ACCRA - A.D 2017
RAOUL ABOU-CHEDID - (Plaintiff/Appellant)

CIVIL APPEAL NO:  H3/190/2017

On the 11th of January 2017, the defendant/appellant/applicant (hereafter referred to as the applicant) filed a notice of motion for leave to amend a notice of appeal filed on 12th July 2016 at the Registry of the Appeal Court.


The application was supported by an eight-paragraph affidavit sworn to by one Audrey Twum, a partner of Dr. Seth Twum and Associates. She deposed to the following matters:


That this court gave judgment in the instant matter against the applicant and that the applicant lodged an appeal against that decision by filing a notice of appeal to the Supreme Court on the 12th of July 2016. The said notice of appeal she averred, had inadvertently been signed in the name of Dr. Seth Twum and Associates as solicitor, instead of Dr. Seth Twum.


The application was thus brought to effect a correction of the name appearing under the solicitor’s signature.


The plaintiff/respondent/respondent (the respondent) in a thirty-one paragraph affidavit opposed the instant application upon the following grounds: first, that there was no appeal before the Supreme Court as the applicant had failed as an appellant to satisfy the conditions of appeal in accordance with Rule 14 of CI 16; second, that there was yet undetermined, the applicant’s application before the Supreme Court for extension of time within which to appeal - that the filing of a multiplicity of applications amount to an abuse of the court’s process; third, that this court has in Nii Lante Mills v. Mildred Ama Woode H3/563/2015 dated 20th October 2015 (unreported), held that a legal process such as a notice of appeal must be signed by a solicitor: a natural person licensed to practise law, and not a firm of lawyers such as the applicant had done in its notice of appeal.


At the hearing of the motion, learned counsel for the respondent raised an issue regarding whether the court can permit an amendment under CI 19 a subsidiary legislation, to cure a defect under substantive law: the Legal Profession Act, Act 32. The court ordered the parties to address it on the jurisdiction of the Court of Appeal to deal with the instant application.


I have read the submissions of both counsel and I am persuaded that this court lacks jurisdiction to entertain the instant application. I say so for the reasons following:


First of all, I must say that although it was deposed in the affidavit in opposition that there was pending at the Supreme Court, the applicant’s application for extension of time to appeal, no process, confirmatory in nature, was attached to the affidavit. The production of evidence of an undetermined application for extension of time to bring the appeal, would have demolished the foundation of the instant application as the appellant would have had no leg to stand on. This is because in the absence of such enlargement of time by the Supreme Court, the appeal which would be out of time, could not be lodged by the filing of a notice of appeal. As aforesaid, no such evidence was proffered.


But assuming that the notice of appeal was properly filed within time, the question of the jurisdiction of this court to grant or refuse the instant application then arises.


The power of the Court of Appeal to entertain interlocutory matters relating to appeals from its decision to the Supreme Court is found not under Rule 31 of the Court of Appeal Rules CI 19 as canvassed in this application, but in the Supreme Court Rules CI 16.


Rule 31 of CI 19 gives general powers to the Court of Appeal in connection with matters before it. These include the power to make orders necessary for determining the real questions in controversy, the amendment of defects in the record, the granting of interim orders such as the court below is authorized to make or grant, make necessary inquiries or accounts, direct the court below to make inquiries into questions or accounts. They are therefore concerned with appeals before the Court of Appeal.


Rule 6(1) of CI 16 reads: (I) “Any appeal to the Court in a civil cause or matter shall be brought by notice of appeal in the Form I set out in Part I of the Schedule to these Rules and shall be filed with the Registrar of the court below”.


When this is done (even before any other step is taken, such as the fulfilment of the conditions of appeal), Rule 8(3) of CI 16 provides that the appeal before the Supreme Court is duly lodged. Thus the point canvassed by learned counsel for the respondent in casu that the failure to fulfil conditions of appeal amounted to no appeal, must be discountenanced.


