Practice and procedure - Appeal - Relistment - Delay in applying for relistment of appeal fatal.

Practice and procedure - Appeal - Service - Appellant omitting to state address for service in notice of appeal to Supreme Court - Document properly served on solicitor appearing on notice of appeal - Supreme Court Rules 1970 (CI 13) r 5.

Practice and procedure - Appeal - Statement of case - Appellant filing statement of case out of time in Supreme Court - Appeal deemed to be struck out - Respondent entitled to ignore statement of case filed out of time.

The appellants applied to the Supreme Court to relist their appeal that was struck out and for extension of time to file a statement of case. The court found that Form 5, the notice of transmission of records to the Supreme Court, was served on the applicants’ solicitors on 19/12/90 and they filed the statement of case on 24/1/91 i.e. 15 days after the time permitted under the rules. Thereafter they learnt that their appeal was struck out for non-compliance with rule 13(1) of CI 13 on 16/8/91. The 1st applicant had confirmation thereof on 7/10/91. They argued that they filed their statement of case late because Form 5 was served on their solicitors contrary to rule 12(1) of CI 13. The court found also that in the notice of appeal filed by the applicants they omitted the name of their counsel and their addresses for service.

Held - (1) An appeal in the Supreme Court was by a notice of appeal filed in conformity with rule 6 of CI 13 and Form 1 as set out in the First Schedule to rule 6. By paragraph 6 of Form 1 the appellant was required to furnish his, and his counsel’s, address for service which they omitted to do. In the circumstances service of Form 5 on the solicitors who had signed the notice of appeal was as good as service on each of the appellants personally.

(2) The statement of case having been filed after 21 days the appeal was deemed by operation of law to have been struck out and the respondent was right to ignore the statement of case filed by the applicants.

(3) The applicants became aware of the striking out of the appeal between 16/8/91 and 7/10/91 and the delay to relist the appeal was too long. The rules of court ought to be obeyed otherwise a party would have an unqualified right to extension and defeat the purpose of the rules which was to provide a time-table for litigation.

Cases referred to:

Ratnam v Cumarasamy [1965] 1 WLR 8, [1964] 3 All ER 933, PC.

Revici v Prentice Hall Incorporated [1969] 1 WLR 157, [1969] 1 All ER 772, CA.

Essilfie v Anfo IV dated 28 July 1992, SC.

APPLICATION to relist an appeal and for extension of time to file a statement of case.

Agyeman for the applicants.

Adusei for the respondent.

WUAKU JSC. This is an application by the plaintiffs-appellants-applicants praying that the court relist the appeal struck out for hearing on its merits and, or, grant extension of time within which to file appellants’ statement of case. I am told that it was decided yesterday by the Supreme Court consisting of seven judges in the case of Essilfie v Anfo IV dated 28 July 1992, SC that this court has jurisdiction to relist appeals deemed to have been struck out under CI 13 rule 13(2).

The undisputed facts of this case, as I can deduce from the affidavit in support and in opposition, are these:

(a) Form 5, the notice of transmission of records to Supreme Court, was served on the applicants’ solicitors on 19/12/90.

(b) Pursuant to that notice the applicants filed their statement of case on 24/1/91.

(c) On a date not stated the applicants learnt that their appeal was, on 16/8/91, struck out for non-compliance with rule 13(1) of CI 13.

(d) The applicants had confirmation of the striking out when the 1st applicant visited the High Court at Kumasi on 7/10/91.

The applicants instead of filing their statement of case within 21 days from 19/12/90 did not do so but filed it 36 days later, i.e. 15 days after the time permitted under the rules. The applicants argued that they were late in filing their statement of case because instead of service of Form 5 being effected on each and everyone of them, it was served on their solicitors, a firm of solicitors. They said the service was improper as it offended against rule 12(1) of CI 13.

An appeal is brought to this court by notice of appeal in conformity with rule 6 of CI 13 in the Form 1 as set out in the First Schedule to rule 6. Form 1 consists of seven numbered paragraphs. The first paragraph deals with the notice of appeal; paragraph 2 - the part of the decision complained of, and in the 3rd paragraph the would-be appellant is requested to give the particulars of misdirection or error in law (in the judgment). Paragraph 4 deals with the grounds of appeal and paragraph 5, the reliefs sought from the Supreme Court. By paragraph 6 the appellant is to furnish the address for service on himself and that of his counsel. The last numbered paragraph which is 7, deals with the persons directly affected by the appeal, their names and addresses are to be given.

When the form is thus completed, it is dated and signed by the appellant (for appellants). Rule 70 of CI 13, the interpretation rule, provides as follows:

“In these Rules, unless the context otherwise requires: “appellant” includes the party appealing from a judgment, order or decree and his Counsel.”

The applicants’ notice of appeal consists of 5 paragraphs. Paragraphs 3 and 6 as provided by Form 1 Schedule 1 to section 6 are omitted. Thus the address for service on the appellants and the name and address for service on their counsel were omitted. The name and address for the respondent were provided. A firm of solicitors signed the notice of appeal with their rubber stamp over the said signature. This confirms the respondent’s allegation in paragraph 8 of the affidavit sworn to in opposition. Under the circumstances the Form 5 could only be served on the solicitors who had signed the notice of appeal, and also on the respondent. Such service, in my opinion is as good as service on each of the appellants-applicants personally. The applicants cannot complain that they were not properly served. The applicants cannot complain that the respondent was not served early enough, because, in my view, 21 days having elapsed without the statement having been filed, the appeal was deemed by operation of law to have been struck out. The respondent in my view would be right to ignore such a statement if served on him.

The applicants became aware of the striking out of the appeal between 16/8/1991 and 7/10/1991, the day when they had confirmation from the High Court Kumasi that the appeal was struck out. Fifteen months after the appeal was deemed to have been struck out and between 6 and 7 months after the appellants became aware of the striking out, the application herein was filed on 30/3/92. In my opinion the delay was too long. The rules must prima facie be obeyed otherwise, as it was held by the Privy Council in Ratnam v Cumarasamy [1965] 1 WLR 8, PC, a party