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RULING
ANIN
YEBOAH, JSC:
On the 23rd of July,
2015 we dismissed this
application and reserved our
reasons which we proceed to
deliver.
The applicant herein has invoked
the supervisory jurisdiction of
this court to quash the judgment
of the Court of Appeal, Accra,
dated the 13th of
March 2014. The facts of this
application appear to be devoid
of any controversy and are fully
captured in the affidavit of one
Emmanuel Odoi Yemo the chairman
of the applicant trust sworn to
on the 11th of June
2014.
The said deponent, Emmanuel Odoi
Yemo, in the affidavit in
support of this application has
deposed to the fact that on
30/07/2012 the applicant filed a
motion to commit the Interested
Party herein for contempt of
court before the High Court,
Accra. The first respondent in
the said contempt proceedings,
one Samuel Quaye Tawiah filed an
affidavit in opposition to the
motion and sought to challenge
the capacity of the applicant
herein. The other respondent
did not file any process upon
service on him of the contempt
proceedings.
The High Court entertained
arguments on the capacity of the
applicant herein and ruled that
it had capacity to bring the
application for contempt. After
the ruling which was delivered
on 26/04/2013 the third
respondent to the application
for contempt lodged an appeal to
set aside the ruling of the
trial High Court, Accra. The
other respondent described in
the contempt proceedings as the
first respondent, that is,
Samuel Quaye Tawiah did not
file any appeal to contest the
ruling. On the 3rd
of July 2013, the parties
affected by the ruling in the
contempt proceedings were
summoned by the Registrar of the
High Court, Accra, to settle the
records of appeal as a statutory
precedent for prosecution of any
civil appeal. The parties
complied and as it appears in
one of the exhibits in this
application, precisely, Exhibit
“F”, the Registrar of the High
Court, Accra, imposed several
conditions on the interested
party herein to fulfill.
According to the applicant, the
interested party to this
application did not fulfill the
conditions of appeal which was
statutorily imposed on him by
the Registrar of the High Court,
Accra. To appreciate the import
of what the deponent Emmanuel
Odoi Yemo said we reproduce his
affidavit in support,
specifically paragraph 10, 11,
12 and 13 as this would be
appropriate:
“10. That on 22nd
January, 2014 the appeal was set
down for hearing and the Court
of Appeal adjourned same to 13th
March 2014 for judgment.
11. That subsequently it came to
my notice that the Director of
Surveys, 3rd
respondent/appellant, did not
fulfill the conditions of appeal
so I caused a search to be
conducted which results
confirmed that indeed the
Director of Surveys did not
fulfill the conditions of appeal
(Exhibit F).
12. That upon obtaining the
search results I caused a Motion
of Notice to be filed at the
Court of Appeal on 3rd
March, 2014 seeking to have the
appeal dismissed which motion
was fixed for 26th
March, 2014 (Exhibit G)”
On hearing the appeal, the Court
of Appeal, adjourned to 13th
of March, 2014 to deliver its
judgment. Thus the Court of
Appeal allowed the appeal in
favour of the interested party.
The applicant complains that the
Court of Appeal was aware of the
motion to dismiss the appeal
when it proceeded to deliver its
judgment even though counsel
wrote: “out of abundance of
caution” to the court to
draw the attention of the court
to the pending motion fixed for
26th March 2014.
The Court of Appeal ignored the
letter and proceeded to deliver
the judgment. The interested
party herein, however in his
affidavit in answer to this
application stated in paragraphs
23, 24 and 25 as follows;
“23. That, the 1st
respondent, on behalf of the 3rd
respondent (described in the
ruling as 2nd
respondent/appellant after the
demise of the original 2nd
respondent), paid the cost of
settling the records of appeal
on 28th August 2013
and was issued with two receipts
(totaling GH¢1,000.00) in his
name even though he was not the
appellant and also because he
failed to indicate his status.
Attached hereto and marked as
Exhibit DSM 4 are copies of the
receipts”.
The interested party herein went
further to depose in the
affidavit that the Lands
Commission is headed by a
solicitor who is a staff of the
Attorney-General’s Department
who is not required to pay
filing fees and also enter into
bonds for prosecution of
appeals. What is on record,
however, is that, the Registry
of the High Court, Accra on
28-8-13 received an amount of
Two Hundred and Fifty Ghana
Cedis from one Quaye-Tawiah (who
was the first contemnor at the
High Court) as “Appeal Deposit”
as evidenced by Exhibit DSM 4A
annexed to the affidavit of one
Joseph Tetteh Odametey, the
Director of Survey and Mappings
Division of the Lands
Commission. Another receipt on
record is Exhibit “DSM 4B”,
evidencing another payment by
the same Samuel Quaye Tawiah in
the sum of Seven Hundred and
Fifty Ghana Cedis as “Appeal
Deposit”. On the 4th
of October 2013, the High Court
Registrar issued Civil Form 6
giving notice to the parties
that the record of appeal had
been dispatched to the Court of
Appeal. The Court of Appeal
heard the appeal on the merits
and allowed it.
