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Review -
Armed Forces - Commissioned
Officer - Peace-keeping
operations - Act to the
prejudice of good order and
discipline – Appeal filed out of
time without any extension of
time - Interpretation -Human
Rights - indemnity provisions -
section 54 of the Armed Forces
Act 1962, Act 105. - Limitation
Act, NRCD 54 - Transitional
Provisions of the 1992
Constitution – Whether or not
Appeal was filed out of time -
HEADNOTES
Whilst on
peace-keeping operations, he
was alleged to have done “an
act to
the prejudice of good order and
discipline” contrary to
section
54 of the Armed Forces Act 1962,
Act 105. The facts leading
to his discharge from the Armed
Forces do not appear to be very
necessary for the determination
of this application. Some time
after his discharge, the
applicant instituted proceedings
at the High Court (Fast Track
Division) seeking several
reliefs flowing from what he
alleged as breaches of the Armed
Forces Act, 1962 Act 105 and
violations of his fundamental
human rights. The High Court, on
19/06/2007, dismissed the
applicant’s action on the basis
that the action was caught by
the Limitation Act, NRCD 54 and
the Transitional Provisions of
the 1992 Constitution. Naturally
aggrieved by the decision, the
applicant lodged an appeal at
the Court of Appeal. on the
16/11/2007. The Court of Appeal
dismissed the appeal. the
appeal was dismissed on the
merits. The applicant lodged an
appeal to the Supreme Court.
The Supreme Court after hearing
the parties, based on the
written submissions of both
counsel in the appeal dismissed
the appeal on the simple ground
that the appeal from the High
Court judgment was filed out of
time without any extension of
time and therefore the Court of
Appeal had no jurisdiction to
entertain the appeal from the
High Court The applicant, who is
aggrieved by the dismissal of
his appeal, has now brought this
application inviting this court
to review its decision
HELD
it would be
unjust and contrary to the
reasonable expectations of
society if such a claim which
is caught by the statute of
limitation and therefore
improperly constituted were to
be dealt with on the merits. The
jurisdiction of courts to sit in
judgment over parties is derived
from statute and where statute
says clearly that to be
justiciable claims or
proceedings should satisfy
specific time frames, effect
must be given to them in order
to give life and meaning to the
rule of law, which is the
bedrock of our constitutional
democracy. The jurisdictional
issue does not concern itself
with the merits of the appeal if
the proceedings are a nullity.
In conclusion, we find no merit
in the application to review the
decision of this court founded
on the legal grounds that a
notice of appeal filed outside
the statutory period without a
valid extension of time is a
nullity and confers no
jurisdiction on an appellate
court. The application is
therefore dismissed as without
merits.
STATUTES
REFERRED TO IN JUDGMENT
Armed Forces
Act 1962, Act 105
Limitation
Act, NRCD 54
1992
Constitution
Court of Appeal Rules, 1997 (CI
19).
Court’s Act,
Act 459 of 1993
High Court
[Civil Procedure] Rules 2004
(C.I 47)
High Court
[Civil Procedure] Rules LN 140A
of 1954
CASES
REFERRED TO IN JUDGMENT
Frimpong v
Poku [1963] 2 GLR 1 SC,
Nye v Nye
[1967] GLR 76 CA [full bench]
Agyei v
Apraku [consolidated] [1977] 1
GLR III CA.
Atta Kwadwo
v. Badu [1977] 1 GLR 1 CA,
Darke ix v.
Darke IV [1984 – 86] 1 GLR 481
SC
Zakari v Ndun
[1968] 1 GLR 1032.
Republic v
Adansi Traditional Council; Ex
parte Nana Akyie II & OR [1974]
2 GLR 126 CA.
R v Justices
of Essex [1895] 1 Q B 38
BOOKS
REFERRED TO IN JUDGMENT
Baron’s Law
Dictionary, Fifth Edition at
page 380
Civil
Procedure in Nigeria, 2ND
edition at page 772 Fedilis
Nwadialo
DELIVERING
THE LEADING JUDGMENT
ANIN-YEBOAH
JSC:
COUNSEL
APPLICANT
APPEARS IN PERSON
CECIL
ADADEVOH, SENIOR STATE ATTORNEY
WITH MISS HELENA FRENCH,
ASSISTANT STATE ATTORNEY FOR ALL
THE RESPONDENTS.
______________________________________________________________________
R U L I N G
______________________________________________________________________
ANIN-YEBOAH JSC:
The applicant herein Captain
Robert Mba Tindana was a
Military
Officer commissioned into
the Ghana
Armed Forces in 1979.
