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JUDGMENT

EDWARD WIREDU, J.S.C.:

The matter before us to which this opinion relates is supposed to be an appeal against an interlocutory order of the Judicial Committee of the National House of Chiefs.

The main issue raised for consideration by the Court is whether the Petitioners in this case who are complaining to be aggrieved by that decision have taken all the necessary steps as required by law to entitle them to a hearing?

To answer the above it must first be appreciated that the right to appeal against a decision of any lower court is conferred by Statute. In other words the right to appeal is not inherent in any litigant. It is a right conferred by statute. In like manner a courts jurisdiction to hear and determine an appeal is provided by statute.

In NYE V. NYE (1957) G.I.R. 78 at page 82 and 83 Akufo-Addo, C.J. (as he then was) had this to say

"it must be appreciated that there is no right of appeal in a litigant nor is there an inherent

power in any court to hear an appeal."

In the case of MOORE V. TAGOE 1934 2 W.A.C.A. 43 at 43 - 45 per Lord Atkin write:-

"it has to be remembered that appeals in this country and elsewhere exist mainly by statute and unless statutory conditions are fulfilled no jurisdiction is given to any court of justice to entertain them"

Lastly in SANDEMA NAB V. ASANGALISA 1996 - 97 S.C. S.G.L.R.R. 302 Supreme Court had this to say;—

"Now it must be appreciated that an appeal is a creature of statute ...... where a right of  appeal is conferred as of right or with leave the right is to be exercised within the four corners of the statute and the relevant procedural regulations and rules as the court will not have jurisdiction to grant deviations outside the parameters of the statute."

In the instant case the right to appeal from any decision a decision of the Judicial Committee of the National House of Chiefs lies to the Supreme Court. The Supreme Court derives its jurisdiction to hear appeals of this nature statutorily from the 1992 Constitution. The relevant provisions are

(a) Article 131(4) which provides that

"An appeal from a decision of the Judicial Committee .of the National House of Chiefs shall lie to the Supreme Court with the leave of the Judicial Committee or the Supreme Court. See also

(b) Article 273 (1) of the 1992 Constitution and Section 44 of the Courts Act 459.

Quite apart from the requirements of the Statutory provisions referred to above, there are also rules and regulations governing the procedure for bringing an appeal properly before this court.

In the instant case the Supreme Court rules 1996 (C.I. 16) is pertinent. It provides clear and unambiguous regulations which have to be complied with. These regulations are of two kinds, those that are fundamental and form the basic foundation or the subtratum of the appeal and those that can be described as mere irregularities or technicalities. It is the rules in the former category which when duly complied with, confer jurisdiction on the court. In other words this Supreme Court can only be seised with jurisdiction to hear an appeal when the appellant has fully complied with the former category of rules of practice which regulate the bringing of an appeal. See Merah vrs. Oknah (1984-86) 1 GLR 400 at 410.

Rules relevant to the present matter before us are

(a) Rules 6(1), 7(1) and 7(3). Rules 8(1)(a) and 8(3). Rule 6(1) of C.I. 16 provides that

"ANY appeal to the court in a civil cause or matter  shall be brought by NOTICE OF APPEAL in the FORM 1 set out in Part 1 of the SCHEDULE to these RULES and shall filed with the Registrar of the Court below."

(b) Rule 7(3) of C.I. 16 provides that

"Where leave to appeal is granted the appellant shall file a notice of appeal in accordance with the provisions of these rules."

(c) Rule 8(3) of C.I. 16 provides that

"A civil appeal is lodged on the date the notice of appeal is filed."

Non-compliance with statutory rules which are fundamental, mandatory or sine qua non is fatal. The consequences of any default simply put is that there will be no appeal before the court the effect being that the court in question will have no jurisdiction.

By Section 4 sub-section 5 of the Courts Act 1993, Act 459;—

"The Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Court."

The import of these rules as stated, is that an appeal court can only be conferred with appellate jurisdiction when the appellant complies strictly with all statutory regulations up to the time of filing his notice of appeal.

Having thus examined the substantive law and the effect of non-compliance with the statute law and the procedural regulations above we can now effectively determine the effect of the present appellants position. In other words whether upon an examination of the particular facts in this case it can be safely said that an appeal has been brought properly before this court.

