IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
IN THE MATTER OF AMA GYAMFUAH - (Applicant)
PINAMANG GENFI AND IN THE MATTER OF THE REPUBLIC - (Defendant)
THE DISTRICT MAGISTRATE COURT, KUMASI EXPARTE PINAMANG GENFI - (Respondent)
DATE: 28TH NOV 2018
SUIT NO: H1/30/2018
JUDGES: MARIAMA OWUSU J.A (PRESIDING), HENRY A. KWOFIE J.A, AMMA GAISIE J.A
HENRY KWOFIE J.A:
This is an appeal against the judgment of the High Court, Kumasi dated the 7th of December 2012. The judgment the subject of the appeal followed an application by the defendant/applicant/appellant Pinamang Genfi for Judicial Review in the nature of certiorari to quash the judgment of the District Magistrate Court, Kumasi. The High Court dismissed the application.
The facts of the case culminating in this appeal are that the plaintiff/interested party issued a writ of summons against the defendant/applicant/appellant at the District Court, Kumasi for the following reliefs:
i) an order for a declaration of title and recovery of possession of all that piece and parcel of land situate at a place commonly called SUAME-KUMASI Plot No. 18 Block A “Site S and sharing boundaries with Nurom Hotel which the defendant has presently trespassed unto.
ii) An order for ejection of defendant from the said parcel of land forthwith.
Judgment was given on the 17th February 2012 in favour of the interested party who was the plaintiff by the District Court, Kumasi presided over by His Worship K.B. Filson.
The defendant/applicant/appellant aggrieved by the said decision and contending that the District Court had breached the rules of natural justice applied to the High Court for an order of Judicial Review in the nature of Certiorari to quash the said judgment. The High Court upon hearing the application dismissed same on 7th November 2012 and the judgment thereof is the subject matter of this appeal. By a Notice of appeal filed on 28th June 2013 pursuant to an order for extension of time to appeal granted on 24th June 2013, the defendant/applicant/appellant lodged the instant appeal on the following grounds:
b. Additional grounds to be filed on receipt of record of proceedings
Pursuant to leave granted by the Court of Appeal on 20th December 2017, the applicant/appellant filed three (3) additional grounds of appeal as follows:
i) The High Court judge misconstrued the case of the defendant/applicant/appellant and disabled himself from making a fair and impartial decision when he stated that land matters require more stringent proof whereas the matter before him was not a land matter but an application for certiorari
ii) The High Court judge misconstrued the case of the defendant/applicant/appellant and disabled himself from making a fair and impartial decision when he stated that:
“there is evidence that the applicant had committed the very indiscretion she complained about” and that “how can the applicant say her counterpart had been visiting the trial magistrate in the chambers when she did the very thing she complains about”
iii) That the High Court judge erred when he said most of the complaints levelled by the applicant had been answered convincingly by the adversary whereas the germane issue of delivering judgment when the defendant/appellant had not been heard was not addressed and determined by him.
The judgment appealed from described in the Record of Appeal as ruling is at pages 32 and 33 of the Record of Appeal whilst the Notice of Appeal filed on 28th April 2018 is at page 34 of the Record of Appeal.
Counsel for the applicant/appellant in arguing the appeal argued ground I of the original ground of appeal then ground 2 and 3 of the additional ground of appeal. Both counsel for the respondent/respondent and the interested party/respondent also filed written submissions.
Having perused the written submissions of counsels in the case, I have found it unnecessary to discuss all the arguments made in support and against the appeal because I have decided to rest the decision in this appeal on a legal point raised by counsel for the plaintiff/interested party touching on the propriety of this appeal. Counsel for the interested party has submitted that the instant appeal is not properly before the Court and same should be dismissed in limine. Counsel referred to rule 9 of the Court of Appeal Rules 1997 (C.I.19) dealing with the time limit for appealing and contended that although the appeal was filled pursuant to an extension of time granted by the Court of Appeal, the appeal was nevertheless filed outside the statutory period. Although counsel for the interested party raised this legal point in his written submissions filed on 27/07/2018, counsel for the defendant/applicant/appellant has to date not responded to this legal point.
The record of appeal shows that the judgment of the High Court that is the subject of appeal was delivered on 7th November 2012 (see pages 32 and 33 of the Record of Appeal). On the 24th of June 2013 the Court of Appeal granted the defendant/appellant extension of time to appeal. Pursuant to this order, the appellant filed the Notice of Appeal to this Court on 28th June 2013.