Whilst on peace-keeping
operations, he was alleged to
have done “an act to the
prejudice of good order and
discipline” contrary to section
54 of the Armed Forces Act 1962,
Act 105. The facts leading to
his discharge from the Armed
Forces do not appear to be very
necessary for the determination
of this application. Some time
after his discharge, the
applicant instituted proceedings
at the High Court (Fast Track
Division) seeking several
reliefs flowing from what he
alleged as breaches of the Armed
Forces Act, 1962 Act 105 and
violations of his fundamental
human rights.
The High Court, on 19/06/2007,
dismissed the applicant’s action
on the basis that the action was
caught by the Limitation Act,
NRCD 54 and the Transitional
Provisions of the 1992
Constitution.
Naturally aggrieved by the
decision, the applicant lodged
an appeal at the Court of
Appeal. The Court of Appeal
dismissed the appeal.
The Notice of Appeal to the
Court of Appeal was filed
on the
16/11/2007. At the Court of
Appeal,
the appeal was dismissed on the
merits. The applicant lodged an
appeal to the Supreme Court.
The Supreme Court after hearing
the parties, based on the
written submissions of both
counsel in the appeal dismissed
the appeal on the simple ground
that the appeal from the High
Court judgment was filed
out of
time without any extension of
time and therefore the Court
of Appeal had no jurisdiction to
entertain the appeal from the
High Court. In the unanimous
ruling of the Supreme Court that
was read by Justice Gbadegbe,
the court pronounced on the
competency of the appeal that
was determined by the Court of
Appeal as follows:
“The appeal which was filed
after three months period
provided under rule 9 of the
Court of Appeal Rules was
plainly incompetent resulting in
the absence of jurisdiction in
the Court of Appeal to determine
it. Consequently, the entire
proceedings acquire the
attribute of nullity and same
are hereby set aside”.
The applicant, who is aggrieved
by the dismissal of his appeal,
has now brought this application
inviting this court to review
its decision
by setting aside the judgment
dismissing his appeal on several
grounds. For fuller record the
grounds for this application as
set out as follows:
a)
The applicant was not out of
time in bringing the appeal to
the Court of Appeal.
b)
Assuming without conceding that
the applicant filed his appeal
to the Court of Appeal late in
time, that irregularity is
waivable and same was waived by
the Court of Appeal.
c)
The Supreme Court erred when it
neglected, contrary to statute
and contrary to the principle of
audi alteram partem, to hear the
applicant before resting its
decision entirely on a fresh
ground that was generated by the
court itself, leading to a
judgment that is contrary to the
evidence in the record of
proceedings to the effect that
any irregularity on the part of
the applicant was waived by the
Court of Appeal.
d)
The Supreme Court erred when it
swept under the carpet, crucial
issues relating to the
interpretation of the Human
Rights and indemnity provisions
of the 1992 Constitution on
substantive Justice, by
sheltering under a mere
procedural rule that is , in any
event, waivable.
On the first ground, the
applicant has urged on us that
his appeal
was not
filed out of time. This is
based on his interpretation of
the reckoning of time in civil
matters. The computation of time
is statutorily provided for in
the various rules of court. In
the instant case, the applicable
rules are contained in the
Court of
Appeal Rules, CI 19. The
judgment of the High court was
delivered on 19/06/2007. By
rule 9(1)(b) of the Court of
Appeal Rules, the applicant had
three months within which to
lodge any appeal against the
High Court’s judgment since the
judgment was not interlocutory
but final for all purposes
except he was granted leave by
the High Court or the Court of
Appeal under sub rule 4 of the
rule.
The applicant did not lodge his
appeal within the three months
from the delivery of the High
Court’s judgment. Neither did he
seek and obtained an order in
his favour to appeal out of
time. He contended that as the
judgment was delivered on the
19/06/2007 and the legal
vacation commenced on 1/08/2007
and ended on 30/09/2007, he was
within time. In effect, legal
vacations are not reckoned in
the computation of time for
lodging civil appeals. Learned
counsel for the applicant
acknowledges that time for
filing pleadings and amendment
of pleadings are not reckoned
during legal vacations. He says
a pleading in civil proceedings
includes Notice of Appeal as a :
“Notice of Appeal is for the
purpose of providing notice of
what is to be expected at the
trial in the Court of Appeal”.
In the
statement of case accompanying
the application, the applicant
adopted the definition of
pleading provided in Order 82
rule 3 of CI 47 and argues that
since the notice of appeal was
in its nature a pleading, the
court erred in its computation
of the three months limitation
provided for appeals by taking
into account the period of the
legal vacation. Order 82 rule
3 defines pleading as “the
formal allegations by the
parties to a law suit of their
respective claims and defences
with the intended purpose of
providing notice of what is
expected at the trial”
The above
definition, we think agrees with
what is generally accepted in
most jurisdictions of the term
pleading. Reference is made to
the definition of pleading in
Baron’s
Law Dictionary, Fifth Edition at
page 380 as follows:
“PLEADINGS
statements, in its logical and
legal form of the facts that
constitute plaintiff’s cause of
action and defendant’s ground of
defence. They are either
allegations by the parties
affirming or denying certain
matters of fact, or other
statements by them in support or
derogation of certain principles
of law, which are intended to
have the effect of disclosing to
the court or jury the real
matter in dispute….
