IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ANDREW NII KOI DSANE & ORS - (Plaintiffs/Appellants]
BENJAMIN AMON DSANE & 3 ORS - (Defendants /Interested Party/Respondents)
DATE: 15TH NOVEMBER, 2018
CIVIL APPEAL NO: H1/56/2018
JUDGES: GYAESAYOR J.A. (PRESIDING), SOWAH J.A., GAISIE J.A.
MR. S. K. AMOAH FOR PLAINTIFFS/APPELLANTS
MR. ALBERT ADAARE FOR INTERESTED PARTY/RESPONDENT
The plaintiffs/appellants issued a writ of summons against the defendants for the following:
1. An order setting aside the statutory declaration of ownership of land at Oyibi purportedly made by the defendants in respect of the plaintiffs’ ancestor Nee Okan Tsru Dsane of Teshie’s land at a place known and called Wodormiabra near Oyibi and registered as Land Registry No. 423/1985
2. Declaration of title
3. Damages for trespass
4. An order setting aside any alienation of the said land by defendants to any person or persons or group of persons or organizations.
5. Recovery of possession.
The 1st and 2nd defendants' threw in the towel and announced to the court that they no longer wished to defend the suit. The other defendants' do not appear to have participated in the trial which followed. The plaintiffs' went ahead to testify and based on the unchallenged evidence of the 1st plaintiff, the trial High Court entered judgment against the defendants on 12th June 2014 on all the reliefs claimed.
The plaintiffs served the occupiers of the land including Valley View University, the Interested Party/Respondent herein with an Entry of Judgment and applied for a Writ of Possession to issue. The Interested Party/Respondent [hereafter called the respondent] opposed the application and applied for Relief.
In a Ruling dated 9th February 2017, [at page 178-179 of the Record of Appeal] the court refused the appellants' application for writ of possession to issue to enable them to go into execution against Valley View. The trial judge was of the view that the respondent was entitled to remain in occupation pending determination of a suit over ownership of the same land which the respondent was defending against different claimants to the knowledge of the appellants'. That Ruling is the subject of this appeal.
The appellants' Notice of Appeal which was filed on 4th May 2017 [see pages 180-181 of the Record] has the following grounds:
i. The learned trial Judge erred by failing to allow the plaintiffs/appellants to levy execution against the interested Party/Respondent
ii. The ruling is against the weight of the evidence
The appellants' are praying this court for the following reliefs:
i. An order setting aside the ruling of the High Court.
ii. An order granting the Plaintiffs/Appellants a writ of possession against the Interested Party/Respondent in respect of the land in dispute.
It is trite learning that an appeal is a creature of statute and jurisdiction must be expressly conferred. No right of appeal exists save such as is conferred by statute. See: In re Amponsah  G.L.R.140, Frimpong vs. Poku  2 GLR 1 S.C. and Nye vs. Nye  G.L.R. 76 C.A. (full bench) at 83. In Nye vs. Nye, then Chief Justice Akufo-Addo reiterated that the right of appeal and the power of any court to hear appeals are both creatures of statute. He said:
"When… the right and the power do materialise they are exercisable only within the framework of the conditions imposed for their exercise."
In Karletse Panin vs. Nuro  GLR 194 at 209, the Court of Appeal per Francois J.A. (as he then was) noted that 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 affecting the appeal he would be forever barred from re-litigating his cause. He explained the nature of this peremptory rule in the words of Akufo-Addo J.S.C in Frimpong v. Poku [supra] at p.6, S.C.
"A right of appeal is always conferred by statute, and when the statute conferring the right lays down conditions precedent to the vesting of that right in a litigant it is essential that those conditions must be strictly performed, otherwise the right does not become vested."
It is therefore obligatory for an appellate court in every appeal to ascertain that its jurisdiction has been properly invoked.
Although neither lawyer in this appeal raised the issue of the competency or otherwise of the Notice of appeal, however since it is a crucial issue that goes to jurisdiction, it is proper for an appellate court to raise the issue suo motu since any judgment given without jurisdiction will be a nullity. Thus, I first address the issue whether the jurisdiction of this court has been properly invoked in accordance with law.
Archer JA (as then was) in the case of Asare v Brobbey  2 GLR 331, at page 338, quoting from
Phillips vs. Copping  1 KB 15 at 21 stated that:
‘It is the duty of the Court when asked to give judgment contrary to a statute to take the point although the litigants may not take it”
It is trite that a court adjudicating any matter may raise a point of law propio motu on its own motion. Ideally, the parties ought to be offered the opportunity to argue the point raised. However, in this present case, I am of the considered view that it would not serve any useful purpose to hear addresses from learned counsel since the point of law raised is clearly unanswerable to admit of any legal argument. Tindana vs. CDS & 2 ors.  2 SCGLR 724 applied.
