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Judicial Review - Leave to amend
his Notice of Appeal - Whether
or not application was filed out
of time - Whether or not
the court has the power to waive
its discretion on
non-compliance with rules .
HEADNOTES
The facts giving rise to this
interlocutory appeal are not in
dispute. On 18th May
2015 the High Court, Kumasi
dismissed an application for
Judicial Review, applicant/
appellant/respondent/respondent
being dissatisfied, he filed an
appeal to the Court of Appeal
Nonetheless, the Court of Appeal
heard an application filed by
applicant for leave to amend his
Notice of Appeal, respondent
did not oppose the application
so the Court of Appeal granted,
When the respondent was served
with the written submission he
objected to it and filed a
motion in the Court of Appeal
praying for it to be struck out
on the ground that it was filed
after 21 days of the service of
Form 6. That application was
heard and dismissed The court of
appeal in its ruling agreed with
respondent that the written
submission was filed out of time
but decided that it would
nevertheless exercise its
discretion to waive the
non-compliance and admit the
written submission. It is
against that ruling of the Court
of Appeal dated 27th
January, 2016 that this
interlocutory appeal has been
brought to this court.
HELD
We are in no doubt that the
Court of Appeal exercised its
discretion judicially as there
was adequate material upon which
it acted. Respondent says the
court ought to have taken into
account the provisions of Rule
20 (1) and (2) of C.I. 19 in
exercising its discretion. But
his whole application at the
Court of Appeal was premised on
that rule and it is the
non-compliance with Rule 20 (1)
that the court waived. It is
thus ridiculous for respondent
to say the court did not take
into account the very rule he
relied on. That argument may
only be because lawyer for
respondent based his case on the
repealed Sub-Rule 2 of Rule 20
of C.I. 19. We find no merit in
the appeal and we dismiss same.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules, 1997
(C.I.19).
Court of Appeal (Amendment)
Rules 1999, (C.I. 25)
CASES REFERRED TO IN JUDGMENT
Crentsil v Crentsil [1962] 2 GLR
171,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL
KWAKU YEBOAH APPIAH FOR THE
INTERESTED PARTY APPELLANT
HUMPHREY MODZAKA FOR THE
APPELLANT/RESPONDENT
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RULING
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PWAMANG, JSC.
The facts giving rise to this
interlocutory appeal are not in
dispute. On 18th May
2015 the High Court, Kumasi
dismissed an application for
Judicial Review file by
applicant/appellant/respondent/respondent,
hereafter to be referred to as
“applicant”. Being
dissatisfied, he filed an appeal
to the Court of Appeal. On 5th
October, 2015 applicant was
served with Form 6 that is the
notice of transmission of the
record of appeal to the Court of
Appeal. Applicant failed to file
his
written submissions within 21
days as required by the rules.
Nonetheless, on 18th
November, 2015 the Court of
Appeal heard an application
filed by applicant for leave to
amend his Notice of Appeal. The
interested
party/respondent/applicant/appellant,
hereafter to be referred to as
“respondent”, did not oppose the
application so the Court of
Appeal granted it and gave
applicant up to 26th
November, 2015 to file the
pursuant Amended Notice of
Appeal. Thereafter applicant
filed his written submission on
15th December, 2015.
When the respondent was served
with the written submission he
objected to it and filed a
motion in the Court of Appeal
praying for it to be struck out
on the ground that it was filed
after 21 days of the service of
Form 6 on applicant. That
application was heard and
dismissed by the Court of Appeal
on 27th January,
2016. The court of appeal in its
ruling agreed with respondent
that the written submission was
filed out of time but decided
that it would nevertheless
exercise its discretion to waive
the non-compliance and admit the
written submission. It is
against that ruling of the Court
of Appeal dated 27th
January, 2016 that this
interlocutory appeal has been
brought to this court.
It is trite learning that an
appeal is by way of rehearing,
which means an appellate court
is required to peruse the whole
record of appeal and form its
own opinion as to whether the
findings and conclusions of the
court below were justified
having regard to the evidence
and the applicable law.