At common
law, pleadings were a rigorous
process of successive statements
the aim of which was to
progressively narrow the issue.
The common law pleadings were
the plaintiff’s declaration, the
defendant’s plea, the
plaintiff’s replication, the
defendant’s rejoinder, the
plaintiff’s surrejoinder, the
defendant’s rebutter, the
plaintiff’s surrebutter……….”
Ingenious as
the argument regarding the
classification of a notice of
appeal as a pleading seems to
be, we think that it loses sight
of the fact that a notice of
appeal is an originating process
that may be likened to a writ of
summons, which does not require
of the defendant or respondent
to file a process specifically
in reply or answer to it. It is
observed that the purpose of
time limits for appealing is to
provide certainty as to whether
or not an action that has been
determined has been put to rest
by the parties or is pending by
way of a process of judicial
correction that is normally
brought into being by one of the
parties commonly described as an
aggrieved party lodging an
appeal therefrom to a higher
court that seeks to have the
decision in respect of which the
notice of appeal has been
filed set aside after a process
of rehearing. The notice of
appeal in this regard only
initiates the process of appeal
and cannot be described as a
pleading; for in its nature it
does not require the respondent
to make by way of answer any
“allegation” to the contrary.
In our view, a notice of appeal
has never qualified as a
pleading in any judicial
process. The question whether or
not such pleadings may be filed
in the vacation is a matter
regulated by the rules of
court. In our view, the
contention by learned counsel
for the applicant regarding the
computation of the time limit
for appealing to the Court of
Appeal attractive as it might
be, is on a careful
consideration one that runs
contrary to the settled practice
of the courts.
To us the crucial issue for
determination in this
application is whether the Court
of Appeal had jurisdiction to
hear the appeal on which this
court formed the view it had
been filed outside the statutory
period without any valid
extension of time.
That view has not been called in
question before us in these
proceedings, and therefore in
determining the application for
review we propose to base our
opinion on the fact that it was
indeed filed out of time.
It must be stated as trite
learning that all appeals are
statutorily conferred. See
FRIMPONG V POKU [1963] 2 GLR
1 SC, NYE V NYE [1967]
GLR 76 CA [full bench] and
AGYEI V APRAKU
[consolidated] [1977] 1 GLR III
CA.
In Ghana, the right to appeal
vested in the applicant from the
decision of the High Court to
the Court of Appeal was
conferred by the 1992
Constitution under Article 137
and section 11 of the
Court’s
Act, Act 459 of 1993 and
regulated by the
Court of
Appeal Rules, 1997 (CI 19).
An appellant who is vested with
the statutory right of appeal
must comply with all provisions
of the statute creating such a
right. In this case, the
applicant’s right to appeal is
regulated by the Court of Appeal
Rules, 1997 CI (19),
specifically Rule 9 thereof.
The plain language of Rule 9 of
CI 19 is that civil appeals in
final decisions of the High
Court or Circuit Courts ought to
be filed within three months
from the date the decision was
delivered. The appellant herein
failed to apply for extension of
time after the expiration of the
three months. It is equally
plain that the applicant filed
his appeal outside the three
months provided by the rules
without extension of time. His
argument is that time did not
run during the legal vacation.
A careful reading of the High
Court Rules, specifically Order
80 rule 2 of CI 47 excludes
vacations in computation of time
only in respect of filing or
amending pleadings. Under the
old rules,
High
Court [Civil Procedure] Rules LN
140A of 1954 the position
was the same. It therefore
follows, that, as Notice of
Appeal for all purposes has
never been a pleading in any
civil litigation in this country
or elsewhere, time continues to
run for filing appeals during
the legal vacation. The appeal
lodged outside the three months
was therefore outside the
statutory period provided for
under Rule 9 of CI 19. It is
settled on a long line of
authorities that an appeal filed
outside the statutory period
provided under the rules without
any valid extension of time is
void. See
ATTA
KWADWO V. BADU [1977] 1 GLR
1 CA, DARKE IX V. DARKE IV
[1984 – 86] 1 GLR 481 SC and
ZAKARI V NDUN [1968] 1 GLR
1032.
The applicant’s argument to
debunk the above proposition of
law is that since the Court of
Appeal heard the appeal by
assuming jurisdiction the
Supreme Court ought not to have
raised this point against him.
It must be pointed out that the
issue of whether or not the
appeal was filed outside the
statutory period was one which
goes to jurisdiction. A
jurisdictional issue must be
addressed by any court
entertaining any proceedings.