Article 137 of the 1992 Constitution and section 11 of the Court’s Act 1993, Act 459 confers on an applicant, the right to appeal from the decision of the High Court to the Court of Appeal. This is regulated by the Court of Appeal Rules, 1997 (CI 19). In order to be entitled to exercise a right of appeal, the appellant must come within the provision of the statute creating such a right
Rule 9 of the Court of Appeal Rules 1997, C.I. 19 (as amended) provides the time limits for appealing.
Rule 9(1)(2) states:
9(1) Subject to any other enactment for the time being in force, no appeal shall be brought after the expiration of—
(a) twenty-one days in the case of an appeal against an interlocutory decision; or
(b) three months in the case of an appeal against a final decision unless the court below or the Court extends the time.
(2) The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against.
Whilst Rule 9 permits applications for extension of time in which to appeal a final decision after the expiration of the three months prescribed by the Rule within which an appeal may be brought, there is no such provision in respect of interlocutory appeals. The interpretation that has been put on Rule 9(1) of the Court of Appeal Rules 1997 C.I. 19 is that, whilst time can be extended by the court in the case of a final decision, no such extension is permitted under the rules in respect of interlocutory decisions. The Supreme Court in Bosompem vs. Kwame Tetteh  1 SCGLR 397 held that no extension of time can be granted in interlocutory appeals which must be filed within 21 days as of right. In effect unless one strictly complies and files his appeal against an interlocutory decision within 21 days, he is out of time and cannot be heard on the matter
The Court of Appeal has no jurisdiction to extend time when the 21 days to appeal an interlocutory judgment has lapsed.
Of course the fundamental question is whether the Ruling being appealed which refused to grant the application for Writ of Possession is a final or interlocutory decision.
Without question, on the facts, in law, and as has been consistently decided, the decision being appealed is interlocutory. The matter on appeal is a post judgment application for a writ of possession which was refused. The Ruling did not determine the final rights of the parties.
The criterion for distinguishing a final from an interlocutory order has come before the courts a number of times and the test generally accepted is that for a judgment or order to be described as ‘final’, it must have finally disposed of the rights of the parties.
In Axes Co. Ltd vs. Opoku  1 SCGLR 50, the Supreme Court re-hashed the two alternative tests for determining whether an order is final or interlocutory. The court agreed with Francois J.A. (as he then was) in Karletse-Panin vs. Nuro [supra] at 210, CA. when he concluded after examining the relevant cases as follows:
“For Ghana then the test is not to look at the nature of the application but at the nature of the order made. This is one area where the courts of Britain and Ghana have already parted ways and the Ghanaian courts have shown remarkable consistency.”
Earlier in Tawiah v Brako  1 GLR 483 at 486, CA, Jiagge JA (as she then was) was of the same view. She gave the ambit of an interlocutory decision in this country in the following words:
“An interlocutory decision does not assume finally to dispose of the rights of the parties. It is an order in procedure to preserve matters in status quo until the rights of the parties can be determined’
In the recent case of Republic v High Court(Fast Track Division); Ex parte State Housing Co Ltd (No.2) (Koranten-Amoako Interested Party)  SCGLR 185 at 194, Georgina Wood CJ noted thus:
“in our view, a judgment or order which determines the principal matter in question is termed “final”, whilst an interlocutory order has also been defined in Halsbury”s Laws of England(4th ed) vol. 26 para.506 as:
‘an order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory.’”
By Rule 9(1)(b) of the Court of Appeal Rules, the applicant had 21 days within which to lodge an appeal against the High Court’s Ruling since the Ruling was interlocutory and not a final decision.
The Ruling being appealed was delivered on 9th February 2017 whilst the appeal was filed on 4th May 2017, over 70 days from the date of the decision appealed contrary to Rule 9(1)(a) of the Court of Appeal Rules. 1997, C.I. 19
The principle is that jurisdiction of any kind means the power or authority to adjudicate and where it is lacking and a court assumes jurisdiction, any decision emanating from the court is a nullity except a decision to the effect that the court lacked jurisdiction to entertain the matter. See: Kumnipah II vs. Ayirebi [1987-88] 1 GLR 265
A Notice of Interlocutory Appeal filed outside 21 days is incompetent and does not vest jurisdiction in this court. Accordingly, the defective Notice of Appeal which was filed on 4th May 2017 is hereby struck out.
The Appeal is consequently dismissed.
CECILIA H. SOWAH
[JUSTICE OF APPEAL]
GYAESAYOR, (J.A.) I AGREE P. K. GYAESAYOR
[JUSTICE OF APPEAL]
GAISIE, (J.A.) I ALSO AGREE AMMA A. GAISIE
[JUSTICE OF APPEAL]