SARKODEE-ADDO vs. ATTORNEY-GENERAL [1992]DLCA5104

Date	1992-07-09
Suit No.	1992 – 1993] 4 G B R 1590 - 1593 C.A
Citation No.	[1992]DLCA5104

ESSIEM JA

BROBBEY JA

OMARI-SASU J

[1992]DLCA5104
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													<main id="main" class="content" style="min-height: 60rem" >SARKODEE-ADDO<o:p></o:p>vs.<o:p></o:p>ATTORNEY-GENERAL<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 – 1993] 4 G B R 1590 - 1593
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: 9 JULY 1992<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ESSIEM
JA, BROBBEY JA, OMARI-SASU J<o:p></o:p>

</div>ESSIEM JA. <o:p></o:p>In
this application, the applicant is asking this court to re-assess the damages
awarded by the court below in her favour. The reasons for the application were
set out in the supporting affidavit and I reproduce the following relevant
paragraphs:<o:p></o:p>“4. In paragraph 5 of my statement of
claim filed on 11 December 1969, I gave the price of the fishing vessel at that
time as ¢42,000.<o:p></o:p>5. The case was duly heard by His
Lordship Mr Justice Edusei, Justice of Appeal sitting as an additional High
Court judge.<o:p></o:p>6. Judgment was given in my favour on
11 May 1979 for ¢148,000 representing ¢56,000 for the lost boat and the net and
¢92,000 for loss of the use with ¢1,000 costs.<o:p></o:p>7. The Attorney-General filed a notice
of appeal on 27 July 1979 but has since not fulfilled the conditions of appeal
or prosecuted the said appeal since that date.<o:p></o:p>8. As a result of the delay in
prosecuting the appeal I have incurred tremendous loss in view of the fact that
the price of the fishing boat is now about ¢60 million.<o:p></o:p>9. I discovered much later that the
Attorney-General did not fulfil the conditions of appeal and that it was only
recently that the documentation in this case was sent to the Court of Appeal at
my expense.”<o:p></o:p>The
Attorney-General filed an affidavit in opposition thus:<o:p></o:p>“10. I am advised that the
plaintiff-respondent claim of delay cannot be upheld since he failed to use the
remedies provided by the rules in such situations.<o:p></o:p>11. I am advised and verily believe
that the application of the plaintiff-respondent has no merit as it is not
supported by any rule of procedure or precedent.”<o:p></o:p>Since
the applicant did not cross appeal, she has a right under LI 218 to ask that
the judgment of the court below be varied. Such a right is given by LI 218 rule
16(1) which provides that:<o:p></o:p>“16.(1) It shall not be necessary for
the respondent to give notice by way of cross-appeal; but if a respondent
intends upon the hearing of the appeal to contend that the decision of the
Court below should be varied, he shall within one month after service upon him
of the notice of appeal cause written notice of such intention to be given to
every party who may be affected by such contention. In such notice the
respondent shall clearly state the grounds on which he intends to rely and
within the same period shall file with the Registrar of the Court below four
copies of such notice, one of which shall be included in the record and the
other three copies provided for the use of the Judges.”<o:p></o:p>Unfortunately
this rule cannot avail the applicant since in reality she is seeking to vary
the judgment of the court below she should have given a written notice of her
intention to seek the variation to the respondent. However, rule 16(2) of LI
218 gives discretion to this court to entertain the application. That sub-rule
provides that:<o:p></o:p>“(2) Omission to give such notice
shall not diminish any powers of the Court, but may in the discretion of the
Court be a ground for postponement or adjournment of the appeal upon such terms
as to costs or otherwise as may be just.”<o:p></o:p>It
seems to me therefore that an applicant’s failure to comply with rule (1) can
be cured if the court in its discretion permits him to comply with the rule on
terms. This is what happened in this case. The arguments advanced in support of
the application mainly is that because of the delay in the hearing of the
appeal, the amount of damages awarded by the court below is now inadequate.
That the hearing of the appeal has been unduly delayed cannot be denied and the
delay can be blamed on the Attorney-General. The affidavit of the applicant
shows that it was the applicant who took steps to ensure that the appeal is
heard.<o:p></o:p>Under
rule 26 of LI 218, this court has discretion to allow fresh evidence. However
in this case the amount of damages awarded would have been adequate if the
appeal had been heard earlier.<o:p></o:p>Although
I would have liked to enhance the damages awarded by the court below because of
the current inflationary situation which has devalued the cedi, I find it
difficult to do so as I am satisfied that if the appeal had been heard earlier
the damages awarded would have been adequate.<o:p></o:p><o:p>&nbsp;</o:p>In
arguing this application, learned counsel for the applicant contended that at
the time the action was brought the cost of a boat, the subject matter in this
case, was ¢56,000 but today it is close to ¢60 million. He relied on LI 218
rule 31 for this application. That rule deals with the general powers of the
court and it is as follows:<o:p></o:p>“31. The Court may from time to time
make any order necessary for determining the real question in controversy in
the appeal, and may amend any defect or error in the record of appeal, and
direct the Court below to enquire into and certify its finding on any question
which the Court thinks fit to determine before final judgment in the appeal,
and may make any interim order or grant any injunction which the Court below is
authorised to make or grant, and may direct any necessary enquiries or accounts
to be made or taken and gen</main>