IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
MOSES ADJEI AFFUM & ANOR - (Defendants/Appellants)
ABUSUAPANYIN KOFI OWUSU - (Plaintiff/Respondent)
DATE: 27 TH NOVEMBER, 2018
SUIT NO: H1/03/2018
JUDGES: K. A. ACQUAYE JA (PRESIDING), S. KWAKU GYAN JA, M. MABEL AGYEMANG (MRS) JA
MR. KOFI DJIN FOR THE DEFENDANTS/APPELLANTS
MR. KWADWO ADDEAH SAFO FOR THE PLAINTIFF/RESPONDENT
SAEED K. GYAN, JA:
By his Written Submission filed on 15/01/2018 Learned Counsel for the “Defendants/Appellants” had presented this Court with a clearly incongruous “appeal”.
On the very first page of Learned Counsel’s aforesaid Written submission he delivers himself thus:
“The Defendants appeal will encompass the two rulings Her Ladyship Justice Barbara Ward Acquah (Mrs) J, delivered on
1. 25th January 2016 (captured on pages 150-151 on Records of Proceedings volume one) and
2. 15th July 2016 (captured on page 181-183 on Records of Proceedings volume Two).
The Defendants aggrieved by these two rulings have filed this appeal. The grounds of Appeal are found on pages 184-185 on Record of Proceedings. There are seven grounds of Appeal” (Emphasis provided)
Learned counsel then proceeded to “consider” his grounds of appeal “in the reverse order starting with ground f” to the effect that “the Judgment of 21st April 2015 is unassailably sound and the Ruling of 25th January 2016 is void”.
The Notice of Appeal relevant to this case can be found on page 184 of the Record of Appeal. (Volume Two). It was filed on 20th July 2016.
That Notice of Appeal was clearly stated to be against “the ruling of Her Ladyship Mrs Barbara Ward Acquah Justice sitting at the High Court, Koforidua on the 15th day of July 2016…” which appears on page 181 of the said record of appeal.
The reliefs sought in the appeal were two fold, namely;
“a) The whole ruling be set aside
b) Defendants’ application be granted”.
The grounds of appeal contained in the Notice of Appeal filed on 20/7/2016 are set out in full as follows:
a) The ruling of Her Ladyship is not supported by the law.
b) The ruling of Her Ladyship is not supported by the evidence
c) i) The learned Judge erred on the facts when she held that the defendants intended to move their motion on ground of fraud and not on grounds of mistake and suppression of material facts as they claimed.
ii) The learned Judge erred in law when she held that because Defendants had intended to move the motion on the grounds of fraud they could not in law move the motion at all and therefore the order setting aside the judgment remained
d) The learned Judge erred in law when she held that failure of Plaintiff’s Lawyer to serve his client, the Plaintiff, with the notice of his withdrawal rendered the subsequent proceedings void.
e) The learned Judge erred on the facts and in law when she held that Plaintiff did not know the Defendants intended to pursue their counterclaim and therefore the subsequent Judgment was void as Plaintiff was served with hearing notice on the 18th January, 2014 days after the Plaintiff’s lawyer withdrew from the case on 15th January 2014 and Plaintiff was subsequently on 26th February 2014 represented by a Lawyer at whose instance the date of 5th May 2014 was taken for the counterclaim to be heard and was hear.
f) The Learned Judge failed or refused to set aside a void decision.
g) Further ground(s) of appeal will be filed on receipt of the record of Proceedings.
No further or additional grounds of appeal were filed.
It is worth noting at this early stage that the written submission of Counsel for the defendants/Appellants herein substantially make rather strange reading in the sense that references or allusions are made therein to supposed findings or observations by the Learned Judge in the impugned ruling of 15th July, 2016, which cannot be traceable to the said ruling and, accordingly, cannot be said to be borne out by the record of appeal.