The facts which have sparked off the present matter before us have been fully set out in the able opinion of my brother Acquah, J.S.C. which opinion I have had the advantage of reading beforehand and I will only resort to the facts where it is necessary to explain a point that is herein raised.

A cursory glance at the appellants notice of appeal reveals two glaring defects. The notice of appeal all have two stamps, one from the Court of Appeal Registry in Accra and the other from the Registry of the Judicial Committee of the National House of Chiefs in Kumasi.  Both stamps having been displayed prominently on the face of the said notice. The stamp for the Court of Appeal Registry appears on the orthodox portion of the notice whilst the one from the latter appears on the unusual portion of the notices. Even though the notices were directed to the Registrar of the Supreme Court none of them was filed in that registry. Secondly both stamps display the same date and a time, that reveal a clear impossibility simply because the two Registries are over two hundred kilometres away from each other. The question that arises is in which of the two courts was the notices of appeal filed?

According to the law

(1) The Supreme Court has jurisdiction to hear appeals from the National House of Chiefs (Article 131 and 272 of the 1992 Constitution). See also section 4(4) of the Courts Act 1993.

(2) An appeal is brought by notices of appeal filed with the court below.  See Rules 6(1) of C.I. 16. Court below in the instant case is the National House of Chiefs.

The Court of Appeal then clearly has no jurisdiction. The court below in this case is without doubt the National House of Chiefs.  Unfortunately the genuineness of the stamp indicating that the notice was filed at their proper place is seriously undermined by the presence of the stamp of the Court of Appeal Registry bearing the same time and date.

Indeed needless to say the notice of appeal on its face tells lies about itself.  This amounts to a forgery or a false instrument which cannot be sustained in any court of law.  A document or any part thereof that is made or altered with the intent to cause it to be believed that it was made or altered at a time different from that at which it was in fact so made or altered is a forged document.  See Section 164 of the Criminal Code Act 29.  The notice of appeal in the present case contravenes this provision and is therefore invalid and unreliable.

From the above analytical examination of the facts of this case and the law as considered above, the natural and only conclusion is that there is no appeal before the Supreme Court.  This is so in view of the provisions of rule 6(1) and 8(3).  Rule 8(3) states that a civil appeal is lodged on the date the notice of appeal is filed.  As at date on the facts of this case there is no proper notice of appeal before the court.

The notice of appeal filed in the Court of Appeal puts the appellants out of court and they have no right to be heard in this court.  The notice of appeal also contravenes the mandatory provisions of rule 6(1) of C.I. 16 thereby shutting the appellants from receiving a hearing in this court.  This raises an issue of jurisdiction and puts the requirement of desire to do justice in this case out for consideration by this court.  The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy however plausible can never be elevated into a principle of law. The appellants are out of court and their case will be put out of court as it deserves according to law.

KPEGAH, J.S.C.:

I have the opportunity of reading the opinion of Acquah, J.S.C. which he has circulated to all of us.  I have nothing useful to add.  I agree that the appeal is inadmissible and should be dismissed.

ACQUAH, J.S.C.:

My Lords, this is a ruling on the propriety of the notice of appeal purporting to initiate a Chieftaincy appeal from National House of Chiefs (NHC).

Now after that appeal had been argued before us and adjourned to a date for judgment, we held a judgment conference at which we noticed certain anomalies in the notice appeal.  We discovered that the notice of appeal had the filing stamps of both the Court of Appeal and NHC, meaning that same had been filed in the registries of these two courts.  We further notice that the date of filing in both failing stamps was the same, that is, 12th February 1988; but the filing time stated in that of NHC was 8.00 a.m., while that of the Court of Appeal was 8.40 a.m.

Since the proper forum for the filing of notice of appeal initiating chieftaincy appeals from the NHC to the Supreme Court, is the NHC, and the filing stamp of that House on the notice of appeal showed that same was filed at 8.00 a.m. on 12th February 1998, why should the same notice of appeal be sent to the court of Appeal registry in Accra to be filed on the same 12th February 1998 at 8.40 a.m.?   Furthermore since the distance between the NHC registry in Kumasi and that of the Court of Appeal's registry in Accra is over 200 kilometers, how could the notice of appeal be filed in both these places on the same day within a time space of forty minutes?

