IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
GENERAL LEGAL COUNSEL - (Plainiff/Appellant)
JAMES ABIADUKA - (Defendant/Respondent)
DATE: 17TH JANUARY, 2017
SUIT NO: 2017
JUDGES: LOVELACE-JOHNSON JA
KIZITO BEYUO FOR THE APPELLANT
KWEKU PAINTSIL FOR THE RESPONDENT
The respondent on 6/12/2016 filed an application in the form of a motion to dismiss an appeal filed by the appellant as incompetent.
Counsel for the appellant raises a preliminary legal objection to the above on the, grounds that:
(1) This court lacks jurisdiction to hear the said application because it has been filed prematurely.
(2) Neither the motion paper nor the supporting affidavit disclose the basis of the “legal point” raised.
I will consider the second ground first. In his response to this, counsel for the respondent states in paragraphs 3&4 of the affidavit in support provide the necessary facts upon which the present application is based.
In dealing with the preliminary legal objection raised, the court will not consider as enjoined by the authorities- the contents of the affidavit in support. The contents of the said affidavit will be considered if the court finds it proper to hear and determine the motion on its merits after giving a ruling on the present preliminary legal objection. In expatiating on the first ground for the above objection, counsel for the appellant contends as follows:
Except in a few limited cases arises, this court is be rest of jurisdiction till the dispatch of the appeal record(form 6).
Upon the dispatch of form 6, it is rule 16 which regulates the kind of application the respondent has brought so inspite of the failure to so state and the way it is couched the respondent application can only be regulated by rule 16 of the court of appeal rules c. i. 19.
Form 6, not having been dispatched the present appeal cannot be said to be ready for hearing so the present motion, (which only have been brought under rule 16) is premature.
THE RESPONSE OF COUNSEL FOR THE RESPONDENT IS INTERESTING:
He states that the argument that it is only by a notice or prelim objection sited pursuant to rule 16 that a party can bring an application to strike out an appeal is untenable.
He does not state upon which rule in the court of appeal rules or state elsewhere his application is funded.
Although his argument that there are two sets of rules regulating the process of an appeal – the first regulating the convenient of an appeal and the second regulating an appeal which has been commenced up to the hearing and after counsel states that it is set that rule 16 belongs and this to the latter. Clearly states that its limited to the hearing of the appeal and not to any other legal objection.
At the end of his arguments, counsel had not been able to provide the cause with which of the first set of the rules governs his application. The application in question has not been brought in the format prescribed in civil form 8 as required by rule 16. Admittedly it has also been brought before the dispatch of form 6, i am unwilling to say with counsel for the appellant that (in the absence of a clear indication by counsel for the respondent as to which rule regulates his application) it is rule 16 which must apply. What i am able to say with him is that in the light of the fact that form 6 has not been dispatched this court’s jurisdiction has not been properly used. It therefore lacks jurisdiction to determine an application such as the one in question which calls for the exercise of the said jurisdiction. The prelim objection is upheld for this reason. The application in question is struck out.