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Courts – Court of Appeal –
Appeal – Notice of hearing of
appeal – Parties to ascertain
notice of hearing from court
notice board.
Practice and procedure – Appeal
– Relistment – Discretion –
Appeal dismissed for
non-fulfillment of conditions of
appeal – Applicant fulfilling
conditions belatedly and
applying to relist appeal –
Application belated, not
disclosing good grounds and
lacking in candour – Application
declined.
The applicants applied for an
order to restore their appeal
which was dismissed by the Court
of Appeal and for extension of
time to fulfill the conditions
of appeal. They urged that they
were not notified of the
forwarding of the record of
appeal to the Court of Appeal or
the hearing of the appeal; that
they could not fulfilled the
conditions of appeal belatedly
because the court docket was
missing. The respondents’
counsel argued that the delay on
the part of the applicants was
willful and controverted the
allegation that the docket got
missing. He submitted that the
applicants having appealed and
obtained a stay of execution of
the judgment against them in the
court below, did nothing in the
matter until the respondents
applied to set aside the order
for stay of execution.
Held:
(1) as regards the complaint by
the applicants that the hearing
notice for the appeal was not
served on them, it was their
duty to ascertain from the
notice board the date for
hearing. No hearing notice is
served in the circumstance.
(2) The applicants had
not shown good reason for the
exercise of the court’s
discretion in their favour. The
court would rely on the
certificate on the docket that
the applicants had not fulfilled
the conditions of appeal rather
than believe the depositions in
their supporting affidavit. The
court was satisfied that if the
respondents had not applied to
set aside the order staying
execution, the applicants would
have remained indolent.
APPLICATION to the Court of
Appeal to relist appeal.
Kye
for the applicant.
Kornor
for the respondent.
AMUAH JA.
This is an application by the
plaintiffs-applicants for an
order restoring the appeal which
was dismissed by the court on 10
December 1991 and for leave for
extension of time within which
to fulfill the conditions of
appeal. The grounds upon which
the application is based are set
out in an accompanying
affidavit.
Learned counsel for the
plaintiffs-appellants submitted
that his clients were not served
with a hearing notice for the
appeal. He contended that even
though his clients were not
present at the settlement of the
records in May 1991 they would
have fulfilled the conditions
but for the loss of the docket
which was misplaced by late Mr
Teiman. After his death, Mr
Bentil, the Deputy Chief
Registrar, ordered a fresh
docket to be opened and the
registry accepted payment of the
sum of ¢5,000 and on the 8
November 1991, a cheque in the
sum of ¢300,000 in lieu of the
bond. He further contended that
his clients have never been
given notice that the record of
appeal has been forwarded to the
Court of Appeal.
In reply, learned counsel for
the defendants-respondents, Mr
Kornor argued that the
application was brought under
rule 19 (3) of LI 218 and rule
64 and that the applicants had
not shown good and sufficient
cause for which the court's
discretion should be exercised
in their favour. He further
contended that the failure on
the part of the
plaintiffs-applicants to fulfill
the conditions of appeal was
willful. He submitted that
although the record of appeal
was settled without the
plaintiffs-applicants, they were
aware of the date for the
settlement and that the
conditions should have been
complied with by 31 July 1991,
after judgment had been obtained
against the plaintiffs. The
appellants however filed a
notice of appeal and applied to
the High Court for stay of
execution. When they succeeded
in obtaining the order they did
not pursue the matter again
until the defendants-respondents
applied to the court to have the
order of stay set aside. It was
only after the service of the
application on the applicants
herein that they wrote exhibit A
on 4 November 1991. He submitted
that late Mr Teiman did his work
efficiently and that there was
no letter from the registry to
the effect that the docket got
lost. The cheque, exhibit B,
which the plaintiffs-applicants
paid to the registry on 23
December 1991, was “a belated
attempt to throw dust into the
eyes of the court.” He concluded
by saying that there is an
implied covenant in the head
lease not to assign or sublet
and the plaintiffs-applicants
are avoiding it.
On our part we have heard
arguments from both sides. We
have the certificate of late Mr.
Teiman on record to show that
the conditions of appeal were
not fulfilled at the time this
court dismissed the appeal for
non-fulfillment of the
conditions. We believe the court
record rather than the
depositions made by the
applicants in their affidavit.
We are satisfied that if the
respondents had not come to
court asking for an order to set
aside the order for stay of
execution, the applicants would
have continued to sit with their
hands in their laps.
As regards the complaint by the
applicants that the hearing
notice for the appeal was not
served on them, it was their
responsibility to go to the
notice board and find out when
the appeal was scheduled for
hearing. No hearing notice is
served in the circumstance.
Finally, we are of the opinion
that the applicants willfully
refused to fulfill the
conditions of appeal and that
they have not shown good reason
why the court should exercise
its discretion in their favour.
The application will be
dismissed.
OFORI-BOATENG JA. (sgd)
FORSTER JA. (sgd)
Application dismissed.
S Kwami Tetteh, Legal
Practitioner |