We also found that some copies of the notice of appeal were addressed to the "Registrar, Supreme Court" while others were to the "Registrar, Court of Appeal". None was addressed to the Registrar, of the NHC. And yet the record of proceedings emanated from the registry of the NHC.

These matters obviously smelt of a fraudulent manipulation of the notice of appeal and thereby raised the preliminary legal issue as to the competence of that document to initiate the appeal.  For fraud as is well-known vitiates everything, and when a Court of law in the course of its proceedings, has cause to believe that fraud had been committed, the court is duty-bound to quash whatever had been done on the strength of that fraud. As Osei-Hwere J.A. as he then was said in In re West Coast Dying Industry Ltd., Adams vrs. Tandoh (1 984-86) 2 GLR 561 at 605 CA:

"Fraud like cancer, calls for a swift remedy. It must be uprooted. Therefore when fraud is brought to the court's notice and there is credible evidence to support it the court is obliged to deal with it swiftly and decidedly".

The House of Lords in Jones vrs. Beard (1930) AC 298 at 301-302, put it this way:

"Fraud is an insidious disease, and if clearly proved to have been used so that it might deceive the Court, it spreads to and infests the whole body of the judgment".

Now as to the court's competence in raising and deciding such legal issues arising from matters glaring on the face of the record, Archer J.A. as he then was, in Asare vrs. Brobbey (1971) 2 GLR 331 CA at 338, quoting Philips vrs. Copping (1935) 1 KB 15 at 21 said:

"It is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it".

See also Orthodox School of Peki vrs. Tawlma-Abels (1974) 1 GLR 419 C.A.

In fairness to the appellant and to give the parties the opportunity to  be heard, we ordered the Registrar of the NHC to appear and testify in open court, and for him to be cross-examined.

One Francis Mark Domenya, a Registrar at the NHC, responded and testified.  And on the basis of his evidence and the materials before us, this opinion is delivered.  But first, a brief background of the case.

On the death of Nana Akoa Amponsah, the queenmother of Agona/Ashanti, the descendants of Tiwaa and Yaa Awe of the Asinie royal family of Agona nominated one Nana Amma Ampratwum as successor.  They presented her, as custom demands, to the Omanhene of the Agona Traditional Area, Nana Kwame Frimpong, who as they alleged, asked them to wait a while.  But then the Omanhene later installed one Akosua Nyarko of the Senchire family of Akyease as the queenmother.  The Omanhene also at another time informed the Kingmakers and elders of Agona at a Traditional Council meeting that, because of his physical weakness and failing health, he would place on his lap one Akwasi Agyeman of the same Senchire family, on the 40th day of the installation of the queenmother, Akosua Nyarko.

Aggrieved by these actions of the Omanhene, and contending that their lineage had the exclusive right to the male and female stools of Agona, the descendants of Tiwaa and Yaa Awe, represented by their head of family and Obaapanyin filed a chieftaincy petition at Ashanti Regional House of Chiefs (ARHC), against the Omanhene, as lst defendant, Akosua Nyarko as 2nd Defendant and Akwasi Agyeman as the 3rd defendant, claiming:

1.  A declaration that the 1st respondent has acted contrary to custom and from improper motives in installing a non royal on the queenmother stool of Agona.

2. A nullification of the purported installation of the 2nd respondent on the female stool of Agona.

3. An order of perpetual Injunction to restrain the 1st respondent his agents, servants and workmen from putting on the stool any non royal of the said stool and from anyway seeking to cause havoc to the said Agona royal stool.

4. A mandatory Order of prohibiting the said 1st respondent from putting on his lap the 3rd respondent who is non royal of the Agona as lst respondent has envinced a clear intention so to do contrary to custom.

5. An order prohibiting the 2nd respondent from parading herself or pretending to be queenmother of Agona as she is not a royal nor has she been validly nominated, elected and installed on that stool.

