REPUBLIC vs. HIGH COURT, KUMASI; EX PARTE KHOURY [1991]DLSC2307

Date	1991-07-22
Suit No.
Citation No.	[1991]DLSC2307

ADADE JSC

FRANCOIS JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

EDWARD WIREDU JJ.S.C.

NANA AKUFO-ADDO (WITH HIM OWUSU (MISS)) FOR THE PLAINTIFF-APPLICANT.

DR. ANANE FOR THE DEFENDANT-RESPONDENT.

[1991]DLSC2307
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH
COURT, KUMASI; EX PARTE KHOURY<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p>[1991] 2
GLR 393<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>NANA
AKUFO-ADDO (WITH HIM OWUSU (MISS)) FOR THE PLAINTIFF-APPLICANT.<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">

DR. ANANE
FOR THE DEFENDANT-RESPONDENT. <o:p></o:p>

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

</div>JUDGMENT
OF ADADE J.S.C.<o:p></o:p>This
application is as interesting as it is peculiar. In substance the
plaintiff-applicant is asking this court, in an application for certiorari, to
bring up and quash a notice of appeal filed by the defendant-respondent. The
said appeal is to the Court of Appeal, from a ruling of the High Court. The
notice of appeal (good or bad) is now pending in the Court of Appeal, and the
applicant says that we should order this notice to be brought up and quashed.
In his own words, the applicant wants:<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">“ . . .
an order declaring and setting aside as null and void the purported notice of
appeal to the Court of Appeal filed by A. O. Lawson [the defendant] on 12
September 1990 in the registry of the High Court, Kumasi in the case entitled
Khoury v. Lawson (Misc 96/90).”<o:p></o:p>I find
this a very peculiar application.<o:p></o:p>Giving
the grounds for his application, the plaintiff says that the ruling sought to
be appealed against was given on 28 August 1990; that it being interlocutory,
the defendant had fourteen days to file his appeal; but the defendant filed the
notice of appeal one day late, i.e. 12 September 1990; the appeal was therefore
incompetent. Accordingly, he comes by certiorari to ask us to bring up the
notice and quash it.<o:p></o:p>Granting,
for purposes of argument, that the notice was out of time, one may well ask:
“Is certiorari the remedy open to the plaintiffs?” I should have thought that
the remedy lies in some proceeding in the Court of Appeal itself, either prior
to or at the hearing of the appeal; not in an application for certiorari, in
this court. We must be careful lest we expose this remedy of certiorari to
unnecessary abuse. Next time round I can very well see a party to an appeal
asking this court, on certiorari, to bring up and quash an appeal which is
pending in the Court of Appeal on the ground that it has no basis in law,
instead of arguing his objections in the Court of Appeal for a ruling. We may
soon find ourselves taking over and hearing appeals pending in the Court of
Appeal and properly cognisable by that court. So that even if the notice of
appeal in the instant case was filed out of time, I would still be loathe to
entertain the application. I would dismiss it.<o:p></o:p>However,
during argument and having seen a transcript of the proceedings of the High
Court, counsel for the applicant conceded that although the ruling is dated 28
August 1990, it was in fact read in open court on 29 August 1990. Therefore the
notice of appeal far from being out of time, was indeed filed dead on the
fourteenth day. It was not out of time, and with that fact this ground of the
application completely collapses.<o:p></o:p>Instead,
however, of dealing with the application as put, it seems that some extraneous
material is being pressed into service to shore it up. I find this course
completely unjustified. It is said that the ruling of 29 August 1990 does not
stand alone; it is a culmination of certain previous rulings in the same case,
and that if those ruling and decisions are examined, it will be found that the
ruling of 29 August 1990 is correct. This carries the ominous implication that
the defendant should not have attempted to appeal at all. I find this line of
argument rather unimpressive.<o:p></o:p>It must
be appreciated that generally any decision or ruling of the High Court is
appealable to the Court of Appeal: some may be appealed as of right, others by
leave; but appealable nonetheless. Where an appeal lies by leave, the court to
which an application for leave is made may decide whether to grant leave or to
refuse it. Even so, the decision to grant or refuse leave is appealable. But
where the appeal lies as of right, I do not see how any one can stop a party
from appealing. If the respondent to the appeal has any objections, these are
best raised and argued in the appellate court. This court should not substitute
itself for the Court of Appeal and decide the objections.<o:p></o:p>The
extraneous matters which, in my view, are being unjustifiably allowed to colour
a decision in this application, arise from the fact that on 6 September 1989
the district court gave judgment for the plaintiff in a rent case. The
defendant’s appeal to the High Court was dismissed on 22 June 1990. Having lost
twice in a row, the defendant needed leave if he wished to appeal to the Court
of Appeal, the </main>