IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
RITA ABBAN - (Plaintiff/Appellant/Appellant)
JOSEPH ABBAN & 2 OTHERS - (Defendants/Respondents/Respondents)
DATE: 25 TH OCTOBER, 2018
SUIT NO: H1/183/2018
JUDGES: KUSI-APPIAH J.A, HONYENUGA J.A, ADJEI J.A
MR. D. F. KORSAH-BROWN FOR PLAINTIFF/APPELLANT
MR. MATTEW MIZAH ANYI MIAH FOR DEFENDNATS/RESPONDENTS
On 31st May, 2017, the High Court Accra dismissed an application filed by the Plaintiff/Applicant/Appellant herein to appoint Receiver/Manager to manage the investment, rent and other accruals to the subject matter of the dispute pending the final determination of the matter before that court. The Plaintiff/Appellant dissatisfied with the ruling applied for review under Order 42 of the High Court (Civil Procedure) Rules, C.I. 47. The trial High Court Judge heard the application for review and dismissed same on 31st July, 2017. The Plaintiff aggrieved and dissatisfied with the ruling filed an interlocutory appeal against same on 18th August, 2018.
The Appeal contains two main grounds of appeal and they are as follows”
“i. The ruling is against the weight of affidavit service
ii. The learned Judge erred in law by wrongly exercising his discretion in favour of the defendants/respondents/respondents”.
The Plaintiff did not appeal against the ruling which refused to grant the application to appoint Receiver/Manager of the disputed property. The ruling was delivered on 31st May, 2017 and any appeal against it should have been filed within 21 days from thence. The time within which to file an appeal against a ruling or judgment of the High Court to the Court of Appeal is regulated by Rule 9 sub rule (1) of the Court of Appeal, Rules 1997 (C.I. 19). The relevant provisions provide thus:
“1. Subject to any other enactment 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 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. A appeal is brought when the notice of appeal is filed in the registry of the Court below”.
From the above provision, an interlocutory appeal shall be filed within twenty-one days from the date of the decision appealed against and failure to file it within the prescribed time bars the aggrieved person forever from appealing against it during the pendency of the matter before that Court. The Courts are not seised with jurisdiction to enlarge time within which to file an appeal in interlocutory decisions.
The Review jurisdiction of the High Court under 42 of the High Court (Civil Procedure) Rules, C.I. 47 makes an appeal and review mutually exclusive to a party aggrieved by the decision or ruling of the High Court. Order 42 rule (1) at the High Court Rules provides thus:
“A person who is aggrieved
a. by a judgment or order from which an appeal is allowed, but from which no appeal has been preferred ; or
b. by a judgment or order from which no appeal is allowed may upon the discovery of new and important matter or evidence which , after the exercise of due diligence, was not within the person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order”.
The Plaintiff opted for review of the ruling of the High Court delivered on 31st May, 2017 in which the trial High Court Judge dismissed her application for the appointment of Receiver/Manager of the disputed property. Therefore, the interlocutory appeal filed by the Plaintiff was in respect of the ruling delivered in the review application. This court would have been seised with jurisdiction to discuss the ruling delivered on 31st May, 2017 if the Plaintiff had exercised her right under appeal instead of review. The language of Order 42 of the High Court (Civil Procedure) Rules makes it clear that review application may be brought in a judgment or order which appeal is allowed but no appeal has been filed or a judgment or order from which no appeal is allowed. The Plaintiff could have appealed against the ruling of 31st May, 2017 but she exercised the right of review and not appeal. The Plaintiff can only take benefit under the ruling delivered in the review application.
The first ground of appeal is that the ruling is against the weight of affidavit evidence. The Plaintiff by this omnibus ground of appeal invites this Court to rehear the ruling delivered in the application for review, correct all the errors committed by the trial High Court and apply the appropriate laws to the corrected records. The omnibus ground of appeal filed in either judgment or ruling requires an appellate Court to rehear the matter and correct all errors committed by the trial court. The position is now settled that the omnibus ground of appeal empowers an appellate Court to determine all factual matters as well as some legal issues. In the case of Owusu Domena v Amoah [2015-2016]1 SCGLR 790, the Supreme Court held that the omnibus clause does not clothe an appellate Court with jurisdiction to entertain only factual matters but extends to some legal issues which go to jurisdiction, capacity or burden of proof.