Not surprisingly, Learned Counsel for the Plaintiff/Respondent had cause, in the preliminary observations contained in his Written submissions, to decry the whole appeal in the seemingly grubby manner as follows:
“….. the entire Appeal (ie Notice of Appeal and statement of case) is untidy, the grounds poorly constructed and not in accordance with the Rules of Court. Further, the arguments do not follow sequentially and contains lots of insinuations and attacks on Counsel for the Plaintiff and the trial High Court Judge”.
Counsel charged further thus:
“…… though the instant Appeal is against the Ruling of the High Court dated 15th July, 2016 the statement of case filed by the Appellant states among others that the Appeal is against the two Rulings of the trial High Court dated 25th January, 2016 and 15th July, 2016”.
A little background to this case may not be out of order.
The Plaintiff/Respondent (hereinafter referred to as Plaintiff or Respondent) in 2003 commenced action against the Defendants/Appellants (referred to hereafter as Defendants or Appellants) at the High Court, Koforidua, seeking a declaration of title to certain landed properties, recovery of possession, General damages for trespass and perpetual Injunction.
The plaintiff sued as Head of family of the Oyoko family of Sakyikrom to which family the Defendants’ father, the late Opanyin Affum Yaw Okafana, allegedly belonged and in connection with property which the Plaintiff contended belonged to the said Oyoko family.
The Defendants maintained that the said properties belonged to their late father, that they derived their interest in the disputed property from their father who, in any event, did not belong to the Plaintiff’s line of the Oyoko family. They counter-claimed for the same property.
The pleadings suffered many amendments on both sides.
The Plaintiff appointed a lawful Attorney to prosecute the case on his behalf. The case went through the hands of four Judges.
Trial of the case eventually started before Kwofie, J. (as he then was). The trial, however, stalled mid-way when it became apparent that the Plaintiff’s Lawful Attorney had suffered a Mental challenge.
On 17/5/2012, the trial judge in the absence of the Plaintiff, his Lawful Attorney and the Plaintiff’s Lawyer struck out the suit for want of prosecution on the ground that he could not continuously adjourn the case (see page 75; Vol. 1 of the record).
Subsequent to the Plaintiff’s action being struck out, the Defendants, on 26/6/2013, applied for and were later granted leave to ament their statement of defence and counter-claim.
Having on 16/7/2013 filed “Notice of Withdrawal of Representation”, the Lawyer for the Plaintiff was on 15/1/2014 formally granted leave to withdraw from the case on the ground that he had lost “track” with his client (page 94 of Vol. 1).
On 5/5/2014, the trial judge after some initial reservations, acceded to the request of the Defendants’ Lawyer and, accordingly, directed the Defendants to lead evidence, in the absence of the Plaintiff and his Counsel. (see Vol.1, page 100). Their evidence was immediately taken, following which the Learned judge adjourned the case to 20/6/2014 “for judgment” (see Vol.1, page 101).
This was clearly a tragic and fatal slip in the trial process which the respected Learned judge should never have suffered to occur.
The Court notes for 20/6/2014 show that the case was further “adjourned to 18th July, 2014 for judgment” (Vol.1, page 102).
It is worth noting that the parties were absent on the said 20/6/2014. Only the Lawyer for the Defendants was recorded to be present on that day. But, the Court did not order Hearing Notice to be served on the parties in respect of the further adjournment of the case to 18/7/2014 for judgment
The record shows at page 103 (vol.1), however, that the judgment was eventually delivered on 21st April 2015
It went in favour of the Defendants. The record does not establish that the Plaintiff was duly notified about this 21/4/2015 date for judgment in the case.
On 25/11/2015, Dr Kwaku Addeah filed a notice of appointment of Lawyer for the Plaintiff and proceeded to apply to avoid and set aside the court’s judgment in favour of the Defendants, dated 21/4/2015.
On 25/1/2016 the trial court, differently constituted, set aside its said earlier judgment of 21/4/2015.