In their accompanying statement of claim, they contended that their lineage had the exclusive right to ascend both the male and female stools of Agona and that the 2nd and 3rd respondents were ineligible because they did not belong to the royal Asinie family. The defendants, in their Statement of Defence, denied the claim and contention of the petitioners and pleaded that the Asinie royal family of Agona/Ashanti was made up of five lineages: Kwabena Adu, Tiwaah and Yaa We, Krabi, Biane, and finally Osei Mensah. They contended that the 2nd and 3rd defendants together with the entire Kofi Senchire's matrilineal family of Akyease/Ashanti belong to the Krabi royal lineage, They then counterclaimed for a declaration that:

i.  The 2nd and 3rd respondents and members of their entire matrilineal family of Akyease/Ashanti are members of the Asinie royal family of Agona/Ashanti.

ii.  That the 2nd and 3rd respondents and members of their entire matrilineal family of Akyease/Ashanti are eligible to occupy the paramount and queenmothers Asinie stools of Agona/Ashanti.

iii.   That the lst respondent was customarily competent and right to install the 2nd respondent as the queenmother of Agona/Ashanti.

iv.  An order of perpetual injunction restraining the petitioners, their agents, successors according to native customary law and any other member or members of the other royal lineage of Agona/Ashanti from interfering with the 2nd and 3rd respondents and the entire members of their matrilineal family's right as members of the Asinie royal family of Agona/Ashanti eligible to occupy the Asinie royal stools of Agona/Ashanti".

The 1st and 3rd defendants later died, and the petitioners discontinued their action against these two deceased, leaving the 2nd defendant Akosua Nyarko as the sole defendant.

Thereafter Akosua Nyarko filed a motion to strike out the action of the petitioners on grounds, first, that the petitioners had no capacity under customary law to destool her since she had been properly enstooled by the competent authority, and secondly, the discontinuance of the action against the deceased 1st and 3rd defendants vindicated her installation.

On 20th November 1996 the ARHC dismissed the motion holding that the petition was not a destoolment action but one challenging the eligibility of the remaining defendant to ascend the queenmother's stool; and further since the capacity of the petitioners as head and obaapanyin of their lineage were not denied, they were competent to maintain the said action.

An appeal to the NHC was allowed on 15th May 1997 and the petitioners action was struck out.

For in the view of the NHC, although the petition was not a destoolment suit and therefore capacity was irrelevant, the action arose from the conduct of the 1st respondent, against whom all the reliefs, except the fifth, were aimed at.

The 2nd defendant did nothing to merit being sued since she did not nominate nor install herself. Thus concluded the NHC, the discontinuance of the action against the 1st and 3rd respondents necessarily terminated the action.

The NHC refused an application by the petitioners for leave to appeal to this Court. On 28th January 1998, this court therefore granted them the said leave. And the notice of appeal filed in pursuance of that leave is the subject- matter of this ruling.

The evidence of Francis Mark Domenya of the NHC was that on the 20th February 1998, his superior, the Registrar of the NHC, handed over to him eight copies of a notice of appeal with a covering letter dated 16th February 1998 from the Registrar of the Court of Appeal, and instructed him to file them and date each, the 12th February 1998. He said the notice of appeal already had the filing stamp of the Court of Appeal, dated 12th February 1998 at 8.40 a.m. He accordingly put the filing stamp of the NHC on each, dated each 12th February 1998 and inserted the time of 8.00 a.m. He said he collected no filing fees because there was no one to pay for it, and that up to date, no filing fees had been paid. He tendered the covering letter from the Registrar of the Court of Appeal in evidence as Exh. SC1.

Now the minutes of the Registrar of the NHC on this Exhi. SC1 reads:

"Please re-file the notice on the date 12/2/98 and collect fees.

(Sgd.) Registrar

20/2/98"

From the above minutes, Mr. Dumenya was instructed to collected fees. Yet he did not. The papers before us also disclose that the Registrar of Court of Appeal addressed another letter dated the same 16th February 1998 to the parties and the appellants solicitor informing them in effect that the Court of Appeal was not the proper forum for the filing of the notice of appeal.  But the appellants took no steps to rectify their error.

Mr. Dumenya made it clear that once no filing fees were collected, no notice of appeal had indeed been filed at the NHC.  But if even fees had been paid, that would not have validated the filing stamp, since the receipt date and the filing time inserted therein were false.