In the case of Djin v Musah Baako [2007-2008]1 SCGLR 686, the Supreme Court discussed the powers of an appellate court when the omnibus ground of appeal is filed. The appellate Court is required to rehear the matter and correct all errors committed by the lower court and further evaluate the corrected evidence in accordance with law. An appellant who alleges that a ruling is against the weight of evidence is required to demonstrate the lapses in the ruling to be corrected by the appellate court. However, it does not absolve the court from correcting errors not raised by the Appellant. Where the error to be corrected is raised by the court suo motu and it is wholly unanswerable, the court may proceed to determine without reference to the parties. On the other hand where the point raised by the Court is answerable, the court is required to give the parties a hearing before proceeding to determine or rule on it.
The Plaintiff in her written submission sated that the trial High Court Judge conceded his failure to advert his mind to the other reliefs and when he decided to do the right thing he further erred by adverting his mind to only two reliefs and left out two other reliefs, that is, a declaration that the 1st plaintiff is entitled to a commensurate proportionate share of the properties she invested in, and an order for the Defendants to refund an assessed amount being the amount the Plaintiff used to repair the properties in dispute. We have examined the record of appeal and all the reliefs sought by the Plaintiff on her amended statement of claim filed on 6th February, 2015 and are as follows:
“i. A declaration that 2nd defendant is incapable of administering the estate of her late husband.
ii. A declaration that the conduct of the 1st defendant constitutes nuisance.
iii. A declaration that 1st plaintiff is entitled to a commensurate proportionate share of the properties she invested in.
iv.. An order for the appointment of the administrator-general to administer the estate of the Professor Dr. Abban and distribute same to all those beneficially entitled.
v. An order for the defendants to buy the 1st plaintiff out of their co-owned property as the first option or in the alternative an outright sale.
vi. An order for the defendants to refund an assessed amount being the amount used to repair and maintain the said properties.
The trial High Court Judge admitted omitting some of the reliefs sought by the Plaintiff in his ruling on the appointment of receiver/manager of the disputed properties and said that his ruling would not have changed should his attention had been drawn to the other reliefs. The trial High Court Judge categorized all the reliefs into two and stated thus:
“I have carefully examined and compared the two sets of reliefs, that is (a) the set that the court relied on in arriving at the decision or conclusion and (b) the set of reliefs set out in the amended statement of claim. The only relevant relief that the court missed are the following two reliefs set out below:
a. A declaration that the 2nd defendant is incapable of administering the estate of her late husband.
c. An order for the appointment of the Administrator-General to administer the estate of the late Professor Dr. Abban and distribute same to all those beneficiary entitled”.
We are of the considered opinion that the trial High Court Judge in determining the application for review considered all the reliefs being sought by the Plaintiff before dismissing same as unmeritorious.
All the other lapses being complained about the Plaintiff are from the ruling delivered on 31st May, 2017 which no appeal was lodged. We are of the opinion that the Plaintiff failed to point out the alleged lapses in the ruling delivered in the review application. We are satisfied that the Plaintiff failed to demonstrate an error committed by the trial High Court Judge in his ruling and we dismiss ground 1 of the appeal an unmeritorious.
The ground 2 of appeal is that the trial High Court Judge erred in law by wrongly exercising his discretion in favour of the Defendants/Respondents/Respondents. The Plaintiff’s submission is on the conditions upon which an application for Receiver/Manager may be determined and that belongs to the ruling on the appointment of Receiver/Manger and not the review application which is under attack by the Plaintiff.
We dismiss ground 2 of the appeal as unmeritorious.
The appeal fails in its entirety and same is dismissed.
JUSTICE OF APPEAL
KUSI-APPIAH,J.A I agree F. KUSI-APPIAH
JUSTICE OF APPEAL
HONYENUGA,J.A I also agree C.J. HONYENUGA
JUSTICE OF APPEAL