GYINAYE vs. FRIMPONG [1971]DLHC10257

Date	1971-10-18
Suit No.	1 G L R 51 - 53
Citation No.	[1971]DLHC10257

MENSA BOISON J.

HAYFRON BENJAMIN FOR THE APPLICANT.

AYIM OWUSU FOR THE RESPONDENT.

[1971]DLHC10257
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													<main id="main" class="content" style="min-height: 60rem" >GYINAYE<o:p></o:p>vs.<o:p></o:p>FRIMPONG<o:p></o:p>[HIGH
COURT, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">1 G
L R 51 - 53&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:&nbsp; 18TH OCTOBER, 1971<o:p></o:p>

</div>COUNSEL:<o:p></o:p>HAYFRON BENJAMIN FOR THE APPLICANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

AYIM OWUSU FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;MENSA
BOISON J.<o:p></o:p>&nbsp;In an action at the High Court to determine
who was entitled to a grant of letters of administration to the estate of Kofi
Afreh, deceased, the caveator, one Yaw Gyamfi since deceased (to be referred to
hereafter as the original caveator), lost to the respondent herein.&nbsp; Yaw Gyamfi gave notice of appeal and duly
fulfilled the conditions imposed before his death.&nbsp; But before the appeal could be heard he died
and one Nana Kwame Akoto (to be referred to as the appellant) was by consent
and authority of the family nominated to prosecute the appeal.&nbsp; Accordingly he appeared to have subsequently
applied to be and was substituted for the original caveator as appellant.&nbsp; For reasons not manifest on the present
documents, the appellant gave notice of discontinuance of the appeal.<o:p></o:p>&nbsp;The instant application comes from one Kwaku
Frimpong (to be referred to as applicant) for an order of this court that he be
substituted for the appellant to prosecute the appeal.&nbsp; Leaving aside the merits of the application
for a moment, the applicant contends that this court is the proper forum for
the determination of this application inasmuch as the docket on the case had
not been sent to the Court of Appeal to have the appeal struck out.&nbsp; In the alternative counsel would appear to
contend that the notice of discontinuance, having been filed at the High Court,
was not operative.&nbsp; This rests on rule 18
of the Supreme Court Rules, 1962 (L.I. 218). [His lordship then read the
material part of the rule which is set out in the headnote and continued:]&nbsp; Clearly the “Registrar” here refers to the
registrar of the Court of Appeal and the respondent’s counsel [p.53] conceded
the fact that the notice of discontinuance was not filed with the registrar of
the Court of Appeal as he sought refuge in what apparently seems like a saving
provided by rule 21 of the Supreme Court Rules, [His lordship then read rule 21
which is set out in the headnote and continued:]<o:p></o:p>&nbsp;In my opinion the filing of a notice of
withdrawal of an appeal is not within the meaning of the word application as
used in rule 21.&nbsp; The word application is
defined in Jowitt’s Dictionary of English Law (1st ed.) at p. 134 to mean
"a request, a motion to a Court or Judge, the disposal of a thing."
That I think connotes a situation where the applicant may be granted or be
refused his request.&nbsp; On the other hand
the filing of a notice of withdrawal under rule 18 does not give the Court of
Appeal any option but to act on the information contained in the notice and to
dismiss the appeal.&nbsp; In my opinion
therefore the notice of discontinuance filed herein at the High Court was not
operative.&nbsp; But that only means that the
appeal is still pending and if in fact it is before the Court of Appeal then
this court has no jurisdiction to entertain any application by virtue of rule
21.<o:p></o:p>&nbsp;Although counsel for the applicant urged that
the appeal docket was still in the court, he did not seek to substantiate it in
any way.&nbsp; All I have before me is a
temporary docket with an inscription "original docket on appeal."
That is a fair inference that the appeal docket has been forwarded to the Court
of Appeal.&nbsp; Indeed before this ruling was
delivered the case appeared in the appeal list of the Court of Appeal as No.
163/71 in Ghana Gazette No. 77 of 24 September 1971.&nbsp; In the title, Nana Kwame Akoto is substituted
for Yaw Gyamfi as the plaintiff-appellant.&nbsp;
That presupposes that the appeal docket had in fact been sent to the
Court of Appeal, and in all probability before the notice of withdrawal.&nbsp; That Gazette notification is prima facie legal
notice to all that the appeal is entered and I am of the opinion that by virtue
of rule 21 of L.I. 218 it would be outside my jurisdiction here to entertain an
application in respect of the appeal.&nbsp;
With that stand I do not propose to go into the merits of the
application, as to whether the applicant has any authority to apply to be
substituted or whether his grounds are tenable.<o:p></o:p>&nbsp;There will be no order as to costs.<o:p></o:p>&nbsp;DECISION<o:p></o:p>&nbsp;Application refused.<o:p></o:p>&nbsp;&nbsp;&nbsp;

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