The Defendants did not file any appeal against the decision or order which set aside the judgment of 21/4/2015.
Rather, the Defendants filed a Motion for review of the Court’s decision of 25/1/2016. However, before the application was heard, the Defendants, on 3/3/2016, filed another motion seeking to set aside the Court’s ruling of 25/1/2016. Both applications were, incidentally, withdrawn.
On 25/4/2016, the Defendants filed a new motion seeking to set aside the same decision or ruling of 25/1/2016.
Upon a preliminary legal objection apparently being raised by Counsel for the Plaintiff, this fresh application was struck out by the Court on 15/7/2016 for being incompetent.
Feeling aggrieved and dissatisfied with the Court’s aforesaid decision of 15/7/2016, the Defendants, on 20/7/2016, commenced the instant appeal seeking the reliefs noted earlier on in this judgment.
In this appeal, the Defendants have urged this Court to simultaneously set aside the decision of the trial Court dated 15/7/2016 as well as its earlier decision of 20/1/2016 which set aside the said Court’s judgment in the case dated 21/4/2015.
On their part, the Plaintiff has insisted that the Defendants’ current appeal is incompetent and ought not to be entertained.
I have carefully examined the record of appeal and considered, in particular, the motion which triggered off the present appeal together with the submissions filed by Counsel on behalf of their respective parties.
It is worth stressing the basic legal principle that the appeal process is strictly regulated by statute and that there is no inherent right of appeal in any litigant. See: FRIMPONG AND ANOR VS. NYARKO (1998-99) SCGLR 734; ZABRAMA VS. SEGBEDZI (1991) 2 GLR 221.
Rules 8 (4-6) of the Court of Appeal Rules, 1997 (C.I.19) specifically prescribe the mode and manner in which grounds of appeal must be formulated and set out in a notice of appeal.
Rules 8 (4-8) of C.I. 19 provide as follows:
4) Where the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively.
6) A ground which is vague or general in terms or which does not disclose a reasonable ground of appeal is not permitted, except the general ground that the judgment is against the weight of the evidence.
7) A ground of appeal or a part of the appeal which is not permitted under subrule (6) may be struck out by the Court of its own motion or on application by the respondent.
8) The appellant shall not, without the leave of the Court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal on the terms that the Court thinks just.
In the case of F.K.A. CO. LTD AND ANOR VS. NII AYIKAI AKRAMAH II AND 4 ORS (2016) 101 GMJ 186 the Supreme Court of Ghana speaking forcefully through Akamba JSC delivered itself to the following effect;
“………It is important to stress that the adjudication process thrives upon law which defines its scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision be it substantive law or procedural law. As Courts if we fail to enforce compliance with the rule of Court, we would by that lapse be enforcing the failure of the adjudicating process which we have sworn by our judicial oaths to uphold……..
As Courts by law we administer justice according to law and equity which are strictly guided by laid down rules fashioned out over the centuries to guide our conduct. In AYIKAI VS. OKAIDJA III (2011) SCGLR 205 this Court did stress the fact that non-compliance with the rules of Court have very fatal consequences…….”
In the aforesaid F.K.A. CO. LTD case (supra) the Supreme Court proceeded to strike out all but one of the seventeen (17) grounds of appeal filed in the case as falling foul of the Supreme Court Rules.
In the instant case, the Appellants’ grounds of appeal are problematic since they seem to me to fall foul of the Court of Appeal rules.
Now, the Defendants’ first ground of appeal (a) sins against Rule 8(4) of C.I.19 in so far as it fails to particularize the error of law alleged. See: DAHABIEH VS. S.A. TURQUI AND BROTHERS (2001-2002)
The aforesaid ground (a) is accordingly struck out.
In any event, Counsel for the Defendants/Appellants discretely abandoned grounds (a) and (b) and they are accordingly struck out as abandoned.