From the evidence of Mr. Dumenya and the materials before us, it is abundantly clear that the filing stamp of the NHC on the notice of appeal was falsely procured to give the impression, false of course, that the notice of appeal was duly filed at the NHC at the time and date stated therein  - a conduct obviously intended to over reach or defraud the other party.

Now the Supreme Court Rules 1996 (C.I. 16) provides in Rule 6(1) as follows:

"Any appeal to the Court in a civil cause or matter shall be brought by notice of appeal in the Form 1 set out in Part 1 of the Schedule to these Rules and shall be filed with the Registrar of the Court below" (emphasis mine).

The expression Court below is defined in Rule 82 thereof as:

"The court or body from which an appeal or other cause or matter is brought.

Since in the instant case, the matter before us was an appeal from the decision of the NHC, the notice of appeal ought to have been filed at the NHC and not the Court of Appeal. There is therefore non-compliance with Rule 6 (1) of C.I. 16. And the question is whether we have the power to waive such non-compliance.

Mr. Edusei, learned counsel for the appellant had on this point submitted that once the notice appeal was filed, and fees paid at the Court of Appeal, we have power to regard same as having been filed at the NHC and thereby waive the non-compliance. He said that such approach would enable us do justice to the merits of the case, and that it would be gross injustice to dismiss the appeal on such an error.

There is no doubt that the primary duty of a court in the adjudication of any case is to do justice and not to allow technicalities to impede such noble objective. But justice is done according to Law and not the whims and caprices of the individual judge. Thus in any given situation, the court's authority to waive, amend, rectify or regard as fatal an error committed by a party is dependant upon the scope of the court's jurisdiction to exercise a discretion, if any in the matter.

Indeed the authorities establish that the courts are not inclined to waive or correct an error intended to over reach or defraud the other even if the matter lies within their discretion. Thus Bowen L.J. in Cropper vrs. Smith (1884) 26 Ch.D 700 at 710 CA said:

"I know of no kind of error or mistake which if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice". (emphasis mine)

Again where the error is fundamental or goes to the jurisdiction of the court thereby exposing the courts incompetence or lack of jurisdiction in the matter in which the said error was committed, the court is incompetent to correct or waive such an error. As a Court of law has no authority to grant itself jurisdiction in matters where the relevant statute does not confer such power.

Now it must be appreciated that a right of appeal is a creature of statute, and no party has an inherent right to it. Neither has any court an inherent jurisdiction to hear an appeal. The right to appeal can therefore arise and be exercised only in accordance with the laid down procedure. As Akuffo-Addo CJ said in Nye vrs. Nye (1967) GLR 76 at 82-83:

"It must be appreciated that there is no inherent right of appeal in a litigant; nor indeed is there an inherent power in any court to hear appeals. Both the right and the power are creatures of statutes and unless the enactment creating the right of appeal is explicit, clear and unambiguous in its language, no such right and the power can ever materialize, when however, the right and the power do materialize they are exercisable only within the frame work of the conditions imposed for their exercise".

Of course, rule 79 of C.I. 16 (same as rule 66 of the repealed C.I. 13) empowers this court, in fitting situations, to waive non-compliance with a procedural rule or order of this Court. But that rule does not permit this Court to do what it has no jurisdiction to do . The rule reads:

"Where a party to any proceedings before the Court fails to comply with any provision of these Rules or with the terms of any order or direction given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings unless the Court considers that the non-compliance should be waived".

The language of the above rule clearly shows that it applies only to "a party to any proceedings before the Court".  The Court here is defined in rule 82 to mean the Supreme Court.   And as we are aware, this Court conducts proceedings in respect of its various jurisdictions, namely:

i.     -      appellate jurisdiction in civil and criminal matters

ii.    -      original jurisdiction

iii.   -      Review

iv.   -      Supervisory

V.   -      Reference

vi.  -      Challenge of Election of President.

It is therefore important to appreciate that in discussing the scope of Rule 79 of C.I. 16, the jurisdiction in respect of which the proceedings in issue are being conducted must be uppermost in one's mind. For C.I. 16 being procedure rules, same cannot confer jurisdiction where the substantive law does not. In respect of its review and supervisory jurisdictions for instance, the Supreme Court has in the exercise of its discretion under rule 79 not bound itself to any inflexible precedent. Rather it had dealt with each case more on its own peculiar facts and circumstances, considering whether each non-compliance was wilful, unintended or excusable, and whether same could be waived or not-waived without injustice to the other side. Thus failure to file a statement of case to accompany one's motion for review under rule 56(1) of C.I. 16 had in some instances been waived and in others not waived.

