S. K. APPAH vs. UNILEVER (GH.) LTD. [1999]DLCA6943

Date	1999-07-29
Suit No.	CIVIL APPEAL NO. 89/98
Citation No.	[1999]DLCA6943

FORSTER J. A. (PRESIDING)

ESSILFIE-BONDZIE J.A.

[1999]DLCA6943
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													<main id="main" class="content" style="min-height: 60rem" >S. K. APPAH<o:p></o:p>vs.<o:p></o:p>UNILEVER (GH.) LTD.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. 89/98&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 29TH JULY, 1999<o:p></o:p>

</div>CORAM: <o:p></o:p>FORSTER
J. A. (PRESIDING), ESSILFIE-BONDZIE J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>TWUMASI, J.A.:<o:p></o:p>This is an appeal against
the ruling delivered by the High Court, Tamale on the 31st March, 1998. The
facts show that on the 24th December, 1992 the respondents, Unilever (Ghana)
Limited instituted legal proceedings against the appellant, a business agent and
tenant to the respondents for the recovery of an amount ¢4,992,248.40 said to
be arrears of rent and value of goods supplied by the respondents under what
was described as a deedership Agreement between the parties. The appellant
counter claimed for reliefs comprising damages for breach of the said
agreement. At the close of pleadings, summons for directions was duly taken and
a date was fixed for the hearing of the suit. <o:p></o:p>On the due date the case
was further adjourned at the instance of the respondents. Several adjournments
were subsequently made because of the persistent absence of counsel for the
respondents. <o:p></o:p>The record shows that on
the numerous occasions that the court yielded to adjournments, service of
hearing notices had been effected either on the solicitors of the respondents
or their representative at Tamale, to be precise, the Manager of Unilever
(Ghana) Limited in that regional capital. Matters came to a head when the court
apparently having exhausted all its indulgence in the conduct of the
respondents, dismissed their claim on the 17th April 1996 leaving the
counter-claim for hearing on the 23 May, 1996. An order was made that the
Registrar caused a hearing notice to be served on the respondents. On the due
date both counsel for the parties were absent and the case was adjourned sine
die. The case was relisted for hearing on the 29th April, 1997. Notices were
ordered to be served on the parties and their counsel to appear on the 26th
May, 1997.<o:p></o:p>&nbsp;Counsel for the respondents then filed a motion
for relistment of the case but never pursued it. Amidst this bizarre state of
affairs afflicting the fate of the lawsuit, Counsel for the respondents wrote a
letter dated 9th May, 1997 to the Deputy Registrar of the court copied to their
Tamale representative informing them that he had withdrawn his services as from
that date. This prompted the respondents’ representative by a letter dated 20th
May 1997 to apply to the court for an adjournment while he arranged for the
services of a new Counsel.<o:p></o:p>&nbsp;The court obliged and adjourned the hearing to
the 18th June, 1997. The respondents had been served on 2nd June with the
hearing notice but on the due date they failed to attend court and no new
Counsel appeared on their behalf. The record further shows that the court
adjourned the hearing to the following day, as the court put it, “for the court
to satisfy itself about the plaintiff’s (respondents’) absence”. On the
following day the court commenced the hearing of the counter-claim.<o:p></o:p>&nbsp;One interesting fact on record was that at the
time the court heard the counter-claim the motion for relistment was pending
before the court, but the record does not offer any clue as to the hearing of
that motion. <o:p></o:p>What followed in sequence,
however, was an application by the respondent’s new Counsel before the court
then differently constituted praying for an extension of time within which to
appeal against the judgment given on 25th July, 1997 in favour of the appellant
on the counter-claim and also against the dismissal of the respondents’ claim
on the 17th April 1996. The motion was filed on the 26th January, 1998 at 9.05
a.m. The learned trial judge granted the application for extension of time.<o:p></o:p>&nbsp;It is against this ruling that the
defendant/appellant lodges this appeal. His main ground of appeal reads;—<o:p></o:p>&nbsp;“The learned trial judge erred in granting the
application when the conditions precedent for such grant were not fulfilled.” <o:p></o:p>Counsel for the appellant
submitted that the learned trial judge was wrong for the following reasons
among others;— <o:p></o:p>(a)
because he erred with respect to the time within which the application could
have been made; <o:p></o:p>(b)
because there were no good and substantial reasons for the application,<o:p></o:p>&nbsp;(c) because there were no grounds or any
sufficient grounds of appeal which prima facie, show good cause for the
extension to be granted. <o:p></o:p>I intend first to deal
with the issue of time. The rules provide that a prospective appellant has 21
days within which to appeal against an interlocutory judgment: See rule 9(1) of
the Court of Appeal Rules 1997 (C.I.19) and three months within which to appeal
against a final judgment: See rule 9(1)(b) thereof.<o:p></o:p>&nbsp;The rules following thereafter are vital for
the purpose of this appeal and I reproduce them hereunder. It is provided in
rules 4 and 5 of C.I. 19 that:<o:p></o:p>&nbsp;“(4) No application for extension of time in
which to appeal shall be made after the expiration of three months from the
expiration of the time prescribed by this rule within which an appeal may be
brought. <o:p></o:p>(5) An application for
extension of time must be supported by an affidavit setting out good and
substantial reasons for the application and grounds of appeal which, prima facie,
show good cause for the extension of time to be granted.”<o:p></o:p>&nbsp;The record shows that the respon</main>