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Practice and Procedure – Civil
Procedure -
Failure to file his written
submissions within 21 days -
Non-Compliance under Rule -
Motion for extension -
Non-service of an affidavit in
opposition - Interpretation and
application of court rules
HEADNOTES
The defendant) filed an appeal
in the Court of Appeal against a
decision of the High Court dated
21st October, 2014.
When the record of the appeal
was ready he was served with
Civil Form 6 notifying him
accordingly. However, he
failed to
file his written submissions
within 21
days of the service on him
of the Form 6 as required by the
rule so the registrar issued a
certificate of
Non-Compliance under Rule
20(2) and listed the appeal upon
a summons before the Court of
Appeal for the court to decide
whether to strike it out. About
the same time, the defendant
filed a
motion under Rule 20(1) for
extension of the 21 days for
him to file his written
submissions. The registrar
listed the summons for
non-compliance and the motion
for extension of time before the
same panel on the same day. The
summons for non-compliance was
called first and adjourned
sine die on ground of
non-service of an affidavit in
opposition on the
plaintiff/respondent/respondent/appellant
(the plaintiff). After the
summons was adjourned the
application for extension of
time was called but the
plaintiff’s counsel objected to
the court hearing the
application arguing that it has
to be adjourned to abide the
decision of the court on the
summons for non-compliance. The
court overruled the objection,
heard the application and
granted defendant extended time
to file his written submissions.
Aggrieved by the decision of the
Court of Appeal the plaintiff
lodged the instant interlocutory
appeal. The plaintiff
submits that the summons for
Non-Compliance must be heard
first and if the court, in
exercise of its discretion
decides not to strike out the
appeal, then and only then can
the court hear the application
for extension of time. But if
the court strikes out the appeal
for non-compliance, then the
application for extension of
time would be rendered moot.
HELD
our view is that, in this case,
the Court of Appeal did not err
but applied Rule 20 correctly to
the proceedings before them when
they heard the application for
extension of time to file
written submissions at the time
that they had knowledge of the
pendency of the summons to
strike out the appeal for
non-compliance. Consequently we
dismiss the appeal on this
ground, the Court of Appeal
exercised its discretion
judicially by granting the
defendant’s application for
extension of time. The Court of
Appeal in their ruling stated
that they gave due consideration
to the arguments of the
plaintiff in opposition to the
application before deciding to
grant it and they awarded costs
against the defendant in favour
of the plaintiff. Nothing has
been pointed out to us by the
plaintiff to convince us that
this was not a proper case in
which extension of time ought to
have been granted. The extension
of time to file the written
submissions would enable the
court to determine the main
appeal on its merits. In the
circumstances, we dismiss the
appeal on this ground too. In
conclusion, the appeal fails and
is dismissed.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules, 1997
(C.I.19) (as amended by C.I.21
and C.I.25)
CASES REFERRED TO IN JUDGMENT
Quarmyne V Afeyesi [1984-86] 2
GLR 430
Evans v. Bartlam [1937] A.C. 473
Mathew Tawiah Aryeetey V Social
Security and National Insurance
Trust; Suti No. J4/29/2013
Republic V Court of Appeal; Ex
parte Ghana Chartered Institute
of Bankers [2011] 2 SCGLR 940
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG JSC:-
COUNSEL
MOHAMMED SAHNOON FOR THE
PLAINTIFF/ RESPONDENT/
RESPONDENT/ APPELLANT.
KWESI AUSTIN FOR THE 1ST
TO 9TH AND 11TH
TO 20TH DEFENDANTS/
APPELLANTS/ RESPONDENTS/
RESPONDENTS.
NII KPAKPO SAMOA ADDO FOR THE 10TH
DEFENDANT/ APPELLANT/ APPILCANT/RESPONDENT.
PWAMANG JSC:-
It is provided under Rule 20 of
the
Court of Appeal Rules, 1997
(C.I.19) (as amended by C.I.21
and C.I.25) as follows;
20. Written submission
(1) An appellant shall within
21 days of being notified in
Form 6 set out in Part I of the
Schedule that the record is
ready, or within such time as
the Court may upon terms direct,
file with the Registrar a
written submission of his case
based on the grounds of appeal
set out in the notice of appeal
and such other grounds of appeal
as he may file.
(2) Where the appellant does not
file the statement of his case
in accordance with subrule (1),
the Registrar shall certify the
failure to the Court by a
certificate as in Form 11A in
Part I of the Schedule and the
Court may upon that order the
appeal to be struck out.