C.M. 24/97 Rep. vrs. Tommy Thompson & Ors. 3/2/98

Again in CM 56/97 Rep. vrs H/C Kumasi & Ors. Ex parte Atumfuwa Kwadwo Bi & Ors. 15/7/98 the court allowed an unsworn affidavit supporting a motion for certiorari to be sworn, on grounds that the failure was inadvertent and not intended to overreach. See also, Okofo Estates Ltd. vs. Modern Signs Ltd. (1996-97) SCGLR 224, CM 15/98 Goldfields (GH) Ltd. vs. Amissah Anthony & Ors. 27/10/98. However, unlike the review and supervisory jurisdictions, there is a mandatory statutory prohibition in section 4(5) of the Courts Act 1993 (Act 459), on this Court, subject to its power to grant special leave, to hear any appeal unless the appellant has fulfilled the conditions imposed on him by the Rules of Court. The section reads:

"4(5). Subject to subsection (2) of this section, the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Court" (emphasis mine).

The appellate jurisdiction of the Supreme Court is therefore circumscribed by the injunction imposed in section 4(5) of Act 459. And it is within the parameters of this injunction that rule 79 operates. Now a careful study of the rules regulating civil appeals in general, break down into two sets of rules: The first set leading to the filing of the appeal; and the second set, regulating the bringing of the appeal thus filed to a hearing.

The first set includes rules on the time within which to file an appeal, the obtaining of leave, if any, and the forum where the notice of appeal ought to be filed. When in compliance with the first set of rules, a notice of appeal is filed, the appeal is deemed to be lodged at the appellate court to which the appeal is directed. Thus in relation to the Supreme Court, rule 8(3) of C.I. 16 provides:

"A civil appeal is lodged on the date the notice of appeal is filed".

This implies, from what I said, that the notice of appeal must have been filed within time, with the requisite leave if any, and at the appropriate court below.

The rules, after the filing if the notice of appeal come under the second set.  And they include the settlement of records, the fulfillment of the conditions of appeal imposed by the Registrar, the filing of the parties statement of case and so on.

The decided cases show that defaults in connection with the rules in the first set is fundamental and goes to the appeal, and therefore leave the court with no discretion but to dismiss the appeal in limine.  They affect the notice itself, invalidate it and render the appeal void:

Moore vrs. Taye (1932) 1 WACA 242,

Dickinson , In re, ex parte Rosenthal (1882) 20 Ch.D 315.

Defaults in connection with the second set are not so fundamental, since a valid appeal had already been lodged.  They affect the prosecution of the appeal and in this wise, are conveniently described as procedural.  Such defaults therefore render the appeal only voidable.  And it is in relation to these defaults that the courts discretion may be invoked.

Ogunmola vrs. Igbo (1941) 7 WACA 137

Botchway vrs. Nasser (1946) 12 WACA 23

Kudiabor vrs. Kudanu (1932) 6 WACA 14

Speaking on the court's power to handle defaults in connection with these two sets of rules in relation to the Supreme Court Rules 1962 (L.I. 218) in Merah vrs. Okrah (1984-86) 1 GLR 400 at 410 Adade JSC said:

"Concerning the first, the court has no discretion but to strike down the appeal as invalid: there is no appeal before the court.  The court's discretion can only be invoked in connection with the procedural defaults, when rules 19 or 64 of L.I. 288 as appropriate, may be prayed in aid".

On the basis of the above authorities it has been consistently maintained that the Supreme Court's discretion under rule 79 of C.I. 16 in civil appellate matters can be invoked only when the appeal has been lodged in the Supreme Court.  And by rule 8(3) of C.I. 16 this implies that the notice of appeal must have been properly filed at the appropriate court below:

Ololo vrs. LEDB (1950) 13 WACA 57

Darke IX vrs Darke IV (1984-86) I GLR 81 SC.

