DARKWA AND OTHERS vs. KWABI IV [1992]DLSC4230

Date	1992-07-29
Suit No.
Citation No.	[1992]DLSC4230

ARCHER CJ

WUAKU JSC

AIKINS JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

AGYEMAN FOR THE APPLICANTS.

ADUSEI FOR THE RESPONDENT.

[1992]DLSC4230
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													<main id="main" class="content" style="min-height: 60rem" >DARKWA AND OTHERS<o:p></o:p>vs.<o:p></o:p>KWABI IV<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1993 - 4] 1 GBR 348 - 351 SC&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; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 29 JULY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AGYEMAN
FOR THE APPLICANTS.<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">

ADUSEI
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>WUAKU
JSC. This is an application by the plaintiffs-appellants-applicants praying
that the court relist the appeal struck out for hearing on its merits and, or,
grant extension of time within which to file appellants’ statement of case. I
am told that it was decided yesterday by the Supreme Court consisting of seven
judges in the case of Essilfie v Anfo IV dated 28 July 1992, SC that this court
has jurisdiction to relist appeals deemed to have been struck out under CI 13
rule 13(2).<o:p></o:p>The
undisputed facts of this case, as I can deduce from the affidavit in support
and in opposition, are these:<o:p></o:p>(a)
Form 5, the notice of transmission of records to Supreme Court, was served on
the applicants’ solicitors on 19/12/90.<o:p></o:p>(b)
Pursuant to that notice the applicants filed their statement of case on
24/1/91.<o:p></o:p>(c)
On a date not stated the applicants learnt that their appeal was, on 16/8/91,
struck out for non-compliance with rule 13(1) of CI 13.<o:p></o:p>(d)
The applicants had confirmation of the striking out when the 1st applicant
visited the High Court at Kumasi on 7/10/91.<o:p></o:p>The
applicants instead of filing their statement of case within 21 days from
19/12/90 did not do so but filed it 36 days later, i.e. 15 days after the time
permitted under the rules. The applicants argued that they were late in filing
their statement of case because instead of service of Form 5 being effected on
each and everyone of them, it was served on their solicitors, a firm of solicitors.
They said the service was improper as it offended against rule 12(1) of CI 13.<o:p></o:p>An
appeal is brought to this court by notice of appeal in conformity with rule 6
of CI 13 in the Form 1 as set out in the First Schedule to rule 6. Form 1
consists of seven numbered paragraphs. The first paragraph deals with the
notice of appeal; paragraph 2 - the part of the decision complained of, and in
the 3rd paragraph the would-be appellant is requested to give the particulars
of misdirection or error in law (in the judgment). Paragraph 4 deals with the
grounds of appeal and paragraph 5, the reliefs sought from the Supreme Court.
By paragraph 6 the appellant is to furnish the address for service on himself
and that of his counsel. The last numbered paragraph which is 7, deals with the
persons directly affected by the appeal, their names and addresses are to be
given.<o:p></o:p>When
the form is thus completed, it is dated and signed by the appellant (for
appellants). Rule 70 of CI 13, the interpretation rule, provides as follows:<o:p></o:p>“In these Rules, unless the context
otherwise requires: “appellant” includes the party appealing from a judgment,
order or decree and his Counsel.”<o:p></o:p>The
applicants’ notice of appeal consists of 5 paragraphs. Paragraphs 3 and 6 as
provided by Form 1 Schedule 1 to section 6 are omitted. Thus the address for
service on the appellants and the name and address for service on their counsel
were omitted. The name and address for the respondent were provided. A firm of
solicitors signed the notice of appeal with their rubber stamp over the said
signature. This confirms the respondent’s allegation in paragraph 8 of the
affidavit sworn to in opposition. Under the circumstances the Form 5 could only
be served on the solicitors who had signed the notice of appeal, and also on
the respondent. Such service, in my opinion is as good as service on each of
the appellants-applicants personally. The applicants cannot complain that they
were not properly served. The applicants cannot complain that the respondent
was not served early enough, because, in my view, 21 days having elapsed
without the statement having been filed, the appeal was deemed by operation of
law to have been struck out. The respondent in my view would be right to ignore
such a statement if served on him.<o:p></o:p>The
applicants became aware of the striking out of the appeal between 16/8/1991 and
7/10/1991, the day when they had confirmation from the High Court Kumasi that
the appeal was struck out. Fifteen months after the appeal was deemed to have
been struck out and between 6 and 7 months after the appellants became aware of
the striking out, the application herein was filed on 30/3/92. In my opinion
the delay was too long. The rules must prima facie be obeyed otherwise, as it
was held by the Privy Council in Ratnam v Cumarasamy [1965] 1 WLR 8, PC, a
party<o:p></o:p>would
have unqualified right to an extension which would defeat the purpose of the
rules which was to provide a time-table for litigation. See also the case of
Revici v Prentice Hall Incorporated [1969] 1 WLR 157, CA. For the several
reasons given above I would dismiss the application. The application is without
merit and is therefore dismissed.<o:p></o:p><o:p>&nbsp;</o:p>ARCHER
CJ. I agree.<o:p></o:p>AIKINS
JSC. I agree<o:p></o:p>BAMFORD-ADDO
JSC. I agree.<o:p></o:p>HAYFRON-BENJAMIN
JSC. I also agree.<o:p></o:p>