
therefore the court has no power
to grant leave to amend the
notice of appeal”
The Court
of Appeal Rules 1997, C.I. 19
clearly provide in Rule 9
(1) as follows:
‘Subject to any other enactment
for the time being in force, no
appeal shall be brought after
the expiration of –
(a)
Twenty-one days in the
case of an appeal against an
interlocutory decision
or
(b)
three months in the case
of an appeal against a final
decision unless the court below
extends time
(2)
The prescribed period
within which an appeal may be
brought shall be calculated from
the date of the decision
appealed against.
These are the conditions to be
fulfilled by an appellant if he
is to gain access to the court
of appeal. Rule 9 (1) (a)
especially relates to appeals
regarding interlocutory
decisions and that is what is
applicable to an appeal from the
ruling under discussion since it
is an interlocutory one.
As stated earlier, order 42 does
not prescribe a time frame for
lodging an appeal against a
ruling obtained under the said
order and an appellant can
clearly not seek refuge under
order 80 rule 4 which only seeks
to
extend or reduce
times set down by the provisions
of C. I. 47.
Order 80 rule 4 provides as
follows
Extension or reduction of time
(1)
The Court may, on such
terms as it thinks just, by
order extend or reduce the
period within which a person is
required or authorized by these
Rules, or by any judgment, order
or direction, to do any act in
any cause or matter
(2)
The Court may extend any
such period although the
application for extension is not
made until after the expiration
of that period
The mandatory rules governing
interlocutory appeals to the
court of appeal clearly limit
the Defendants to twenty-one
days and make no provision for
extension of this period. It is
this prescribed period, set by
the rules of the court of
appeal, a court, higher in
hierarchy to the high court that
is applicable to the Defendant’s
appeal against the review ruling
and not the extension of time
purportedly granted by the high
court even if the said extension
could have found legitimacy
under order 80 rule (4) of C I
47.
The ruling refusing the
application for review was
delivered on 7th
April 2016. The appeal against
the said ruling to the court of
appeal was filed on 26th
August 2016, a date clearly
falling outside the twenty-one
days prescribed by rule 9 (1)(a)
the court of appeal rules, thus
rendering it out of time.
Section 11(7) of the
Courts
Act, 1993, Act 459 provides
that
The court of appeal
shall
not entertain any appeal unless
the appellant has fulfilled all
the conditions prescribed in
that behalf by rules of court.
In
National Investment Bank Limited
& 2 Ors v Standard Bank Offshore
Trust Co Ltd etc. [2017] 113 G M
J 174
this court stated that:
“Where a rule is mandatory by
the use of the expression
“shall”, it should be so
regarded in view of section 42
of the
Interpretation Act, 2009, (Act
792).”
Again in
Frimpong
v Nyarko [1998-99] SCGLR 734 @
750,
this court underscored the fact
that defaults regarding matters
such as the rules relating to
times within which to file an
appeal or obtaining leave are
fundamental and go to the root
of an appeal and so the court
has no discretion but to dismiss
the appeal when such defaults
occur. They “affect the
notice itself, invalidate it and
render the appeal void” per
Acquah JSC (as he then was)
In such circumstances, this
court has stated that the
appellate court’s jurisdiction
has not been properly invoked.
It is only when the court has
jurisdiction, which clothes it
with competence, that parties
can have a matter in dispute
between them adjudicated upon.
See the case of
Bosompem v Tetteh [2011] 1 SCGLR
397@
405.
For this reason,
we find
that the proceedings before the
court of appeal in respect of
the review ruling, having been
initiated upon a notice of
appeal filed outside the
statutory period of twenty-one
days, are a nullity because that
court’s jurisdiction was not
properly invoked and so those
proceedings were conducted
without jurisdiction. The said
proceedings and all orders made
as a result are hereby set aside.
The lack of jurisdiction on the
part of the court of appeal to
hear the said appeal also taints
the appeal before this court in
similar manner. Consequently, it
is struck out.
AVRIL LOVELACE-JOHNSON
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
WILLIAM
OSEI KUFFOUR FOR THE
PETITIONER/RESPONDENT/APPELLANT.
KORSAH BROWN FOR THE
CLAIMANTS/APPELLANTS/RESPONDENT.
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