When the record is settled, the conditions are fulfilled and the record is transmitted to the Registry of the Supreme Court, the Supreme Court becomes seized of the appeal, and by Rule 16 of CI 16, every application relating to the appeal must be brought before the Supreme Court. Every application filed at the court below after the transmission of the record of appeal must be transmitted to the Supreme Court. Before then, such applications may inferentially be brought before the court below (Court of Appeal). Indeed with regard to applications for stay of execution or of proceedings, Rule 20 of CI 16 empowers the Court of Appeal to hear and determine them, and it is when they are refused that a repeat application may be brought before the Supreme Court.


It is my view however, that in spite of these provisions, there are certain applications that cannot be heard by the Court of Appeal even when the record of appeal has not been transmitted to the Registry of the Supreme Court. These are applications such as the instant one that touch on jurisdiction.


I describe the instant application as one that is jurisdictional in nature because the instant matter is not a post-judgment application, but an application that affects the appeal duly lodged before the Supreme Court. This is because the present application raises an issue of the competence of the appeal. If the notice of appeal which brings the appeal (Rule 6(1) of CI 16), is found to be defective, any amendment to cure the defect will grant competency to an appeal that would otherwise be incompetent.


The instant application has one of two answers. What will be the state of the appeal if this court refuses to grant the amendment sought? Would the defective notice of appeal then be competent to launch the hearing of the appeal, or would it render the appeal altogether incompetent? It is because of the answers to these questions that I am persuaded that the instant application is a jurisdictional issue. In Merah v. Okrah [1984-86] 1 GLR, 400 at 409, Adade JSC threw light on the significance of a notice of appeal as the founder of the appellate court’s jurisdiction: “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 a properly filed appeal pending. Everything else that the appellant is required to do thereafter does not affect the pendency of the appeal; it only relates 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, see Kudiabor v. Kudanu (1932) 6 W.A.C.A. 14 at 16...” (Emphasis supplied); see also per Edward Wiredu JSC (as he then was) reiterating this principle in Frimpong v Nyarko [1999-2000]1 GLR 429: “These regulations are of two kinds: those that are fundamental and form the basic foundation or the substratum of 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”.


By the instant application, the applicant seeks to amend the name appearing on the notice of appeal as solicitor, by changing it from that of a firm: Dr Seth Twum and Associates, to a solicitor Dr. Seth Twum.


In Nii Lante Mills v Mildred Ama Woode (supra), this court, following a line of cases such as The Republic v. High Court (Fast Track Division) Accra; Ex parte Justin Pwavra Teriwajah and Anor (Reiss & Co (Ghana) Limited, Interested Party) Civil Motion No. J5/7/2013 dated 11th December 2013 (Unreported) held that a process brought in the name of a firm and not a natural person, cannot be the intendment of the Legal Profession Act, Act 32/60 which requires solicitors to be licensed before they can practise. Thus, a process signed in the name of a law firm has been held to be incompetent.


It is for this reason that the notice of appeal filed in the instant case is defective, and may require an amendment to be competent to launch the appeal


But because the instant application which seeks to amend the notice of appeal raises a jurisdictional issue, it must in my view, be determined by the Supreme Court which is seised with the determination of the appeal itself, see also Ernestina Boateng v. Phyllis Serwah and Ors. Civil Appeal No H3/376/2016 dated 21st July 2016 (Unreported).


I have arrived at the conclusion that the Court of Appeal therefore has no jurisdiction to grant an application that will cure, and therefore affect the validity of the notice of appeal.


It is because of this that as a single Justice of the Court of Appeal, I decline to entertain arguments regarding the merits of the application, which arguments include a challenge as to whether the court can permit an amendment under CI 16 a subsidiary legislation, to cure a defect under substantive law: the Legal Profession Act, Act 32, which is being canvassed against the grant of the application.


The application, for the reason aforesaid is incompetent and must be discountenanced. It is accordingly dismissed.