Learned counsel, did not appeal
against the judgment of the
Court of Appeal which set aside
the conviction of the appellant
for contempt. He has rather
invoked our jurisdiction under
Article 132 of the 1992
Constitution to quash the
judgment of the Court of Appeal
dated the 13th March
2014 on two grounds, namely:
1.
The appellant (the interested
party herein) having failed to
fulfill the conditions of
Appeal, the appeal was not
property before the Court of
Appeal and as such the learned
justices of Appeal lacked the
jurisdiction to give judgment in
favour of the appellant.
2.
The attention of the Court of
Appeal having been drawn to the
Motion on Notice filed by the
appellant herein on 3rd
March, 2014 seeking to have the
appeal set aside for want of
jurisdiction which motion had
been fixed for 26th
March, 2014 the learned Justices
of Appeal violated the
fundamental and constitutional
right of the applicant herein to
be heard on the motion when they
proceeded to give judgment in
favour of the appellant on 13th
March 2014 thereby rendering the
said motion nugatory and
pre-emptying same from being
heard on the merits”
Before this application could be
heard, learned counsel for the
interested party sought leave to
raise a preliminary objection on
the grounds that, the deponent
to the affidavit of the
interested party, one Emmanuel
Odoi Yemo had no capacity to
swear to the affidavit and that
as the applicant trust’s tenure
of office had expired it could
not legally mount an application
of this nature, in that, it had
no locus standi in law. This
court allowed an application for
adduction of evidence and
thereafter overruled the
preliminary objection and
reserved our reasons to be
incorporated in this delivery.
This court is of the opinion
that in certiorari applications
any person who is interested in
the outcome of the proceedings
could apply as applicant for
certiorari as it is in the
interest of the citizenry to
ensure that the due process of
law is observed by adjudicating
bodies. This proposition of law
has its genesis in our case law
from the case of the STATE
v ASANTEHENE’S DIVISIONAL
COURT BI; EX PARTE KUSADA
[1963] 2GLR 238 SC, REPUBLIC
v KORLE GONNO DISTRICT
MAGISTRATE COURT; EX PARTE
AMPOMAH [1991] GLR 353 and
more recently the opinion of my
esteemed brother Dotse JSC in
REPUBLIC v HIGH COURT,
HO, EX PARTE BEDIAKO II & ANOR
(ODUM & ORS INTERESTED PARTIES)
[2011] 2 SCGLR 705 in which the
scope of capacity in certiorari
applications was amply
explained. We therefore hold
that as the applicant trust
which was at the High Court as
the applicant for the contempt
proceedings, irrespective of
whether the tenure of office of
the trustees had expired or not
has an interest in the suit
which is actively pending in the
courts of law and could mount
this application. We so
overruled the preliminary
objection.
As said earlier the applicant
has invoked our jurisdiction on
two main grounds. On the first
ground, counsel’s argument
appears to be simple. He has
urged on us that as the
appellant at the Court of Appeal
did not fulfill the conditions
of appeal imposed on it by the
High Court Registrar, the Court
of Appeal lacked jurisdiction to
give judgment. Reliance was
placed on section 11(7) of the
Court’s Act, 1993 (Act 459)
which provides thus:
“11(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”
Counsel for the applicant
proceeded to rely on the case of
AGBEYEVU v OCANSEY
[2009] SCGLR 703 in which this
court pointed out that before
civil appeals could be heard the
conditions of appeal imposed by
the trial court or the lower
court must be fulfilled before
the appeal could be heard. I
said at page 708 as follows:
“Even though the 1992
Constitution and the Courts Act,
1993 (Act 459), confer
statutory rights on the
appellant to appeal as of right,
his statutory right 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 1992
Constitution and the Courts Act,
1993 and notwithstanding the
merits of the appeal, an
appellate court would not
proceed to hear the appeal”.
In that case the appellant had
paid part of the deposit as
payment for preparation of the
record of appeal but
subsequently applied to the
Registrar for refund of the
deposit which the Registrar
obliged. The appeal was
subsequently struck out based on
the Registrar’s submission of
Notice of Non-compliance. It
took the appellant over one year
to apply to restore the appeal
which the Court of Appeal
dismissed . It was an appeal to
the Supreme Court when affirming
the rulings of the Court of
Appeal that the above
proposition of law was laid
down.
