ISHAQA MARTEY & 4 ORS. vs. SHEIK ADAM MOHAMMED APEATU [2004]DLSC6412

Date	2004-06-16
Suit No.	CIVIL APPEAL NO. J.4./4/2004
Citation No.	[2004]DLSC6412

BROBBEY J.S.C. (PRESIDING)

DR. DATE-BAH J.S.C.

ANSAH J.S.C. ADINYIRA J.S.C.

BAFFOE-BONNIE J.S.C.

[2004]DLSC6412
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													<main id="main" class="content" style="min-height: 60rem" >ISHAQA MARTEY &amp; 4 ORS. <o:p></o:p>(PLAINTIFFS/RES./APPELLANTS)<o:p></o:p>&nbsp;vs.<o:p></o:p>SHEIK ADAM MOHAMMED APEATU<o:p></o:p>(PLAINTIFFS/RES./APPELLANTS)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. J.4./4/2004&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: 16TH JUNE, 2004<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BROBBEY J.S.C. (PRESIDING), DR.
DATE-BAH J.S.C., ANSAH J.S.C. ADINYIRA J.S.C., BAFFOE-BONNIE J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>MRS.
WOOD, J.S.C. <o:p></o:p>On
the 31st of August, 1998, the Respondent appealed against the decision of the
High Court, Kumasi dated the 12th of August, 1998. <o:p></o:p>The
appeal was however, struck out by the Court of Appeal on the 30th April, 2002
upon a registrars summons, for non-compliance with the rule 20(1) of the Court
of Appeal Rules 1997, C.I. 19, namely, failing to file a written submission of
case within the time stipulated under the rules. <o:p></o:p>Subsequently,
on the 6th of May, 2002, he then filed a motion supported by an affidavit, in
which he prayed that Court to relist the appeal. The Court unanimously granted
the application and restored the appeal to the cause list for hearing on the
merits. <o:p></o:p>Dissatisfied
with the grant of the order of relistment, the Appellant has appealed to us on
the sole ground that <o:p></o:p>"The
ruling is unreasonable and cannot be supported having regard to the affidavit
evidence on the record." <o:p></o:p>Appellant's
counsel's complaint against the exercise of the Court's discretionary
jurisdiction in this instant case, may be summed up as follows: <o:p></o:p>First,
that the Court's main finding, and on which it based its decision, that the
Respondent's delay in sending the Form 6 to his counsel for due compliance with
the rules within the statutory time limit, was due to his being "untutored
in law and illiterate", is not borne out by the affidavit evidence.
Counsel based his submission on the fact that by the paragraph 4 of his
accompanying affidavit, the Respondent attributes the delay to
"inadvertence and forgetfulness". <o:p></o:p>Second,
it was urged that the clear evidence that counsel failed in any event, to take
the necessary remedial steps to have the statement promptly filed, even after
the initial delay of three months, does not justify a grant of the order. In
other words, the Court failed to exercise its discretion judicially, given that
the evidence shows an undue or inordinate delay in submitting the application
for enlargement of time. <o:p></o:p>Third,
that the Respondent's whole conduct is a clear manifestation of bad faith. <o:p></o:p>Fourth,
that the Applicant has not demonstrated that he has a good or arguable case on
appeal. <o:p></o:p>Quite
rightly, the finding that the delay was excusable on the grounds that
Respondent was "illiterate and untutored in law" is clearly against
the weight of the affidavit evidence. Recognizing that in applications of this
nature, the first hurdle an applicant has to clear is to show a good sufficient
cause for the delay, (in this case, a seven month delay) the Respondent set out
the following matters in his affidavit: <o:p></o:p>6.
"That I inadvertently failed to forward the Form 6 to my solicitors and it
was only upon inquiries from my solicitors sometime in January 2002 that I
realized that I had forgotten to inform them. <o:p></o:p>7.
That I am informed by my solicitors that upon their perusal of the Appeal
record, they realized that several matters were missing and they accordingly
drew the attention of the Registrar of this Honourable Court by letter dated
26th April, 2002. . ." <o:p></o:p>8.
That my solicitors were feverishly working on the statement of case but were
hindered by the missing proceedings and materials in the appeal record. <o:p></o:p>9.
That, furthermore, the failure to complete the statement of case within time,
had to also do with the complexity of the case because although the suit was
commenced in 1984, in the Kumasi High Court, by the time my current solicitors
were appointed in 1997, the Plaintiffs had already called 23 witnesses and
closed their case and I was in the box as the last witness having already
called 15 witnesses". <o:p></o:p>As
Appellants counsel rightly argued, Respondent attributed his initial delay of 3
months to pure "inadvertence and forgetfulness", and did not
establish any nexus between these factors and his "illiteracy or being
untutored in law". The Court's finding on the cause of the delay is
therefore in error. <o:p></o:p>Since
an appeal is by way of a rehearing, we are seized with jurisdiction to rehear
this matter, and therefore the legitimate question is whether in spite of this
erroneous finding, there is nevertheless evidence</main>