AGYEMANG JA:

On the 30^th of July 2012, the High Court Human Rights Division entered judgment for the plaintiff/respondent/applicant (hereafter referred to as the plaintiff) in a suit brought against the defendants/appellants/respondents (hereafter referred to as the defendants). The latter brought an appeal against the said decision before this court. On the 4^th of February 2016, this court delivered judgment in favour of the defendants. The plaintiff, aggrieved by the said judgment filed a notice of appeal per solicitor. On the face of the notice of appeal, the firm name Oseawuo Chambers appears under a signature. The name of the solicitor does not appear, nor is his/her licence number indicated.

The defendants per solicitor filed a notice of motion on the 11^th of May 2016, praying for an order striking out the appeal for non-disclosure of the name and number of the appellant. It was the contention of the defendants as applicants that the notice of appeal signed by a firm of solicitors Oseawuo Chambers and not a practising lawyer was incompetent.

The plaintiff filed an affidavit in opposition by which she denied the allegation of incompetence.

Before the application could be heard, learned counsel for the plaintiff raised a preliminary objection to the application on two grounds: the competency of a single Justice of this court to hear the instant application, and the competency of the Court of Appeal to deal with the application.

On the invitation of the court, the parties have filed written submissions.

Having read the written submissions of both parties, it is my view that the preliminary objection raised by the applicant has merit.

I say this having regard to both grounds of objection, being (1) the challenge of the competency of a single justice of this court to hear and determine the instant application and, (2) the competency of the Court of Appeal to deal with this matter which is before the Supreme Court.

The jurisdiction of a single Justice of this court is contained in Article 138 of the 1992 Constitution which reads: “A single Justice of the Court of Appeal may exercise a power vested in the Court of Appeal not involving the decision of a cause or matter before the Court of Appeal…”

Learned counsel rightly set out three incidents form the jurisdiction thus set out being: the Single Justice

(1) can only exercise the jurisdiction that is vested on the Court of Appeal;

(2) the appeal must be pending before the Court of Appeal;

(3) can only exercise such power as does not involve a decision of the appeal.

In the instant case, not only is the appeal no longer before the Court of Appeal with the lodging of the notice of appeal to the Supreme Court at the Registry of the court (a matter which sins against the third incident), but even if it were, the decision as to whether an appeal ought to be continued in existence was a matter that affected the appeal, and was outside the jurisdiction of the single Justice as set out.

There is no gainsaying that the Court of Appeal is vested with jurisdiction with regard to interlocutory matters which include post-judgment matters and that applications relating to an appeal filed at its Registry may be handled by it until the record of appeal is transmitted to the Supreme Court before which the appeal is said to be pending. Yet we find that the instant matter is not a post-judgment application, but an application that affects an appeal before the Supreme Court, not this court. Thus, although the appeal has not been entered at the Supreme Court (as the record of Appeal has not been transmitted to the Registry of that court in accordance with Rule 6 of CI 16 The Supreme Court Rules), this issueraised whichrelates to the competence and continuance of an appeal lodged before it must surely be determined by that court, not by the Court of Appeal before which the appeal is not pending, and certainly not by a single Justice of the Court of Appeal whose powers are limited to matters pending before it and even so, not touching the appeal itself.

The instant application is effectively a preliminary objection to the competency of the appeal that has been lodged before the Supreme Court.This is because a notice of appeal founds an appeal before the Supreme Court; thus, a defective notice of appeal which renders it incompetent, is a jurisdictional issue.In Merah v. Okrah [1984-86] 1 GLR, 400at 409,Adade JSC threw light on the significance of a notice of appeal as that which founds 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...”Clearly therefore, the instant application which seeks to dispose of the appeal pending before the Supreme Court raises a jurisdictional issue which must be determined by that court,seised with the determination of the appeal. The Court of Appeal duly constituted thus has no jurisdiction to deal with the instant application and with that falls the jurisdiction of a single Justice of the court to do so.

The preliminary objection must for the reasons given be upheld.

The application for the striking out of the notice of appeal brought by notice of motion filed on 11^th of May 2016 is accordingly dismissed.

No order as to costs.