In this application, it appears
that the facts are quite
different and are easily
distinguishable from the
ABEKENU v OCANSEY
case, (supra). In this case,
the appeal, that is, the
substantive appeal was listed
before their Lordships at the
Court of Appeal, Accra for
hearing. It was certainly
presumed by Their Lordships that
everything was regular for the
hearing of the appeal.
In any case, it is not the
practice of appellate courts to
peruse lower courts’ dockets to
ascertain whether appeal
conditions were fulfilled by the
appellant before hearing
substantive appeals. In the
case of MERAH v
OKRAH
[1984-86] IGLR 400 Adade JSC at
the Court of Appeal said at page
409 as follows:
“A study of the cases shows that
there are two classes of
breaches. In one the default is
fundamental; it goes to the root
of the appeal, and therefore
leaves the court with no
discretion but to dismiss the
appeal in limine. See MOORE
v TAYEE (1932), WACA 242 and
IN RE DICKINSON; EX PARTE
ROSENTHAL [1882] 20 Ch D
315. In the other class, the
default is not so fundamental;
it affects the prosecution of a
properly filed appeal and in
this regard may be referred to
for convenience, as procedural:
See OGUNMOLA v IGBO
[1941] 7 WACA 137 and
BOTCHWAY v NASSAR
[1946] WACA 23”.
The learned judge proceeded to
discuss the effect of
non-compliance with the
fulfillment of conditions of
appeal at page 409 under the old
rules, that is the (Court of
Appeal Rules) LI 218 of 1962
which is very similar to the new
rules; as follows:
“An appeal shall be deemed to
have been brought when the
notice of appeal has been filed
in the registry of the court
below” The above rule implies
that as soon as the notice is
filed, within the proper time
and, where applicable, with the
requisite leave, there is
properly filed appeal pending.
Everything else that the
appellant is required to do
thereafter does not affect the
pendency of the appeal, it only
related to the procedure or
mechanics for bringing the
appeal to a hearing.
The authorities will seem to
show that defaults in connection
with the first stage are fatal.
They affect the notice itself,
invalidate it and render the
appeal void. They affect not
the “conditions of appeal as
fixed [by the registrar] but …
the very existence of the
appeal”.
As the appeal was deemed pending
before the Court of Appeal, the
Court of Appeal Rules, 1997, CI
19, rule 16 makes it mandatory
that any respondent wishing to
raise a preliminary objection to
the Civil Appeal must give the
appellant three clear days
notice of any preliminary
objection setting out the
grounds thereof in compliance
with FORM 8 in Part I of the
rules. In the absence of any
notice of preliminary objection
at the instance of the
respondent to the appeal, the
Court of Appeal may proceed to
hear the appeal if the first
requirement in the MERAH
v OKRAH case, supra, is
met; that is, when the notice of
appeal had been properly filed
within the law. There is
therefore the presumption of
regularity in favour of the
appeal and it behoves the
applicant as the respondent to
the Civil Appeal to have raised
a preliminary objection before
the Court of Appeal that the
conditions of appeal had not
been fulfilled by the
appellant. This the applicant
failed to
do. The applicant rather filed
a “MOTION ON NOTICE TO
DISMISS APPEAL” on 3rd
March 2014 and same was listed
to be heard on 26th
March 2014 when the appeal had
already been heard on 22nd
January and adjourned for
judgment on 13th
March 2014. It appears that the
applicant herein as the
respondent to the appeal before
the Court of Appeal did not file
any written submissions or raise
any preliminary objection in any
manner or form as he was
enjoined by the rules to do.
The motion to dismiss appeal
was even placed before the Court
of Appeal differently
constituted and not seised with
the facts of the matter which
therefore ordered the motion to
be placed before the panel which
had heard the substantive
appeal.
