C. K. FYNN vs. OP. DUNKOR (SUB. BY MOSES K. QUAINOO) [2002]DLCA6671

Date	2002-06-27
Suit No.	CA/NO 145/2000
Citation No.	[2002]DLCA6671

WOOD JA.(PRESIDING)

ARYEETEY JA.

AMONOO-MONNEY

[2002]DLCA6671
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													<main id="main" class="content" style="min-height: 60rem" >C. K. FYNN<o:p></o:p>vs.<o:p></o:p>OP. DUNKOR (SUB. BY
MOSES K. QUAINOO)<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;
padding:0in 0in 1.0pt 0in">

CA/NO 145/2000&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; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 27TH JUNE 2002<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>WOOD
JA.(PRESIDING), ARYEETEY JA., AMONOO-MONNEY <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="text-align:center;line-height:115%;
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</div>WOOD, JA <o:p></o:p>The
Plaintiff/Respondent sued the three Defendant/Appellants for general and
special&nbsp; damages, as well as for the
return of building materials collected by them or their&nbsp; value assessed at ¢100,000. <o:p></o:p>The
brief facts upon which he based his claim are that in 1970, the 3rd appellant
acting as his agent, bought and held in trust for him an uncompleted building
valued at ¢820, expressed also as £425, and later conveyed the legal title to
him. <o:p></o:p>However
in 1984, the 1st Appellant, in his capacity as head of his family, sued the 2nd
and 3rd Respondents in respect of the same property, inter alia for a
declaration of title, and damages for trespass on the basis that the property
sold him was family property, it having devolved on the family on the death
intestate of the original owner, his brother. The Respondent applied and was
joined to the suit as co-defendant.&nbsp;
Those other parties however settled the matter out of court and the case
withdrawn by the 1st Appellant, the Plaintiff in that suit numbered L2/84. The
Appellants subsequently caused the subject matter which had then been completed
by the Respondent, obviously, at considerable cost to him to be demolished,
compelling him to institute these proceedings in vindication of his rights. <o:p></o:p>Aside
from the two original grounds of appeal one of which is the usual omnibus
ground, the Appellant filed four other additional grounds. Those which were
specifically argued were the ‘c’, ‘d’ and ‘e’ which state: <o:p></o:p>“(c)&nbsp;
the trial judge erred in law in&nbsp;
not holding that the consent judgment in suit no L2/84 could not be
impugned except on stated legal grounds.&nbsp;&nbsp;&nbsp;
<o:p></o:p>(d)&nbsp;
The trial judge erred in law in not holding that the purchase of the
land from 2nd Defendant who had no title or authority from 1st Defendant could
not pass title to the Plaintiff. <o:p></o:p>(e)&nbsp;&nbsp;
The trial judge erred in law in not resolving the legal effect of the
document executed by the 3rd Defendant without jurat in favour of the Plaintiff
when the 3rd Defendant pleaded illiteracy”. <o:p></o:p>The
Plaintiff/Respondent however filed a notice of cross appeal against that part
of the decision of the court which dismissed the claim for the return of the
building materials or their value and which failed to take cognizance of the
inflationary trends in the country that has affected his original claim for
special damages. <o:p></o:p>Under
the Court of Appeal Rules, 1997, CI.19, however, it is not necessary for a
respondent who is nevertheless dissatisfied with the judgment appealed from (by
his opponent), to give notice by way of a cross appeal. Where he/she also
intends to call for a variation of the decision complained of (all that in
required of him/her under the rules) is to cause written notice in the model
form 7 of the schedule of his intention to be served on those parties who may
be affected by his contention at the hearing of the appeal. What must also be
included in the notice is the grounds on which he intends to rely. The proper
procedure is clearly set out in self-evident rules which I reproduce hereunder.
<o:p></o:p>“15 Notice by respondent of contention
that judgment should be varied.<o:p></o:p>1.&nbsp;
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
as in Form 7 in part 1 of the schedule of his intention to be given to every
party who may be affected by the contention. <o:p></o:p>2. The respondent shall clearly state
in his written notice the grounds on which he intends to rely and within the
same period shall file with the registrar of the court below, five copies of
the notice, one of which shall be included in the record”. <o:p></o:p>What
then is the effect of non-compliance with the rules, or more specifically put,
what are the consequences, if any, where in contravention of the rules, a
respondent as happened in this instant case, has filed a cross-appeal. <o:p></o:p>The
answer to this critical question may be found principally in the sub rule (3)
of Rule 15 of CI.19. Perhaps also rule 63 of C.I. 19 as well as the undoubtedly
just rule of equity that it looks at the intent rather than the form.&nbsp; The important sub rule (3), which affords a
ready answer to this question stipulates: <o:p></o:p>“omission to give the written notice
shall not affect any powers of the court, but the&nbsp; court may consider it a ground for
adjournment of the appeal upon such terms as to costs or otherwise as the court
considers just”. <o:p></o:p>Failure
to comply with the rules therefore is not fatal and would not affect the powers
of the court to receive arguments on the contention and effect the necessarily
just changes in the decision complained of. It must be emphasized that the rule
does not forbid the issue of a notice of cross appeal.&nbsp; It simply states that it is not a necessity,
in others words that it is a wholly unnecessary step. Of course the court may,
in appropriate cases, adjourn for due compliance with the rules. Again since
equity looks at the substance rather than the form, the filing of the notice of
cross appeal rather than the forming is obviously not fatal to the respondent’s
case. I believe the reasoning behind the rule15 (3) is again founded on the
rule 32 subrules (1) <o:p><</main>