In this case, the issue of
jurisdiction could not have been
waived by the Court of Appeal
when the appeal was filed
outside the three months without
any valid extension of time to
give life to the appeal. We
think that condition precedent
to the exercise of the right to
appeal within a specified time
frame cannot be waived by any
court and indeed the power
conferred on our courts to
extend time in circumstances
that they deem fit is a
recognition that beyond the
statutory indulgence that is
expressly authorized by the law
maker any appeal filed out of
the initial period of three
months and in the period allowed
for extension of time would be
incompetent and could be raised
at the hearing of the appeal by
the respondent. When this
happens, then the order
extending time would be set
aside. Therefore we do not think
it is right to contend that the
Court of Appeal waived the issue
of the appeal having been filed
out of time. Even if the court
were to do so, which in law
could not be done, we think that
the waiver must appear expressly
in the record and cannot be
inferred from an omission to
advert its mind to it.
In our respectful opinion, the
learned justices of the Court of
Appeal did not advert their
minds to the issue of the appeal
having been filed out of time.
We think that they must have
thought that everything was in
order particularly as neither
counsel raised it for their
consideration. The resulting
consequence is that they
exercised jurisdiction over an
appeal that was plainly
incompetent. Since it was a
jurisdictional issue it could be
taken even in the last appellate
court and this was rightly done
by this court. See -
REPUBLIC V ADANSI TRADITIONAL
COUNCIL; EX PARTE NANA AKYIE
II & OR [1974] 2 GLR 126 CA.
As the Court of Appeal lacked
jurisdiction to hear the appeal,
the parties and the court’s
failure to raise the point is
inconsequential. Lord Esher MR
in R V
JUSTICES OF ESSEX [1895] 1 Q
B 38 said as follows at page
41:
“No consent of the parties can
give jurisdiction when the
conditions are not complied with”
Another complaint against the
judgment of this court is that
this court propio motu raised
the issue of jurisdiction
without offering the parties the
opportunity to argue on it. It
is trite learning that a court
adjudicating any matter may
raise a point of law on its own
motion. In these proceedings,
the point of law raised was
jurisdictional.
In as much as we agree with
learned counsel that the court
ought to have offered the
parties the opportunity to
address it on the point raised,
we are of the considered opinion
that the point raised was
clearly unanswerable to admit of
any legal argument under the
circumstances. It would
therefore have been an exercise
in futility for counsel on both
sides to address the court on
the point raised.
We conclude this ruling with the
words of
Fedilis Nwadialo in his
celebrated book, CIVIL
PROCEDURE IN NIGERIA, 2ND
edition at page 772 where he
said as follows:
“In order to be entitled to
exercise a right of appeal, the
appellant must come within the
provision of the statute
creating such a right. It is
thus proper for an appellate
court to raise the issue of
right to appeal SUO MOTU since
it is crucial to the appeal and
any proceedings leading to a
judgment given without
jurisdiction is a nullity,
however well conducted”.
Regarding the issue of human
rights that is raised by the
applicant, we think that it can
only be raised in an action or
proceeding which is competently
taken before any court of law.
Where, as in this case, the
party who seeks to have his
claim to having his human rights
violated and for that matter
seeks appropriate redress brings
his action or proceedings
outside the time frame provided
by the law then in keeping with
the requirements of due process
which is a condition precedent
to the court’s exercise of its
jurisdiction,
it would
be unjust and contrary to the
reasonable expectations of
society if such a claim which
is caught by the statute of
limitation and therefore
improperly constituted were to
be dealt with on the merits. The
jurisdiction of courts to sit in
judgment over parties is derived
from statute and where statute
says clearly that to be
justiciable claims or
proceedings should satisfy
specific time frames, effect
must be given to them in order
to give life and meaning to the
rule of law, which is the
bedrock of our constitutional
democracy. The jurisdictional
issue does not concern itself
with the merits of the appeal if
the proceedings are a nullity.
In conclusion, we find no merit
in the application to review the
decision of this court founded
on the legal grounds that a
notice of appeal filed outside
the statutory period without a
valid extension of time is a
nullity and confers no
jurisdiction on an appellate
court.
The application is therefore
dismissed as without merits.
[SGD]
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD] S.
A. BROBBEY
JUSTICE OF THE SUPREME COURT
[SGD]
J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD]
S. O. A. ADINYIRA(MRS.)
JUSTICE OF THE SUPREME COURT
[SGD]
R. C.
OWUSU(MS)
JUSTICE OF THE SUPREME COURT
[SGD]
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
[SGD]
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL:
APPLICANT
APPEARS IN PERSON
CECIL
ADADEVOH, SENIOR STATE ATTORNEY
WITH MISS HELENA FRENCH,
ASSISTANT STATE ATTORNEY FOR ALL
THE RESPONDENTS.
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