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Practice and Procedure -
Non-compliance with conditions
of appeal- R 18 of the Court of
Appeal Rules, 1997 (C.I.19
HEADNOTES
On 27/10/2010 the appellant's
appeal against the judgment of
the High Court filed on
31/1/2002 was struck out by the
Court of Appeal for
non-compliance under R 18(1) of
C.I 19. - Whether signed bond for the
appeal but had not paid for
photocopies and binding. did not
satisfy that he had indeed
fulfilled the conditions of the
appeal -
He applied pursuant to R 18(3)
of C.I. 19 for the restoration
of his appeal for it to be
determined on the merits but on
13/12/2011 the Court of Appeal
refused his application. From
the record before us, it is
apparent that at the hearing of
the application to restore the
appeal, there was conflicting
evidence from the searches
conducted by the parties as to
whether the appellant had
complied with the conditions of
appeal as he claimed in his
affidavit in support of his
application. Whereas a search
conducted by the appellant
stated that there was no record
of the settlement of the
records, that of the respondent
conducted on 22/2/07 indicated
that the appellant had signed
the bond for the appeal but had
not paid for photocopies and
binding. The Court of appeal
held that appellant did not
satisfy them that he had indeed
fulfilled the conditions of the
appeal at the time the appeal
was struck out so on that ground
they refused the application to
restore the appeal.
HELD :-
It appears to us that the Court
of Appeal did not advert their
mind to the full ambit of R18(3)
of C.I.19 which confers a
discretion on the court to grant
restoration of appeals which are
dismissed even where the
appellant did not as a matter of
fact fulfil the conditions of
appeal. We are of the view that
if they did their approach to
appellant's application would
have been different. Because
this matter has been pending for
a long time we have decided to
assume the jurisdiction of the
Court of Appeal pursuant to
Article 129(4) of the
Constitution and determine the
application for restoration of
the appeal. Our view of the
matter is that since the
appellant filed his Notice of
Appeal on time, in fact 2 days
after the decision of the High
Court, and the search by the
respondent indicates that he at
least fulfilled part of the
conditions of appeal, his
constitutional right to appeal
should not be taken away
completely. In the
circumstances, we allow the
appeal and restore the Appeal
filed on 31/1/2002 against the
judgment of the Court of High
Court dated 29/1/2002. Since it
appears that the records of the
High Court are not in order, we
direct the Registrar of the High
Court to issue fresh summons to
settle the records of the appeal
subject to fresh conditions to
be fulfilled by the appellant.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules, 1997
(C.I.19) R 18
CASES
REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
PWAMANG, JSC:-
COUNSEL.
A.A.SOMUAH-ASAMOAH FOR THE
DEFENDANT/ APPELLANT/ APPLICANT/
APPELLANT.
GEORGE NARH FOR THE PLAINTIFF/
RESPONDENT/ RESPONDENT/
RESPONDENT.
JUDGMENT
PWAMANG, JSC:-
R 18 of the Court of
Appeal Rules, 1997 (C.I.19)
provides as follows;
18. Non-compliance with
conditions of appeal
(1) Where the appellant has not
complied with any of the
requirements of rules 1.1 (4),
12 or 1.3 the Registrar of the
court below shall certify these
facts to tile Court, which may
then order that tile appeal be
dismissed with or without costs.
,
(2) If the respondent alleges
that the appellant has failed to
comply with a part of the
requirements of rules 11(4), 12
or 13 and tile Court, is
satisfied that tile appellant
has so failed, it may dismiss
the appeal for want of
prosecution or make such other
order as the justice of the case
may require.
(3) An appellant whose appeal
has been dismissed under this
rule may apply by motion on
notice that his appeal be
restored, and the Court may
order that tile appeal be
restored upon such terms as it
may think fit.
(4) A certificate of
non-compliance of conditions
imposed upon a would be
appellant shall be in Form 11 in
Part I of the Schedule.
On 27/10/2010 the
appellant's appeal against the
judgment of the High Court filed
on 31/1/2002 was struck out by
the Court of Appeal for
non-compliance under R 18(1) of
C.I 19. He applied pursuant to R
18(3) of C.I. 19 for the
restoration of his appeal for it
to be determined on the merits
but on 13/12/2011 the Court of
Appeal refused his application.
From the record before us, it is
apparent that at the hearing of
the application to restore the
appeal, there was conflicting
evidence from the searches
conducted by the parties as to
whether the appellant had
complied with the conditions of
appeal as he claimed in his
affidavit in support of his
application. Whereas a search
conducted by the appellant
stated that there was no record
of the settlement of the
records, that of the respondent
conducted on 22/2/07 indicated
that the appellant had signed
the bond for the appeal but had
not paid for photocopies and
binding. The Court of appeal
held that appellant did not
satisfy them that he had indeed
fulfilled the conditions of the
appeal at the time the appeal
was struck out so on that ground
they refused the application to
restore the appeal.
It appears to us that the
Court of Appeal did not advert
their mind to the full ambit of
R18(3) of C.I.19 which confers a
discretion on the court to grant
restoration of appeals which are
dismissed even where the
appellant did not as a matter of
fact fulfil the conditions of
appeal. We are of the view that
if they did their approach to
appellant's application would
have been different. Because
this matter has been pending for
a long time we have decided to
assume the jurisdiction of the
Court of Appeal pursuant to
Article 129(4) of the
Constitution and determine the
application for restoration of
the appeal. Our view of the
matter is that since the
appellant filed his Notice of
Appeal on time, in fact 2 days
after the decision of the High
Court, and the search by the
respondent indicates that he at
least fulfilled part of the
conditions of appeal, his
constitutional right to appeal
should not be taken away
completely. In the
circumstances, we allow the
appeal and restore the Appeal
filed on 31/1/2002 against the
judgment of the Court of High
Court dated 29/1/2002. Since it
appears that the records of the
High Court are not in order, we
direct the Registrar of the High
Court to issue fresh summons to
settle the records of the appeal
subject to fresh conditions to
be fulfilled by the appellant.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
A.A.SOMUAH-ASAMOAH FOR THE
DEFENDANT/APPELLANT/APPLICANT/
APPELLANT.
GEORGE NARH FOR THE
PLAINTIFF/ RESPONDENT/
RESPONDENT/ RESPONDENT.
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