Sandema Nab vrs. Asangalisa (1996-97) SCGLR 302

Explaining the scope of rule 66 f C.I. 13 (same as rule 79 of C.I. 16) in relation to the Supreme Court's appellate jurisdiction, Adade JSC  in Darke IX vrs. Darke IV (supra) at page 489 said:

"Case law on the interpretation and application of this rules has cystallised along the lines that the court's discretion….is to be exercised when the appeal itself can be said to be properly pending before the Court and the court has jurisdiction to deal with it.  This means that the appeal must have been filed timeously, and where applicable, the requisite leave had been obtained.  But where the appeal is filed out of time, or otherwise suffers from fundamental and radical defect, a defect that goes to the very roots of the appeal, then notionally there is nothing before the Court with respect to which the court may exercise any discretion at all.  The court's jurisdiction is to be invoked to handle appeals; it is not to be invoked to handle nothing.  So if there is no appeal pending, properly so called, then the court has no jurisdiction to do". (emphasis mine)

Thus unless the appeal in issue here has been lodged in this court in terms of rule 8 (3) of C.I. 16, we cannot invoke our discretion under rule 79 of C.A. 16 to consider the request of Mr. Edusei.

In the instant case the evidence of Mr. Dumenya clearly established that the notice of appeal was filed at the Court of Appeal and that up to date no notice of appeal had been filed at the NHC where by rule 6(1) of C.I. 16 same ought to have been filed.  The filing stamp of the NHC on the notice appeal is not genuine in that it was contrived to deceive and give the impression that same had properly been filed there.

I concede that this false NHC filing stamp was the handiwork of the officials of the House, and generally the law does not permit the court to penalize a party in a situation arising from the misconduct of a court official over whom the party has no control.  In Montreal Street Rail Co. vrs. Normadin (1917) Ac 170 at 174, the law was stated thus:

"Where the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work injustice to persons who have no control over those entrusted with the duty, the court will require very strong evidence before punishing an innocent person…for the default of the Registrar over whom he has no control".

So that in the absence of any evidence that it was the appellants who requested the court officials to place the filing stamp of the NHC on the notice of appeal, the appellants ought not to be penalized for that.  I entirely agree.

But first of all, penalizing of the appellants for the presence of the false NHC filing stamp does not arise as same is a nullity.  Mr. Dumenya made it quite clear that there had been no filing of the notice of appeal at the NHC, especially as no filing fees had been paid, and that the date and time inserted in that filing stamp are all false.  The said filing stamp is therefore to be totally ignored.  The true position therefore is that the notice of appeal was filed at the Court of Appeal registry.  And since the filing of notice of appeal is regulated by time the appellant's are now hopelessly out of time irrespective of whether the decision delivered by the NHC on 15th May, 1997 is interlocutory or final.

Secondly, although a party is generally not to be penalized for the misconduct of a court official, it is also established that where the misconduct of the court official is founded on or arises from the error, mistake or improper conduct of that party, the said party cannot take advantage of the misconduct.  For as Apaloo C.J. aptly said in Ndoley vrs. Iddrisu (1979) GLR 559 at 565:

"No man should be permitted to take advantage of his own wrong".

See also: The Republic vrs. Kumasi Traditional Council ex parte Agyeman 11 (1977) 1 GLR 360 at 365.

Therefore since the error occasioned by the procurement of the false NHC filing stamp on the notice of appeal arose from the error of the appellants in filing same at the wrong forum, the appellants cannot take advantage of the presence of the false NHC filing stamp and plead that this Court should regard their notice of appeal as having been duly filed at the NHC.  In short, it does not lie in the mouth of the appellants to attempt to take any advantage of the NHC's filing stamp.

In conclusion, the appellants having filed their notice of appeal at the wrong forum in contravention of rule 6(1) of C.I. 16, with the result that their appeal is still deemed not to have been lodged in terms of rule 8(3) of C.I. 16, this Court is not seized with jurisdiction under rule 79 of C.I. 16 to exercise its discretion in one way or the other.  The appeal is therefore destined to be refused.  And I so hold.

ADJABENG, J.S.C.:

 I agree that the appeal be stuck out.

MS. AKUFFO,  J.S.C.:

I agree that the appeal be dismissed.

COUNSEL

E.M. Edusei for the Appellant.

S.K. Amofa for the Respondent.

I.W.