The
defendant/appellant/applicant/respondent
(the defendant) filed an appeal
in the Court of Appeal against a
decision of the High Court dated
21st October, 2014.
When the record of the appeal
was ready he was served with
Civil Form 6 notifying him
accordingly. However, he failed
to file his written submissions
within 21 days of the service on
him of the Form 6 as required by
the rule so the registrar issued
a certificate of Non-Compliance
under Rule 20(2) and listed the
appeal upon a summons before the
Court of Appeal for the court to
decide whether to strike it out.
About the same time, the
defendant filed a motion under
Rule 20(1) for extension of the
21 days for him to file his
written submissions. The
registrar listed the summons for
non-compliance and the motion
for extension of time before the
same panel on the same day. The
summons for non-compliance was
called first and adjourned
sine die on ground of
non-service of an affidavit in
opposition on the
plaintiff/respondent/respondent/appellant
(the plaintiff). After the
summons was adjourned the
application for extension of
time was called but the
plaintiff’s counsel objected to
the court hearing the
application arguing that it has
to be adjourned to abide the
decision of the court on the
summons for non-compliance. The
court overruled the objection,
heard the application and
granted defendant extended time
to file his written submissions.
Aggrieved by the decision of the
Court of Appeal the plaintiff
lodged the instant interlocutory
appeal.
In its statement of case the
plaintiff contends, that once a
Certificate of Non-Compliance
issued pursuant to Rule 20(2) of
C.I.19 (as amended) comes to the
attention of the Court of
Appeal, the court cannot
entertain an application by the
appellant who is in default for
extension of time to file her
written submissions.
The
plaintiff submits that the
summons for Non-Compliance must
be heard first and if the court,
in exercise of its discretion
decides not to strike out the
appeal, then and only then can
the court hear the application
for extension of time. But if
the court strikes out the appeal
for non-compliance, then the
application for extension of
time would be rendered moot.
The justification posited by the
plaintiff for its view that
priority ought to be given to
hearing of the summons for
Non-Compliance is, that hearing
the application for extension of
time before the summons for
non-compliance would “stultify”
the summons and render the
sanction in Rule 20(2) of C.I.19
for non-compliance ineffective.
The plaintiff submits that its
preferred order for hearing the
two applications will make the
rule to bite and compel
appellants to comply with the
time limitation for filing
written submissions.
While we appreciate the
plaintiff’s submission that
courts are required to enforce
sanctions provided for in their
rules of procedure in order to
engender strict compliance with
the rules, it is equally the
policy of the law that it is in
the best interest of justice
that disputes that come before
the courts, as far as possible,
ought not to be decided on the
basis of default by one party to
comply with rules of procedure
but on their merits. In the
case of
Quarmyne V Afeyesi [1984-86]
2 GLR 430 at 435 the
Court of Appeal approved of the
following statement by Lord
Atkin in
Evans v. Bartlam [1937] A.C.
473 at 480:
"The principle obviously is that
unless and until the court has
pronounced a judgment upon the
merits or by consent, it is to
have the power to revoke the
expression of its coercive power
where that has only been
obtained by a failure to follow
any of the rules of procedure."
It is for this reason that rules
of court normally provide that a
party in default may apply for
relief from the court unless the
matter has been determined on
the merits. But where the court
grants relief against default of
rules of procedure, the party in
default is usually still
sanctioned by the award of costs
and/or other conditions imposed
on her as provided for in Rule
20(1). This way the court is
enabled to strike a balance
between the policy objectives of
ensuring the resolution of
disputes on their merits and
sanctioning litigants for
breaches of rules of procedure.
It ought to be noted that the
original Rule 20 of C.I.19
provided that upon failure by an
appellant to file written
submissions within the time
provided for doing so, the
appeal was to be deemed struck
out.
The old Rule 20(2) was as
follows;
(2) Where the appellant does not
file the statement of his case
in accordance with subrule (1),
the appeal shall be considered
to have been struck out and the
Registrar shall inform the
parties accordingly.
The court had no discretion in
the matter and the time could
not be extended. That provision
debarred the Court of Appeal,
even in appropriate cases, from
making orders that would
facilitate an early
determination of an appeal on
the merits. This necessitated
the amendments effected by
C.I.21 and C.I.25 which now
allow for extension of the time
for filing the written
submissions and the court is
given discretion as to whether
or not to strike out the appeal
for non-compliance with the time
for filing written submissions.
In any event, it must be noted
that under both the original
rule 20(2) and the amendments,
the legal consequence of failure
to file the written submissions
within time is for the appeal to
be “struck out”. That, by the
well-settled practice of the
courts, means that such appeal
can be re-listed on justifiable
grounds. See the unreported
Supreme Court case of
Mathew
Tawiah Aryeetey V Social
Security and National Insurance
Trust; Suti No. J4/29/2013.
