KISSI AND ANOTHER vs. NORTEY AND ANOTHER [1992]DLCA5043

Date	1992-01-30
Suit No.	[1992 – 93] 4 G B R 1444 – 1446 C. A
Citation No.	[1992]DLCA5043

AMUAH JA

OFORI-BOATENG JA

FORSTER JA

KYE FOR THE APPLICANT.

KORNOR FOR THE RESPONDENT.

[1992]DLCA5043
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													<main id="main" class="content" style="min-height: 60rem" >KISSI AND ANOTHER<o:p></o:p>vs.<o:p></o:p>NORTEY AND ANOTHER<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 93] 4 G B R 1444 – 1446 C.
A&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; DATE: 30 JANUARY 1992<o:p></o:p>

KORNOR
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 1.0pt 0in">

</div>AMUAH JA. <o:p></o:p>This
is an application by the plaintiffs-applicants for an order restoring the
appeal which was dismissed by the court on 10 December 1991 and for leave for
extension of time within which to fulfill the conditions of appeal. The grounds
upon which the application is based are set out in an accompanying affidavit.<o:p></o:p>Learned
counsel for the plaintiffs-appellants submitted that his clients were not
served with a hearing notice for the appeal. He contended that even though his
clients were not present at the settlement of the records in May 1991 they
would have fulfilled the conditions but for the loss of the docket which was
misplaced by late Mr Teiman. After his death, Mr Bentil, the Deputy Chief
Registrar, ordered a fresh docket to be opened and the registry accepted
payment of the sum of ¢5,000 and on the 8 November 1991, a cheque in the sum of
¢300,000 in lieu of the bond. He further contended that his clients have never
been given notice that the record of appeal has been forwarded to the Court of
Appeal.<o:p></o:p>In
reply, learned counsel for the defendants-respondents, Mr Kornor argued that
the application was brought under rule 19 (3) of LI 218 and rule 64 and that
the applicants had not shown good and sufficient cause for which the court's
discretion should be exercised in their favour. He further contended that the
failure on the part of the plaintiffs-applicants to fulfill the conditions of
appeal was willful. He submitted that although the record of appeal was settled
without the plaintiffs-applicants, they were aware of the date for the
settlement and that the conditions should have been complied with by 31 July
1991, after judgment had been obtained against the plaintiffs. The appellants
however filed a notice of appeal and applied to the High Court for stay of
execution. When they succeeded in obtaining the order they did not pursue the
matter again until the defendants-respondents applied to the court to have the
order of stay set aside. It was only after the service of the application on
the applicants herein that they wrote exhibit A on 4 November 1991. He
submitted that late Mr Teiman did his work efficiently and that there was no
letter from the registry to the effect that the docket got lost. The cheque, exhibit
B, which the plaintiffs-applicants paid to the registry on 23 December 1991,
was “a belated attempt to throw dust into the eyes of the court.” He concluded
by saying that there is an implied covenant in the head lease not to assign or
sublet and the plaintiffs-applicants are avoiding it.<o:p></o:p>On
our part we have heard arguments from both sides. We have the certificate of
late Mr. Teiman on record to show that the conditions of appeal were not
fulfilled at the time this court dismissed the appeal for non-fulfillment of
the conditions. We believe the court record rather than the depositions made by
the applicants in their affidavit. We are satisfied that if the respondents had
not come to court asking for an order to set aside the order for stay of
execution, the applicants would have continued to sit with their hands in their
laps.<o:p></o:p>As
regards the complaint by the applicants that the hearing notice for the appeal
was not served on them, it was their responsibility to go to the notice board
and find out when the appeal was scheduled for hearing. No hearing notice is
served in the circumstance.<o:p></o:p>Finally,
we are of the opinion that the applicants willfully refused to fulfill the
conditions of appeal and that they have not shown good reason why the court
should exercise its discretion in their favour.<o:p></o:p><o:p>&nbsp;</o:p>The
application will be dismissed.<o:p></o:p><o:p>&nbsp;</o:p>OFORI-BOATENG JA.
(sgd)<o:p></o:p><o:p>&nbsp;</o:p>FORSTER JA.
(sgd)<o:p></o:p>

<o:p>&nbsp;</o:p></main>