OTOO vs. DUA [1991]DLCA2285

Date	1991-07-03
Suit No.
Citation No.	[1991]DLCA2285

LAMPTEY JA

ESSIEM JA

KPEGAH JJ.A.

PETER ALA ADJETEY S.A.G. FOR THE APPELLANT.

AMEGATCHER FOR THE RESPONDENT.

[1991]DLCA2285
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													<main id="main" class="content" style="min-height: 60rem" >OTOO<o:p></o:p>vs.<o:p></o:p>DUA<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 247<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">

</div>COUNSEL:<o:p></o:p>PETER ALA
ADJETEY, S.A.G., FOR THE APPELLANT.<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">

AMEGATCHER
FOR THE RESPONDENT. <o:p></o:p>

LAMPTEY,
ESSIEM AND KPEGAH JJ.A. <o:p></o:p>

</div>JUDGMENT
OF LAMPTEY J.A.<o:p></o:p>Lamptey
J.A. delivered the judgment of himself and of Essiem J.A. After hearing an
interlocutory motion, Lutterodt J. read her ruling on 28 February 1990. On 12
April 1990, the trial judge delivered her “final order” in that interlocutory
application. She dismissed the action of the plaintiff. Aggrieved by the
“ruling” and the “final order”, the plaintiff filed a notice of appeal in the
following terms:<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">“Take
notice that the plaintiff-applicant herein being totally dissatisfied with the
ruling of Lutterodt J. delivered on 28 February 1990 and the order made
pursuant thereto on 12 April 1990 doth hereby appeal to the Court of Appeal.”<o:p></o:p>When the
appeal came before us, learned counsel for the defendant-respondent
(hereinafter referred to as the respondent) raised a preliminary objection based
on the grounds that: (1) the notice of appeal was incompetent in the form in
which it was couched; and (2) the appeal against the ruling of the 28 February
1990 was filed out of time and without leave of court. He submitted that the
appeal was not properly before this court and the same must be dismissed in
limine. Learned counsel for the plaintiff-appellant (hereinafter referred to as
the appellant) conceded that the second ground of objection was well-founded
and meritorious. On the first ground of objection he submitted that the notice
of appeal satisfied the rules of court. He contended that the procedure
followed by the trial judge in hearing and determining the application led to
the drafting and formulating of the notice of appeal in that form. He invited
this court to hold that the appeal was properly before it.<o:p></o:p>The
second ground of objection was presented to the court with no problem. Since
the ruling was an interlocutory one, the right of appeal must be exercised by
the aggrieved party within fourteen days. This was not done in the instant
case. The objection founded on the ground that the appeal was filed out of time
is unassailable and well founded and we so find. We strike out the part of the
notice of appeal which sought to complain against the ruling of 28 February
1990.<o:p></o:p>The other
ground of objection was that the notice of appeal contained two separate and
distinct matters, namely (1) the ruling dated 28 February 1990 and (2) the
orders made by the court on 12 April 1990. We are of the view that to
appreciate the force of the arguments made by counsel for the parties, a brief
statement of the facts of what transpired before the trial judge must be
stated. Before her, the respondent moved the court to dismiss the action of the
appellant pursuant to order 25, r. 1 of the High Court (Civil Procedure) Rules,
1954 (L.N. 140A). The trial judge concluded her ruling on 28 February 1990 as
follows:<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">“I think
the plaintiff must be given a chance to exploit all the rights and remedies
that exist under our High Court (Civil Procedure) Rules, 1954 (L.N. 140A). I
would thus adjourn to enable counsel decide what is best for his client in the
light of the order I have made. It would thus follow that I would make a final
order on the next adjourned date.”<o:p></o:p>Further
hearing of the application was therefore adjourned to 12 April 1990.<o:p></o:p>The
expectation of the trial judge was that learned counsel for the appellant would
seriously consider the advice offered by her and thereafter take such other
steps as the circumstances of the case dictated. When the case was called on 12
April 1990, learned counsel for the appellant addressed the court in part as
follows: “I think we would not pursue this case any further . . .” The trial
judge in the circumstances in which she found herself, concluded the
proceedings in the following language: “In the circumstances the final order
will now be that the plaintiff’s action is dismissed . . .”<o:p></o:p>The first
observation we must make is that on the face of the record the trial judge give
no reasons for dismissing the action of the plaintiff on 12 April 1990. She
merely referred to and appeared to have relied on “circumstances” which were
not stated by her in the court notes. We apprehend though that the trial judge
appeared to have adopted and relied on her earlier reasoned ruling which she
delivered on 28 February 1990. In my opinion, it is only when the order of 12
April 1990 is so considered that the expression “in the circumstances” used by
the </main>