CFAO vs. ZACCA [1972]DLSC2211

Date	1972-01-17
Suit No.
Citation No.	[1972]DLSC2211

AZU CRABBE J.S.C

LASSEY JA

SOWAH J.A.

J. B. QUASHIE-IDUN FOR THE APPLICANTS.

H.V.A. FRANKLIN FOR THE RESPONDENT.

[1972]DLSC2211
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >CFAO<o:p></o:p>&nbsp;vs. <o:p></o:p>ZACCA <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&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;&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;[1972] 1 GLR 366<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 JANUARY 1972.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. B. QUASHIE-IDUN FOR THE APPLICANTS.<o:p></o:p>

H.V.A. FRANKLIN FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AZU CRABBE J.S.C., LASSEY AND SOWAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.S.C.<o:p></o:p>The
present application raises points of great importance. The history of this
matter may be shortly stated. The applicants brought an action in the High
Court, Kumasi, against one S. Zacca, claiming payment of sums of money due and
payable under a hire-purchase agreement between the applicants and Zacca for
the purchase of a tractor. The applicants had, in the meantime, seized the
tractor for default in the payment of the instalments under the hire-purchase
agreement. Zacca disputed liability on the ground that to the knowledge of the
applicants he was only a nominal party to the hire-purchase agreement, and that
the real party was one B. M. Zacca, the respondent herein, who joined the suit
as a third Party. B. M. Zacca did not dispute liability under the hire purchase
agreement, but he counterclaimed for damages for unlawful seizure of the
tractor by the applicants. The leaned trial judge dismissed the applicants’
claim but awarded B. M. Zacca damages.<o:p></o:p><o:p>&nbsp;</o:p>The
applicants appealed to the former Court of Appeal against the decision
concerning (i) the existence and breach of an agreement varying the original
one and (ii) the damages, as being excessive and wrong in law. The respondent
also appealed (i) against a finding by the learned trial judge that he was under
a duty to mitigate his damage and (ii) that the damages awarded were
inadequate. On 15 August 1969 the Court of Appeal dismissed the applicants’
appeal, but allowed the respondent’s appeal on the issue of damages. The
damages awarded were varied to read N¢49,600 instead of N¢24,000 (£12,000). On
22 August 1969, that is to say exactly one week after the dismissal of the
applicants’ appeal, a new Court of Appeal came into being by virtue of article
102 (4) of the Constitution of the Republic of Ghana, 1969. Subsequently, the
applicants paid to the respondent the sum of N¢30.000.00 in partial
satisfaction of the damages awarded in the appeal. The applicants then applied
to this new court, under rule 33 of the Supreme Court Rules, 1962 (L.I. 218.),
for a review of the judgment delivered on 15 August 1969. Rule 33 provides
that, “The Court shall not review any judgment once given and delivered by it
save where it is satisfied that the circumstances of the case are exceptional
and that in the interest of justice there should be a review.” This application
was on 20 June 1970 refused with costs, and the applicants, having failed to
prevent the respondent from levying execution for the balance of the judgment
debt, duly paid to the respondent the balance of the judgment debt, together
with the costs awarded.<o:p></o:p>On 21
August 1971 the present notice of motion was filed in this court, seeking an
order extending the time within which to appeal to the Supreme Court from the
judgment dated 15 August 1969. The principal ground of the application, as
alleged in the accompanying affidavit, is that “the appeal will involve
important principles of law upon which the pronouncement of the Supreme Court
will be of some importance and in the interest of justice.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the applicants states that the application has been brought under rule 8
(4) of the Supreme Court Rules, 1970 (C.I. 13), which provides that, “An
application for the extension of time within which to lodge an appeal in
respect of a final decision shall not be made after the expiration of three
months from the expiration of the period prescribed by this rule within which
an appeal may be lodged.” Sub-rule (6) of rule 8 also provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Subject
to the provision of sub-rule (4) of this rule where a person has applied to the
Court below for an extension of time within which to lodge a civil appeal and a
period of not less than one month has expired since the time when the said
application was made without the Court below having granted or refused the
application, the applicant shall be entitled to move the Court to have the
application determined by the Court.”<o:p></o:p><o:p>&nbsp;</o:p>