ACCRA - A.D 2018

SUIT NO:  H1/195/2018


The action giving rise to the present interlocutory appeal was filed on 2nd March, 2006 by the first six plaintiffs against the first three defendants. The other parties were joined as a result of applications for joinder. Whilst the plaintiffs/appellants would simply be called Appellants, the defendants/respondents would be referred to as Respondents.


Upon an application for interlocutory injunction, the court on 21st June, 2013, per exhibit A, at pages 116 to 118 of the record of appeal, made an order restraining both parties from going onto the land pending the final determination of the dispute.


On 22nd March, 2017 upon an application filed on behalf of the 1st and 2nd respondents seeking police assistance to enforce the interlocutory injunction of 21st June, 2013, the court, differently constituted, on 12th April, 2017, granted the application in the face of stiff opposition filed on 10th April, 2017.


It is against this order for police assistance granted on 12th April, 2017 that has culminated in the present appeal, filed on 11th May, 2017 per page 173 of the record of appeal.


In dealing with this appeal, it is necessary to take note of the order that was made on 12th April, 2017 having regard to the fact that the appeal was filed on 11th May, 2017. Blacks Law Dictionary with Pronunciations, 5th edition at page 731 has the following under interlocutory:

“Provisional; interim; temporary; not final something intervening between the commencement and the end of the suit which decides some point or matter, but is not a final decision of the whole controversy.”


At the same page, the following appears under Interlocutory Appeal:

“An appeal of a mater which is not determinable of the controversy, but which is necessary for a suitable determination of the merits.”


In Vanderpuije v. Akwei [1971] 1 G.L.R. 242 at 248, Hayfron Benjamin J, held thus regarding an interlocutory order or decision:

“An interlocutory order is normally an order in procedure, an order in aid of the court’s process and for the proper conduct of the proceedings. An interlocutory decision always affects, either for protection, or as an aid to, the rights of the parties pending the determination of the suit.”


He relied on Akuffo-Addo J.S.C. (as he then was), in Amoako Atta IV v. Nuamah [1963] 1 G.L.R. 432 S.C.


How does a court determine whether an order or decision being appealed against is interlocutory or final? Our courts, like the common law over the years have grappled with the two divergent test or views to wit: the nature of the order approach, and the nature of the application approach.


In Opoku and Others v. Axes and Co. Ltd. [2011] 1 S.C.G.L.R. 50, at holding (2) in the headnote, the majority decision showed that our courts have consistently followed the nature of the order approach. See the judgment of Baffoe Bonnie J.S.C. at page 70.


Before deciding whether the order against which this appeal has been lodged is a final or interlocutory one, it is necessary to consider the rules with regard to appeals:


Rule 8 of the Court of Appeal Rules 1997, C.I.19 deals with Civil Appeals in general, and sets out in sub-rules (2) (a) to (c) how it should be brought; the grounds of appeal; whether the appeal is against the whole or part only of the decision appealed, and state the nature of the reliefs sought.


It is then provided in Rule 9 of C.I.19 as follows:

“9. Time limits for appealing

(1) Subject to any other enactments governing appeals, an appeal shall not 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 for 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 is filed in the registry of the court below.

(4) An application for the extension of time within which to appeal shall not be made after the expiration of three months from the expiration of the time prescribed by this rule by which an appeal may be brought.”


Sub-rule (5) provides for what an application for extension of time should contain, with sub-rule (6) dealing with the orders to be made upon a grant. Sub-rule (7) then provides that an application shall not be made to the court for extension of time within which to appeal after six months from the date of the decision appealed against despite the provisions in rule 28. Sub-rule (8) then provides:

“For the purpose of sub-rule (4) of this rule and of rule 28, where the person has appealed to the court below for extension of time within which to appeal, and after a period of not less than one month the court below fails or refuses to grant the application, the applicant may, subject to sub-rule (5) of this rule, move the court to determine the application.”


From the order made by Oppong J. on 12 April, 2017, it was clearly an interlocutory order or decision as it did not make a final determination of the rights of the parties from the definition and authorities quoted earlier in this judgment. This being the case anybody desirous of appealing against it must file a notice of appeal within the rules, especially rule 9 (1)(a) of C.I. 19. It is clear that sub-rule 1(b) providing for extension of time within which to appeal, relates to a final and not an interlocutory decisions.


The order or decision appealed against was given on 12th April, 2017 per page 168 of the record of appeal.

The notice of appeal, reference page 173 of the record of appeal, was filed on 11th May, 2017. This clearly fell outside the time limit provided in rule 9 (1)(a) of C.I.19.


It would appear that the appeal rules apply the old maxim “time and tide wait for no man”. A party intending to appeal against a decision, final or interlocutory cannot afford to idle around but must make an effort to file the appeal within the time limited by the rules even if it is a final decision as in rule 9 (1)(b) and (4). If time limits did not exist, litigants would go to sleep and nothing will be certain. Parties must therefore pay serious attention to time lines to avoid causing needless expenditure to clients and wasting the time and resources of the courts.


Having failed to file the appeal within the twenty-one days provided by r.9 1(a), and since in this case an application for extension of time cannot be brought in respect of an interlocutory decision, the appellants have failed to evoke the jurisdiction of the court. The language of rule 9 (1)(a) of C.I. 19 is so clear as to admit of no ambiguity.


Before making my final order, let me consider a number of cases on the point that an appellant who files his notice of appeal outside the time limited by the rules has failed to invoke the jurisdiction of the court. In Kudiabor v. Kudanu [1932] 6 W.A.C.A. 14 at 15, where the court below granted leave to appeal in an application filed out of time, the West African Court of Appeal held:

“When, as in this case, the lower court has directly done something contrary to the rules and has assumed to itself a power which is expressly taken away from it, there is no question of it creating an imperfect thing which the Appeal Court may consider and put right. It created nothing, and ex nihil fit.”


In Darke IX v. Darke IV [1984-86] 1 G.L.R. 481 S.C. at holding (2) in the headnote, it was held that an application for review filed on 15th August, 1979 in respect of a decision of 30th July, 1979 was out of time and thus incompetent and the Court of Appeal had no jurisdiction to entertain it having regard to the provisions of section 3 (2)(a) of N.R.C.D. 101 and rule 7(1) of C.I.13 of 1970. In George D. Tay v. Lands Commission (unreported) 30th May, 2018 the Court of Appeal, Coram - Ofoe, Ackah-Yensu and Amadu J.J.A., held that a notice of appeal filed 9 months after final judgment could not be entertained by the court as an appeal to the court must be made within three months and an extension sought within three months and any delay after the six months would be self-induced.


Finally, in Tindana (No.1) v. Chief of Defence Staff and Attorney-General (No.1) [2011] 2 S.C.G.L.R. 724 at 731, the court held that an appeal which was filed long after the three months period required under rule 9 (1)(b) of the Court of Appeal Rules, 1997 (C.I.19), was plainly incompetent resulting in the absence of the jurisdiction of the court to determine it. It then proceeded to set aside the entire proceedings as a nullity.


In the instant case, since the ruling being appealed is an interlocutory one, by the provisions of r. 9 (1)(a) of the Court of Appeal Rules 1997 (C.I.19), it has to be filed within 21 days of the ruling or order sought to be appealed. As the order or decision was given on 12th April, 2017, the notice of appeal filed on 11th May, 2017 was therefore woefully filed out of time and did not invoke the jurisdiction of this court. Accordingly, this appeal is dismissed as incompetent.