J U D G M E N T
ANIN YEBOAH, J.S.C:-
This is an appeal against the
striking out of an appeal and
failure to relist same by the
Court of appeal. The facts
which appear to be simple are
that the appellant was a
Co-defendant in a case which was
heard before the High Court,
Tema. The judgment in the case
was delivered on 11/10/2001 and
the appellant who felt aggrieved
by the judgment filed an appeal
on the 2/11/2001.
As enjoined by procedural rules
of the court, the appellant and
the respondent herein were
invited by the registrar of the
High Court to settle records for
the appeal. The parties herein
did not appear before the
registrar of the Tema High Court
on 21st of January
2005 to settle the records by
themselves. The solicitor for
the respondent, however, wrote a
letter to the registrar and
listed the documents and
evidence which he wanted to
constitute the record for the
purposes of the appeal. The
appellant’s solicitor sent a law
clerk in the person of Benjamin
Addey Tettey to represent the
solicitor for the appellant. He
also requested that all the
processes so far filed and the
entire record and evidence be
compiled to form the record for
the appeal. The Registrar then
proceeded to list the conditions
of appeal which is reproduced
for a fuller record:
Registrar Conditions:
1.
The Appellants to deposit the
sum of ¢500,000.00 towards the
preparation of the records.
2.
To deposit the sum of Two
million Cedis (¢2,000,000.00)
into court towards costs on
appeal or in lieu of payment
enter into bond for the costs in
like sum with one surety.
3.
Appellants are to pay the bills
of binding the record of appeal
after typing and photocopying of
the relevant documents
4.
The above conditions to be
fulfilled with one month from
today.
J.N. NYAGBLODZRO
HIGH COURT REGISTRAR
The record shows clearly that on
26/01/05 the appellant indeed
paid the deposit of ¢500,000.00
in compliance with the first
condition set out above. He,
however, did not satisfy the
condition set out in paragraph 3
thereof. It however, turned out
that the appellant later went to
the Registrar to demand his
deposit on instructions of his
solicitor. It is not clear
whether the other condition set
out in paragraph 2 thereof was
fulfilled. On 27.10.2005,
counsel for the Respondent wrote
to the trial court registrar
demanding to know whether indeed
the appellant had on
instructions of his solicitor
withdrawn the deposit he paid as
part of the fulfillment of the
conditions of appeal.
Counsel for the respondent
herein in the said letter
threatened to report the conduct
of the solicitor for the
respondent to the Chief Justice
for causing the withdrawal of
the deposit. The reply to the
letter from the registrar of the
Tema High Court dated the
1/11/2005, however stated that
the appellant had not withdrawn
the ¢500,000.00 deposit he had
paid but had withdrawn an
amount of ¢150,000.00 which
he paid as part – payment for
the preparation of the binding
and photocopying which the
registrar had fixed at
¢600.00. No further payment was
made and the registrar of the
trial court on 8/11/05 issued a
Certificate of Non-Compliance
and addressed same to the Court
of Appeal for striking out of
the appeal.
On 4/4/2006, the Certificate of
Non-Compliance was listed before
the Court of Appeal for striking
out. Both the appellant and his
counsel, Mr. J.O.Amui were
present in court. The Court of
Appeal, basing itself obviously
on the Certificate of Non-
Compliance struck out the appeal
with cost of ¢2,000,000.000. On
3/7/07, the appellant and his
solicitor appeared before the
Court of Appeal this time to
relist the appeal which was
struck out on 4/4/2006. The
Court of Appeal found no merit
in the application for
relistment and proceeded to
accordingly dismiss same. The
refusal of the Court of Appeal
to relist the appeal has
culminated in this appeal to
this court. Before this court,
learned counsel has filed two
grounds of appeal which were
argued together in the statement
of case filed pursuant to the
appeal.
Learned counsel for the
appellant has urged on this
court that as the appellant had
subsequent to the striking out
complied with the conditions and
the record of proceedings was
ready at the time of the
relistment, the court of appeal
was in error in refusing to
relist this appeal. It was
therefore submitted that the
appeal be allowed and the same
restored to the list for
determination on the merits.