Ground (f) is recorded as follows:
“(f) The learned Judge failed or refused to set aside a void decision”
This ground of appeal sins against Rule 8(6) of C.I.19 in that it is obviously vague or general in terms and does not disclose a reasonable ground of appeal. Ground (f) is accordingly struck out.
Grounds (d) and (e) are particularly problematic. Ground (e)specifically is argumentative and clearly offends Rule 8(5) of C.I.19.
Additionally, a proper examination of the trial Courts ruling of 15/7/2016 satisfies me that the complaints contained in grounds (d) and (e) fly in the face of the said ruling and are clearly and distinctly unrelated to the said ruling at all.
The said two grounds can more properly be regarded as a throw back to or referable to the decision or ruling of 25th January, 2016. This is obviously a misappreciation and misapprehension of the process of appeal as they apply in this Country.
As alluded to earlier on in this judgment, Counsel for the Appellants in his written submission filed on 10/01/2018 advertised the fact that the “Defendants appeal will encompass the two rulings” of Her Ladyship Justice Barbara Ward Acquah dated 25/1/2016 and 15/7/2016.
Counsel had clearly misdirected himself and was accordingly wrong in assuming that he could file one notice of appeal to affect or attack two separate judgments, decisions or orders delivered on totally different dates or days.
As appropriately pointed out earlier, the appeal process in this country is regulated entirely by statute which also defines or sets out the time lines by which particular appeals may be filed.
For instance, Rule 9 of C.I.19 sets time limits for appealing. There are different time limits for interlocutory decisions and final decisions.
It is impermissible to couple two or more appeals in a single notice of appeal when the decisions are contained in the judgments delivered on different and separate dates.
The notice of appeal to which the instant appeal is referable and applicable deals with the decision of Her Ladyship Mrs. Barbara Ward Acquah dated 15th July 2016. (see Vol. 2, page 184 of the record of appeal).
The Defendants had failed or neglected to appeal against the decision of 25th January 2016. They cannot by a side wind attempt to embroil that interlocutory decision with the determination of the Court’s other interlocutory decision of 15th July 2016.
The Court of Appeal Rules (C.I.19) do not grant this Court the power to extend time for filing an appeal against an interlocutory decision. See: XL INSURANCE SWITZERLAND AND CO. VS. GEMINI MARITIME SERVICES (2010-2012) 2 GLR AT 514.
To seek, therefore, to encompass two separate decisions in a single notice of appeal is to risk nullifying the appeal unless it is severable.
That being so the arguments or submissions made in support of the aforesaid ground (d) and (e) are inappropriate and inadmissible and are accordingly discounted and rejected in this appeal.
Counsel for the Plaintiff/Respondent had drawn attention to the attempt by counsel for the Defendants to drag the issue of the Plaintiffs want of capacity into the instant appeal without seeking leave of the Court to amend their grounds of appeal.
Counsel’s complaint is well grounded and is accordingly upheld without much addo.
Rule 8 (1) of C.I.19 provides that an appeal to the Court of Appeal shall be by way of rehearing. That being so this Court is enjoined to examine and consider the entirety of the record to come to a just and proper determination of the matter before it.
This is without prejudice to the basic principle of law that the burden of proof lies on the appellant to establish that the impugned decision has no support in the evidence and the material on record.
In other words, the appellants assumed the burden to show the exact error of law committed by the trial judge. The lapses in the judgment must be satisfactorily demonstrated.
See: OKUNOR VS. OKAN (1977) 1 GLR 173; BOATENG VS. BOATENG (1987-1988) 2 GLR 81; DJIN VS. MUSAH BAAKO (2007-2—8) SCGLR 686.
It must be noted that the Defendants application before the trial Court which triggered off the instant appeal agitated the discretion of the Court below, as, of course, it does to this Court as well.
Kingsley-Nyinah JA (as he then was) pointed out in the case of AKUNOR VS. AKUNOR (supra) that:
“……….. A discretionary remedy …….. must be fought for and justly won upon a clear preponderance of convincing facts satisfying the conscience of the trial court that it would not be inequitable to grant the claimant the reliefs he has sought….”
