POMAA AND OTHERS vs. FOSUHENE [1987]DLSC799

Date	1987-06-17
Suit No.
Citation No.	[1987]DLSC799

ADADE JSC

TAYLOR JSC

FRANCOIS J.S.C.

OSEI-HWERE JA

AMUA-SEKYI J.A.

TOTOE FOR THE APPELLANTS.

OBENG-MANU FOR THE RESPONDENT.

[1987]DLSC799
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													<main id="main" class="content" style="min-height: 60rem" >POMAA AND OTHERS <o:p></o:p>vs. <o:p></o:p>FOSUHENE <o:p></o:p>[SUPREME COURT ACCRA]<o:p></o:p>[1987-88] 1 GLR 244<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
17 JUNE 1987<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">

TOTOE FOR THE APPELLANTS. <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">

ADADE, TAYLOR, FRANCOIS JJ.S.C.,
OSEI-HWERE AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE J.S.C.<o:p></o:p>This is
an appeal from the National House of Chiefs. Two objections have been raised in
limine against its hearing. These are that:<o:p></o:p>(a) The
decision of the National House of Chiefs was interlocutory. An appeal against
it should have been filed in fourteen days. The present appeal was filed out of
time, and<o:p></o:p>(b) The
defendants-appellants failed to comply with rule 13 (1) of the Supreme Court
Rules, 1970 (C.I. 13), which obliges them to file their statement of case
within three weeks of being served with the Civil Form 5—notice of dispatch of
record. Their appeal has, therefore, been deemed to be struck out: there is no
appeal before this court.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment of the National House of Chiefs was given on 27 September 1985.
Reasons for the judgment were read on 14 November 1985. My reference to the
judgment of 27 September 1985 must be taken to include the reasons therefor.<o:p></o:p>As
regards the status of the judgment of 27 September 1985 the
plaintiff-respondent (hereinafter referred to as the respondent) says it was
interlocutory, and an appeal against it ought to have been brought within
fourteen days. The appellant on the other hand says the judgment was a final
decision not an interlocutory one.<o:p></o:p><o:p>&nbsp;</o:p>In a
number of situations it is all too easy to tell whether a decision is
interlocutory or not, particularly when the decision comes in the course of a
suit in connection with applications for directions, for interim orders
(injunction, preservation of property, etc.) and for taking evidence or
producing documents, and so on. But in a large number of cases, it has never
been that easy to say whether a decision is interlocutory or not.<o:p></o:p>Some
criteria have been propounded to help in this:<o:p></o:p>(a) That
orders which decide the rights of the parties are final; those which do not are
interlocutory; and<o:p></o:p>(b) If
the application which resulted in the order is interlocutory then the resultant
decision must be interlocutory, similar to the Ashanti proverb that a crab
cannot give birth to a bird.<o:p></o:p>But we
have known orders dubbed as final even though they arose out of applications
which were interlocutory in form. In Salaman v. Warner [1891] 1 Q.B. 734 at
735, C.A., however, it was decided that a decision is final only if “whichever
way it is given ... finally dispose[s] of the matter in dispute ...”<o:p></o:p><o:p>&nbsp;</o:p>The
problem however has been in the application of the several criteria. An order
for costs does not dispose of any rights between parties, and would seem to be
interlocutory. Apaloo J.A. (as he then was) in Atta Kwadwo v. Badu [1977] 1
G.L.R. 1, C.A started off in the belief that such an order was interlocutory;
he ended up holding that it was final.<o:p></o:p>In that
same case, a notice of discontinuance having been filed, the lower court made
an order, as stated at 3 as follows: “Case struck out for lack of prosecution
as per letter of discontinuance with full costs of ¢300 ... wit</main>