It must be pointed out that all
appeals are statutorily
conferred on the courts
exercising appellate
jurisdiction. Under every rule
governing appeals, the trial
courts and courts where appeals
emanate impose conditions on any
appellant to be fulfilled before
the appeals are listed for
hearing. As this appeal was
before the Court of Appeal, the
appellant was duty bound to
fulfill the conditions of appeal
imposed on him by the High
Court, Tema. This is clearly in
compliance with section 11(7) of
the Courts Act, Act 459 of 1993
which states as follows:
“(7) The Court of Appeal
shall not entertain any appeal
unless the appellant has
fulfilled all the conditions
prescribed in that behalf by the
Rules of Court”
It has not been argued that at
the time the striking out was
done the appellant had fulfilled
all the conditions of appeal and
therefore was irregularly
visited with striking out. The
record shows that he was present
with his counsel and raised no
objection whatsoever before his
appeal was struck out.
In my opinion, if the appellant
after the striking out was
anxious to have his appeal heard
he could only do so by
satisfying the Courts of Appeal
Rules , Rule 18(3) of 1997 CI
19. The discretion to restore
an appeal to the list is vested
in the Appellate Court which
struck out the appeal. If the
discretion was fairly exercised
after taking all the
circumstances of the case into
consideration this appellate
court should not substitute its
own discretion for the Court of
Appeal. It was held in the case
of ADJOWEI V YIADOM II &
ORS [1970] CC 51 that
“where there has been a failure
to comply with the conditions of
the appeal imposed by a lower
court, the Court of Appeal by
virtue of LI 210 r 19(1) has a
discretion either to dismiss the
appeal or to make such order as
would advance the course of
justice. Even where the
appeal has been actually
dismissed the Court of Appeal
can still restore it upon terms
as it thinks fit by virtue of LI
218 r 19(3).”
In my opinion, Rule 18(3) of the
current Court of Appeal rules is
substantially the same as the
Rule 19(3) of LI 218 which was
repealed by CI 19 of 1997.
In this appeal, there is no
material before this court that
the discretion imposed on the
Court of Appeal by Rule 18(3)
was not fairly exercised which
would have amounted to failure
to do justice. The evidence
rather disclosed before their
lordships that it took the
appellant almost thirteen months
after the striking out to make
any attempt to have the appeal
restored. He also did not offer
any convincing explanation in
his affidavit to raise any
reasonable excuse in his favour.
Even though the Constitution
1992 and the Courts Act of 1993
confers statutory right on the
appellant to appeal as of right,
his statutory rights to appeal
is regulated by the rules of
court out of which the
conditions were imposed on him
to fulfill. If on the facts an
appellant has failed to comply
with the rules regulating the
appeal, irrespective of the
statutory rights conferred on
the appellant by the
Constitution and the Courts Act,
and notwithstanding the merits
of the appeal, an appellate
court will not proceed to hear
the appeal. Francois JA (as he
then was) expressed similar
views in KARLETSE – PANIN
V NURO [1979] GLR CA at
209 as follows:
“Numerous decisions have settled
conclusively that the merits
notwithstanding, if an appellant
fails to avail himself of a
statutory dispensation to appeal
within the time limited or
abide by rules regulating the
appeal he would be forever
barred from re-litigating his
cause”
The learned judge continued in
his judgment at the same page to
conclude on this point as
follows:
“In such an event, the court is
not called upon to view the
hardships that might flow in
consequence. It may be said
that the court’s judicial vision
is circumscribed by statutory
blinkers”
Even though the appellant may on
the merits have a case,
statutory provisions regulating
appeals in this country, though
subsidiary in nature when
flouted or ignored can in
appropriate cases deny a
litigant his inherent right to
exercise his constitutional
right of appeal.
In my opinion, the conduct of
the appellant was such that the
Court of Appeal was right in
refusing to restore his appeal
to the list for the hearing of
her appeal on the merits. I will
therefore dismiss this appeal.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
S.A BROBBEY
( JUSTICE OF THE SUPREME COURT)
I agree
DR. DATE-BAH
( JUSTICE OF THE SUPREME COURT)
I
agree
S. O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I agree
J. V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
J. O. AMUI FOR THE 2ND
CO-DEFENDANT APPELLANT.
T. A. NELSON COFIE FOR THE
RESPONDENT.
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