So, to accede to the plaintiff’s
preferred order of priority for
hearing a summons for
non-compliance and an
application for extension of
time under Rule 20 of C.I.19 (as
amended) when they are pending
contemporaneously, the result
would be that the Court of
Appeal may strike out the appeal
on hearing the summons for
non-compliance, and by reason of
that striking out, the motion
for extension of time would
become moot. Then afterwards,
the appellant can file an
application to re-list the
appeal and apply for leave to
file the written submissions.
What this means is, that going
by the order of priority being
urged on the court by the
plaintiff, an appellant in
default can still arrive at the
point where her application for
extension of time to file
written submissions would be
entertained by the court, except
that it would be through a
lengthy and more expensive
procedure. It appears to us that
it is this very mischief that
C.I.21 and C.I.25 were enacted
to cure. Meanwhile, until the
court has struck out the appeal,
it is still pending and the
court has jurisdiction to
entertain an application
premised on it. See the case of
Republic V Court of Appeal; Ex
parte Ghana Chartered Institute
of Bankers [2011] 2 SCGLR 940.
If the concern is to sanction an
appellant for default in filing
her written submissions, as
argued by the plaintiff, this
can be achieved by the award of
appropriate costs against a
defaulting appellant.
The modern approach to the
interpretation and application
of court rules of procedure
is to avoid their construction
and application in a manner that
creates inconvenience or
occasions avoidable delay and
expense to litigants. But that
would be the result if we accept
the order of priority being
insisted upon by the plaintiff.
In our opinion, upon a proper
interpretation of Rule 20 of
C.I. 19 (as amended) as a whole,
where two applications under
rule 20 (1) and (2) are pending
before the Court of Appeal
contemporaneously, one for
extension of time to file
written submissions and the
other a summons for
non-compliance with the time
provided for filing written
submissions, the Court of Appeal
shall give priority to the
application for extension of
time and determine that
application first, and the
hearing of the summons for
non-compliance shall abide the
decision on the application for
extension of time. To construe
the rule otherwise would cause
avoidable delay and expense to
the parties and return to the
practice of the court in the
days before C.I.21 and C.I.25
where the appeal was
automatically struck out and
then an appellant would apply
for re-listment and for leave to
file written submissions. But we
must not be understood to imply
that the application for
extension of time shall always
be granted because it is to be
heard first. It has to be
determined on its merits on a
case by case basis and where no
good grounds have been provided
by the applicant for its grant,
it may be refused and the
summons for non-compliance
determined. Our interpretation
does not do away with the
sanction of striking out for
non-compliance provided for in
the rule. What it does is to
reserve it for only situations
where an appellant in default
fails to take advantage of Rule
20(1) to apply timeously for
extension of time or where the
circumstances of her default
plainly warrant her appeal being
struck out.
Having construed the rule thus,
our view
is that, in this case, the Court
of Appeal did not err but
applied Rule 20 correctly to the
proceedings before them when
they heard the application for
extension of time to file
written submissions at the time
that they had knowledge of the
pendency of the summons to
strike out the appeal for
non-compliance. Consequently we
dismiss the appeal on this
ground.
The next issue that arises in
this interlocutory appeal is
whether on the facts of this
case, the
Court of Appeal exercised its
discretion judicially by
granting the defendant’s
application for extension of
time. The Court of Appeal in
their ruling stated that they
gave due consideration to the
arguments of the plaintiff in
opposition to the application
before deciding to grant it and
they awarded costs against the
defendant in favour of the
plaintiff. Nothing has been
pointed out to us by the
plaintiff to convince us that
this was not a proper case in
which extension of time ought to
have been granted. The extension
of time to file the written
submissions would enable the
court to determine the main
appeal on its merits. In the
circumstances, we dismiss the
appeal on this ground too.
In conclusion, the appeal fails
and is dismissed.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(CHIEF JUSTICE)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME COURT)
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MOHAMMED SAHNOON FOR THE
PLAINTIFF/ RESPONDENT/
RESPONDENT/ APPELLANT.
KWESI AUSTIN FOR THE 1ST
TO 9TH AND 11TH
TO 20TH DEFENDANTS/
APPELLANTS/ RESPONDENTS/
RESPONDENTS.
NII KPAKPO SAMOA ADDO FOR THE 10TH
DEFENDANT/ APPELLANT/ APPILCANT/RESPONDENT. |