By a simple computation of time, it is obvious that even as at the 24th day of June 2013 when the Court of Appeal granted the appellant extension of time to appeal, the appellant was already out of time having regard to the fact that the judgment the subject of appeal was delivered on November 2012 a period of more than seven months before the extension of time was granted by the Court of Appeal.
“9 Time limits for appealing
(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.
(3) An appeal is brought when the notice of appeal has been filed in the Registry of the Court below.
(4) No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought
(6) Where the extension of time is granted a copy of the order granting the extension shall be attached to the notice of appeal.
(7) Notwithstanding rule 28 of these Rules, no application shall be made to the Court for extension of time within which to appeal after six months from the date of the decision appealed against”
The rules regulating appeals were summarised by Akuffo Addo JSC in the case of Nye Vrs. Nye (1976) GLR 76 at 82-82 (C.A. full Bench) as follows:
“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 statute, and unless the enactment creating the right of appeal is explicit, clear and unambiguous in its language, no such right and no such power can ever materialise. When however, the right and the power do materialise, they are exercisable only within the framework of the conditions imposed for their exercise”
Also, in the case of Frimpong and Another Vs Nyarko (1998-99) SCGLR 734 which dealt with the appellate jurisdiction of the Supreme Court in respect of appeals from the Judicial Committee of the National House of Chiefs, it was held in holding 2 as follows:
“(2) The Court’s authority to waive, amend, rectify or regard as fatal an error committed by a party is dependent upon the scope of the Court’s jurisdiction to exercise a discretion, if any, in the matter….
The Courts are not inclined to waive or correct an error of one party intended to overreach or defraud the other, even if the matter lies within their discretion. And where the error is fundamental or goes to the jurisdiction of the court, thereby exposing the court’s incompetence or lack of jurisdiction in the matter in which the said error was committed (as in the instant case), the Court is incompetent to correct or waive such an error. Dictum of Bowen LJ in Cropper V Smith (1884) 26 Ch D 700 at 710, CA cited.
Also, in Sandema Nab Vrs Asangalisa (1996 – 97) SCGLR 307, the Supreme Court had this to say per
Acquah JSC at page 307:
“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 special leave, the right is to be exercised within the four corners of the statute and the relevant procedural regulations, as the Court will not have jurisdiction to grant deviations outside the parameters of the statute”
See also, in the case of Tindana Vrs Chief of Defence Staff & Attorney General No. 2 (2011) 2 SCGLR 732
Thus, an appellant who is vested with the statutory right of appeal must comply with all provisions of the statue creating such a right. In this instant case as already indicated the judgment of the High Court the subject of appeal was delivered on 7th November 2012. The Court of Appeal granted the defendant/appellant extension of time to appeal on the 24th of June 2013.
Clearly at the time the Court granted the appellant the extension of time to appeal, she was already out of time, that is the extension of time was granted seven and half months after the judgment of the High Court.
Therefore, when the appellant filed the Notice of Appeal on 28th June 2013, she was way out of time having regard to Rule 9(4) and Rule 9(7) of the Court of Appeal Rules 1997 (C.I. 19) which provides that:
9(4) No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought
9(7) Notwithstanding rule 28 of these Rules, no application shall be made to the Court for extension of time within which to appeal after six months from the date of the decision appealed against”
In my view, it appears that their Lordships in granting the extension of time to appeal on the 24th of June 2013, did not advert their minds to the fact that the appellant was already out of time and they must have thought that everything was in order.
The plain language of Rule 9(7) of C.I.19 is that no application for extension of time to appeal against a final decision of the High Court or Circuit Court shall be filed after six months from the date of the delivery of the judgment.
In Tindana Vrs. Chief of Defence Staff and Attorney General (No. 2) it was held at page 473 as follows by the Supreme Court per Anin Yeboah J.S C:
“We think that the condition precedent to the exercise of the right of appeal within a specified time frame cannot be waived by any Court and indeed, the power conferred in our Court to extend time in circumstances that they deem fit is a recognition that beyond the statutory indulgence that is expressly authorised by statute, any appeal filed out of the initial period of three months and in the period allowed for extension of time would be incompetent and could be raised at the hearing of the appeal. When this happens, the order extending time would be set aside…………….”
In my view the point about the appeal having been filed out of time and therefore not properly before this court is unanswerable. Accordingly, the order extending the time within which to appeal is hereby set aside and the notice of appeal having been filed outside the six (6) months period was a nullity and confers no jurisdiction on this Court to determine the appeal.
For these reasons the instant appeal is struck out as incompetent.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I Agree ………………………
(JUSTICE OF THE COURT OF APPEAL)
I Also Agree …………………..
(JUSTICE OF THE COURT OF APPEAL)