At page 12 of his statement of
case filed in this court, the
respondent stated as follows;
“Even though the court of appeal
exercised its discretion, the
discretion, with the utmost
respect was wrongly exercised.
The exercise was not in
accordance with law. In
exercising its discretion in
favour of the applicant, the
court of appeal ought to have
had consideration for rule 20
(1) and (2) of C.I.19. The
decision of the Court of Appeal
to rather reward a party who has
flagrantly violated express
provisions without any apology
whatsoever.”
Respondent’s lawyer based his
arguments on Sub-Rule 2 of Rule
20 as it was stated in the Court
of Appeal Rules, 1997 (C.I.19).
But Rule 20 (1) and (2) have
been amended by the Court of
Appeal (Amendment) Rules 1999,
(C.I. 25) which removed the
automatic striking out of
appeals upon failure to file
written submission within 21
days. C.I.25 gives the court a
discretion, if the appellant
fails to file written submission
within 21 days, whether to
strike out or not.
Therefore this charge against
the exercise of discretion by
the Court of Appeal is
misconceived. The court
exercised its discretion on the
basis of evidence that was
placed before it. Applicant’s
lawyer in arguing against the
motion to strike out at the
Court of Appeal applied to the
court to exercise its discretion
and waive the non-compliance by
reason of matters deposed to at
Paragraphs 7 of his affidavit in
opposition to the motion.
Paragraph 7 is as follows;
“7. Consequently, as I am now
advised and verily belief , the
interested Party’s motion for
striking out my written
submission is based on the sole
ground that it was filed one day
late (after a short period of my
Counsel’s intervening
indisposition as aforesaid), and
without showing anything at all
on the merits against my written
submission which has raised
several crucial issues of
capacity, res judicata, breach
of the constitution by wrongful
assumption of legislative power
and breach of the High Court
rule as to discovery as against
the Respondent Kumasi
Traditional Council and the
Interested Party jointly and
severally, to say nothing of the
breach of the rules of natural
justice on the part of the
learned judge.”
So it is on the basis of the
above matters that the court of
appeal exercised its discretion,
which respondent has conceded,
it had in the matter. Where a
court has a discretion to
exercise in any matter, it is
required to exercise it
judicially and unless it is
shown that it did not act
judicially, an appellate court
will not interfere with its
decision. In Crentsil v
Crentsil [1962] 2 GLR 171,
at page 175 the Supreme Court
held as follows with regard to
appeals against the exercise of
discretion;
‘In Blunt v. Blunt where the
judgment of the House of Lords
on appeal from the Court of
Appeal was delivered by Viscount
Simon, L.C. it was held that:
"An appeal against the exercise
of the court's discretion can
only succeed on the ground that
the discretion was exercised on
wrong or inadequate materials if
it can be shown that the court
acted under a misapprehension of
fact, in that it either gave
weight to irrelevant or unproved
matters or omitted to take
relevant matter into account;
but the appeal is not from the
discretion of the court to the
discretion of the appellate
tribunal."’
We are in no doubt that the
Court of Appeal exercised its
discretion judicially as there
was adequate material upon which
it acted. Respondent says the
court ought to have taken into
account the provisions of Rule
20 (1) and (2) of C.I. 19 in
exercising its discretion. But
his whole application at the
Court of Appeal was premised on
that rule and it is the
non-compliance with Rule 20 (1)
that the court waived. It is
thus ridiculous for respondent
to say the court did not take
into account the very rule he
relied on. That argument may
only be because lawyer for
respondent based his case on the
repealed Sub-Rule 2 of Rule 20
of C.I. 19.
We find no merit in the appeal
and we dismiss same.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
KWAKU YEBOAH APPIAH FOR THE
INTERESTED PARTY APPELLANT
HUMPHREY MODZAKA FOR THE
APPELLANT/RESPONDENT
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