IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
MADAM ADWOA SERWAAH - (Plaintiff/Respondent)
KWADWO BAAFI AND 2 OTHERS - (Defendants/Appellants)
DATE: 16TH FEBRUARY, 2017
CIVIL APPEAL NO: H1/03/2017
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS.) J.A
DOMAKYAAREH (MRS), J. A.
1. This appeal arose from litigation among members of the same family concerning the management of their family property. The plaintiff/respondent herein sued the defendants/appellants in her capacity as the eldest female member of their maternal family on her own behalf and on behalf of the maternal members of her said family. The 1st defendant/appellant is their Head of Family and the 2nd and 3rd defendants/appellants are biological sons of the plaintiff/respondent who have been appointed by the 1st defendant/appellant as caretakers of his stewardships of the family property due to his old age and ill-health.
2. The plaintiff/respondent claimed the following reliefs at the trial court, namely:-
“a) A declaration that the under listed properties belong to the plaintiffs immediate maternal family, namely;
(i) All that story building house on plot number M/S BLK 4, Kumawu, Ashanti
(ii) All that parcel of cocoa farms situate, being and lying at a place commonly known and called “Twabidi” on Tepa Stool land and “Bepokoko” on Kumawu stool land
b) An order compelling the 1st defendant as head of the family and customary successor to account for his stewardship in respect of the properties mentioned in relief “a” above.
c) An order compelling the defendants to hand over the properties mentioned in relief “a” above to the plaintiff on account of the defendants mismanagement and dissipating of same to the detriment of the members of the family.
d) Perpetual injunction restraining the defendants, his agents, assigns having any way interfering with the properties mentioned in relief “a” above.”
3. The central facts around which the dispute arose are not in dispute. These are that the properties claimed in the reliefs are family property and that the 1st defendant/appellant is the customary successor and Head of family of the Parties.
4. The gist of the evidence of the plaintiff/respondent and her witness is that, the 1st defendant/appellant is resident at Dormaa Ahenkro and has informed the family that owing ill-health he can no longer come to Kumawu where the properties are and that the 2nd and 3rd defendants/appellants had connived with the 1st defendant/appellant by reason of his ill-health and have been exclusively enjoying the proceeds of the properties without recourse to the family members.
The plaintiff/appellant averred that as the eldest female member of the four surviving children of her mother, which includes the 1st defendant/appellant, if for any reason the 1st defendant/appellant is unable to act effectively as successor and care taker of the family properties, she the plaintiff/respondent is the rightful person to be appointed as successor and caretaker.
5. The defendants/appellants denied the claims of the plaintiff/respondent and averred per their Statement of Defence that the 1st defendant/appellant has been supporting some named family members and has also been carrying out maintenance works on the properties. The 2nd and 3rd defendants/appellants admitted that the 1st defendant/appellant appointed them as caretakers in the presence of some family members and contended that the general behavior of the plaintiff/respondent is not conducive to peace in the family and that of the tenants and for that matter she is not entitled to the reliefs claimed.
The defendants/appellants counterclaimed for:
1. Recovery of possession of House No. M/S BLK4, Kumawu
2. An order compelling the plaintiff to quit from the said house on the basis of the last will of the late Opanin Kofi Fofie in paragraph 6(e)
6. The 2nd defendant/appellant testified for himself and the 1st defendant/appellant. His testimony was that the 1st defendant/appellant is indisposed and week and resident at Dormaa Ahenkro in the Brong Ahafo Region. He therefore appointed him the 2nd defendant/appellant to act on his behalf. He said the appointment was made with Abena Duku, plaintiff’s sister, Esther Aboagye, plaintiff’s daughter, and Kwadwo Owusu, plaintiff’s brother. He said the plaintiff disagreed with his appointment as caretaker and hence she mounted the action contending that she is the Obaapanin of the family and that she is the proper person to be appointed to oversee the ancestral properties. The 3rd defendant/appellant gave evidence as a hostile witness in that he admitted to the claim of the plaintiff that in the absence of the 1st defendant the plaintiff is the proper person to take custody of the ancestral properties.
7. DW1 a brother (1st cousin) of the 1st defendant/appellant also testified to the effect that the plaintiff/respondent mounted the action because she disagreed with the appointment of the 2nd defendant/appellant as caretaker by the 1st defendant/appellant and that he tried to have the parties resolve the matter amicably. Obviously, the settlement did not succeed as the case continued to conclusion in the trial court.
At the close of the hearing of the case, the trial judge gave judgment for the plaintiff/respondent and dismissed the counterclaim of the defendants/appellants.
8. Aggrieved by the said judgment and dissatisfied with same, the defendants/appellants mounted the instance appeal on the sole ground that the judgment is against the weight of the evidence. The Notice of Appeal filed on 7th July 2015 indicated that further grounds would be filed upon receipt of the Record of Appeal but no such further or additional grounds have been filed.
9. Counsel for the plaintiff/respondent raised a preliminary legal objection to the appeal which we are duty bound to consider first before evaluating the grounds of appeal if necessary. His legal objection is that the appeal has been filed out of time and therefore there is no appeal before this court to consider at all.