As pointed out above, the Court
of Appeal proceeded to hear the
appeal on the strong presumption
that everything was regular
which is a rule of evidence
expressed in Latin as “omnia
praesamutur rite esse acta”, in
the absence of any timeously
raised objection that the appeal
was not properly before it. It
is thus clear that the Court of
Appeal did not lack jurisdiction
when it proceeded to hear the
appeal which indeed did not also
destroy its jurisdiction when it
delivered its judgment. The
first ground of the application
is with due respect to counsel
is unmeritorious. In any case,
our supervisory jurisdiction by
way of certiorari has been
invoked and the authorities are
clear that when an alternative
remedy exists, a supervising
court may refuse to grant
certiorari. In the case of the
THE REPUBLIC v HIGH
COURT; ……..ACCRA EX PARTE
ATTORNEY-GENERAL (OHENE AGYAPONG
INTERESTED PARTY) [2014] 2
SCGLR 1204, Date-Bah JSC relying
on the settled authorities like:
IN RE APPENTENG (DECD),
REPUBLIC v HIGH COURT,
ACCRA [COMMERCIAL DIVISION] EX
PARTE APPENTENG (APPENTENGS
INTERESTED PATIES) [2010]
SCGLR 327, REPUBLIC v
HIGH COURT, ACCRA; EX PARTE
ARYEETEY (ANKRAH INTERESTED
PARTY) [2003-2004] ISCGLR
410 and REPUBLIC v
HIGH COURT, ACCRA; EX PARTE
APAIN [2007-2008] SCGLR 72
said at page 1209 thus:
“…where an applicant has remedy
other than certiorari open to
him or her, this is a factor
that may be taken into account
in denying the applicant the
discretionary remedy of
certiorari; even if the other
preconditions for the grant of
the remedy have been
established”.
Another point worth considering
is the conduct of the applicant
in the entire proceedings. It
is on record that when the
applicant obtained a record of
the proceedings, errors were
detected which were not
substantial but were
misdescription of the applicant
as respondent/appellant,
nevertheless the applicant
refused to file the written
submissions mandatorily required
by the Court of Appeal Rules in
Civil Appeals. Indeed the
applicant never filed any
written submission at the Court
of Appeal even though the
appellants’ written submission
had been served on counsel on
15/11/2013 before the appeal was
heard on the 21st of
January 2014. In any case,
defective records of appeal are
remitted to the lower courts for
correction on regular basis and
this is a settled practice in
hearing appeals.
Another serious matter worth
addressing is the conduct of
counsel for not appearing before
the Court of Appeal to draw its
attention to the pending motion
but wrote a letter to the court
that he had filed a motion to
dismiss appeal and requested
the Court of Appeal to adjourn
the appeal when he was fully
aware that the date was fixed
for judgment.
In our respectful opinion, we
notice that the conduct of
counsel for the applicant in the
entire appeal before the Court
of Appeal amounted to clear
disregard for the rules of court
and settled practice. We think
that the conduct of the
applicant is such that our
discretion should not be
exercised in his favour as his
conduct has disentitled him to
the grant of the remedy in the
nature of certiorari.
We could have dismissed the
application solely on this our
opinion on ground one, but
learned counsel argued ground
two of the application at length
in such a manner that we owe him
a duty to discuss same in this
delivery. Learned counsel for
the applicant has complained
that as the MOTION TO DISMISS
APPEAL was pending before
the Court of Appeal it was not
right for it to proceed to
deliver judgment moreso when he
had by EXHIBIT “H” written to
the court that he had filed a
motion to dismiss the appeal
fixed for the 26th of
March 2014. Learned counsel
further complains that by not
adjourning the appeal on the
date of delivery of the
judgment, the Court of Appeal
violated the applicants’
fundamental and constitutional
right to be heard on the motion.
It appears, however, that
learned counsel for the
applicant was making a case that
there was a clear breach of the
“audi alterem partem rule” which
to him should nullify the
judgment of the Court of
Appeal. He sought reliance on
the case of REPUBLIC v
COURT OF APPEAL & THOMFORD, EX
PARTE GHANA CHARTERTED INSTITUTE
OF BANKERS [2011] 2 SCGLR
941.
It should be made clear that
learned counsel did not avail
himself of the opportunity
offered to his client as a
litigant by the rules of the
Court of Appeal. He elected not
to file any written submission
to answer the case of the
appellant but rather took an
unprecedented step of refusing
to actively participate in the
hearing of the substantive
appeal. He elected a course,
which with due respect, amounted
to a clear disregard for the
rules of court and wrote a
letter to the Court of Appeal to
draw Their Lordships’ attention
to the pendency of his motion to
dismiss the appeal. As it
turned out the said motion was
not even placed before the
original panel hearing the
substantive appeal.
From the foregoing it was thus
clear that learned counsel for
the applicant, with due respect,
left the Court of Appeal
unassisted in hearing the
appeal. There could not be a
breach of the audi altarem
partem rule when it is clear
from the facts that sufficient
opportunity was given to a party
and was abused by him. Indeed,
counsel pursued a course in the
whole appeal which was
unprecedented and not enuring to
the benefit of the applicant.
We find this ground of appeal
also as without any merits
whatsoever hence we proceeded to
dismiss same on the 23rd
of July, 2015 with these
reasons.
SGD)
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
S. O. A. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. PAUL DEKYI AND JACOB NOYE
WITH HIM, FOR THE APPLICANT.
MR. CARIS APPIAH BRAKO FOR THE
INTERESTED PARTY .
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