Viscount Simon LC on his part once declared as follows:
“ The law as to the reversal by a Court of Appeal of an order made by a judge below on the exercise of his discretion is well established and any difficulty that arises is due to the application of well established principles in an individual case…...
The Appellate Tribunal is not at liberty merely to substitute its own discretion for the discretion exercised by the Judge. In order words Appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way.
But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or sufficient weight has been given to relevant considerations, such as those urged before us by the appellant, then the reversal of the order on appeal may be justified” See: CHARLES OSENTONE & CO. VS. JOHNSTONE (1942) AC 130 HL
On his part, Kay LJ delivered himself in the case of KENKINS V. BUSHBY (1891) I CH 48 thus:
“In a question of discretion, authorities are not of much value. No two cases are exactly alike and even if they were the Court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect putting an end to discretion”.
See also: AGYEMAN VS. GHANA RAILWAY AND PORTS AUTHORITY (1969) CC 60. PER AKUFFO ADDO, CJ
In KYENKYENHENE VS. ADU (2003-2004) 1 SCGLR 142 the Supreme Court emphasised that in the exercise of his discretion the judge must demonstrate fairness and fidelity to clear principles; that the Judge must not misapprehend the evidence or fail to give critical consideration to relevant issues. In other words, the exercise of the Court’s discretion mist not be arbitrary, capricious and uninformed, see also article 296 (a) and (b0 of the 1992 constitution of Ghana.
How does the appellant’s appeal fare in the light of the forgoing discussion of the law?
As indicated previously I have examined the record in this case, considered the judgment which is the subject of the instant appeal and considered the matters discussed in the written submissions filed in this case on behalf of the parties herein.
Was the Learned Trial Judge right or justified in her determination of the case before her, in all the circumstances confronting the Court? If her decision or determination is not wholly justifiable, is it nonetheless supportable and/or sustainable on the evidence and material contained in the record of appeal?
In the Court below, Counsel for the Plaintiff had raised an objection to the competence and propriety of the Defendant’s application. It was the view of Plaintiff’s Counsel that the Defendants were pressing the issue of fraud under the cloak and disguise of innocent suppression of facts or mistake.
The Learned trial judge, in my respectful view, gave close and proper consideration to the issue raised and came to the conclusion that the objection raised by Counsel for the Plaintiff had merit in law and, accordingly, upheld it.
The Court made the considered decision that its earlier ruling of 25th January 2016 was not VOID and that the procedure adopted by the Defendants in their attempt to set it aside was flawed as it “precariously” hinged on allegation of fraud or wilful misrepresentation.
I do not consider that the trial judge was guilty of any wrongful exercise of discretion in her determination of the case. I do not find that the Learned trial judge in the exercise of her undoubted discretion was influenced by irrelevant considerations to warrant a reversal of her decision by this Appellate Court.
I would proceed further and say that in all the circumstances of this case, the decision of the Learned Judge below was wholly justifiable, supportable and sustainable both on the facts of the case and in law.
No circumstances of any weight could have justified any decision which necessarily implied the setting aside of the Court’s decision of 25th January 2016, through the back-door contrivance of the Defendants motion filed on 25/4/2016 purportedly to set aside “VOID ORDER” of the Court dated 25/1/2016.
In the event, I find no merit in the Defendants’ appeal and, accordingly, have no hesitation in dismissing the same.
Consequently, the Ruling or decision of the trial Court dated 15th July 2016 is hereby endorsed and confirmed.
SAEED KWAKU GYAN
(JUSTICE OF THE COURT OF APPEAL)
I AGREE ………………………
K. A. ACQUAYE
(JUSTICE OF THE COURT OF APPEAL)
I Also Agree ………………….
MABEL AGYEMANG (MRS)
(JUSTICE OF THE COURT OF APPEAL)