10. Rule 9(1)(b) and 9(2) of The Court of Appeal Rules, 1997 C.I 19 direct that an appeal in respect of a final judgment must be brought before the court within three (3) months of the date on which the judgment is given. These Rules are set out in extenso below:
“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-
(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.”
Thus where an appeal is brought outside this statutory limit of three months, then in the absence of express leave or extension of time within which to file the appeal, the appeal itself together with its notice of appeal is incompetent as being null and void and the appellate court has no jurisdiction to hear the matter.
11. A Certified True Copy of the judgment that is being appealed against shows that the judgment was delivered on 1st April, 2015. The judgment was entered at Kumawu on 7th April, 2015. The Entry of Judgment can be found at page 39 of the Record of Appeal.
Since the judgment was delivered on 1st April 2015, the Notice of Appeal should have been filed as of right latest by 1st July 2015 or with leave if filed after the said date. The Notice of Appeal in the instant case which can be found at page 38 of the Record of Appeal, was filed on 7th July 2015 and therefore clearly out of time. There is also no process in the Record of Appeal to indicate that an application was made for extension of time within which to appeal and that any subsequent leave was granted to do so.
It is normally not the norm to exhibit documents to Written Submissions but in this instance the Certified True Copy of the judgment was exhibited by Counsel for the plaintiff/respondent for good purpose to prevent the thwarting of the course of justice since it indicated clearly that the judgment was delivered on 1st April 2015.
At pages 33 – 37 of the Record of Appeal is the same copy of the judgment being appealed against. Even a cursory look at the heading of the judgment reveals a deliberate alteration in ink in handwriting of the judgment date from 1st April 2015 to 15th April 2015. In other words, the “ST” following 1 to indicate 1ST has been erased and the number “5TH” inserted in its place in hand writing. Nobody has initialed against such an alteration. This is criminal conduct to say the least. By the altered date of 15th April 2015 a Notice of appeal filed on 7th July 2015 would thus be within time. In any event a judgment cannot be entered on 7th April 2015 for a judgment that is delivered more than a week later on 15th April 2015. Evidence on the face of the record clearly shows that the appeal has been filed out of time and is therefore incompetent.
12. The effects of filing appeals out of time and without leave have been pronounced upon by the courts in several decided cases.
In DOKU V PRESBYTERIAN CHURCH OF GHANA [2005-2006] SCGLR 700 the appellant filed his notice of appeal almost 9 months after the time limited for appeals had elapsed. There was nothing on record showing that time had been extended either by the trial court or the Court of Appeal. The Court of Appeal heard the appeal, and on further appeal to the Supreme Court the decision of the Court of Appeal was overturned. Per Sophia Akuffo JSC, the court said it was not for nothing that rules of court procedure stipulated time limits. The Supreme Court emphasized that time limits were too important to be ignored even if the court had discretion in the matter and concluded that no principle of equity permitted the court to ignore fundamental limitations spelt out in Rule 8 (1), (4) of C.I. 16 since the court had no such power. Rule 8(1) and (4) of C. I. 16 are in pari materia with Rule 9 (1) and (4) of C. I. 19
Again, in DARKE IX V DARKE IV [1984-86] 1 GLR 481 the applicant for review brought his application two days later than the time allowed. By a majority of 2-1, the Court of Appeal purported to cure the defect under rule 66 of C.I 13. In reversing the decision of the Court of Appeal, the Supreme Court held that, applications for leave to apply for review under S. 3(2)(a) of NRCD 101 were governed by rule 7 of C.I. 13 and the time limit was within 14 days from the day of the decision. The plaintiff’s application of 15 August 1979 filed in relation to the judgment of 30 July 1979 was out of time and thus incompetent and the Court of Appeal had no jurisdiction to entertain it.
A similar view was expressed by the Supreme Court speaking through Gbadegbe JSC in CAPTAIN ROBERT MBA TINDANA v. THE CHIEF OF DEFENCE STAFF & 2 ORS  2 SCGLR 732: The Court said the appeal which was filed long after the three months period provided under Rule 9 of the Court of Appeal Rules was plainly incompetent resulting in the absence of jurisdiction in the Court of Appeal to determine it. Consequently, the entire proceedings acquired the attribute of nullity and same were set aside. The result was that court did not have before it any appeal to be considered on the merits. The Court went on to emphasize that It is to be observed that in such cases the court's decision is based essentially on the requirements of due process that all parties who desire to appeal in cases that have been tried must comply with the conditions under which the right of appeal has been conferred on them.
In short, the effects filing an appeal out of time are threefold:
1. The defect is incurable
2. It oust the court’s jurisdiction
3. It invalidates anything done by the court.
13. As the appeal has been found to be incompetent there is therefore no need to go into the merits of the appeal by evaluating the sole ground of appeal which is the omnibus ground that the judgment is against the weight of the evidence.
The appeal is accordingly struck out as incompetent for failure to comply with Rules 9(1)(b) and 9(2) of C.I.19.
Angelina M. Domakyaareh (Mrs)
(JUSTICE OF APPEAL)
E. K. Ayebi JA I agree E. K. Ayebi
(JUSTICE OF APPEAL)
Torkornoo (Mrs), JA I agree G. Torkornoo (Mrs)
(JUSTICE OF APPEAL)