OSEI BONSU II vs. MENSAH AND OTHERS [2005]DLCA1003

Date	2005-05-26
Suit No.
Citation No.	[2005]DLCA1003

AKAMBA JA

DOTSE JA

RICHARD APALOO JA

KWASI AFRIFA FOR THE APPELLANT.

KWAKU PAINTSIL FOR THE RESPONDENTS.

[2005]DLCA1003
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">OSEI BONSU II<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MENSAH AND OTHERS<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>[2003-2005]
1 GLR 141<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>COUNSEL:<o:p></o:p>KWASI
AFRIFA FOR THE APPELLANT.<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">

KWAKU
PAINTSIL FOR THE RESPONDENTS. <o:p></o:p>

AKAMBA,
DOTSE AND RICHARD APALOO JJA<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Akamba JA.
This ruling arises from a preliminary objection taken by counsel for the
plaintiff-appellant (hereinafter referred to as the appellant) to the “notice
by the respondents of their intention to rely on preliminary objection: rule
16(1) of CI 19” filed on 2 March 2005.<o:p></o:p>The
facts leading to the application before us are that a motion was filed by the
defendant-respondents (hereinafter referred to as the respondents) on 2 March
2005 which was fixed for hearing on 22 March 2005. On the said day when counsel
for the respondents rose to move his motion, counsel for the appellant
interposed with an objection of his own to the hearing of the preliminary
objection slated to be moved that day. Given this state of affairs the court
decided to hear counsel for the appellant as to why the preliminary objection
filed on 2 March 2005 could not be heard or entertained.<o:p></o:p>Counsel
for the appellant contended that rule 16(1) of the Court of Appeal Rules, 1997
(CI 19) under which the respondents premised their application envisages or
contemplates a situation when the appeal ir ripe for hearing as opposed to when
the appeal is merely pending submission of the written arguments. In the
earlier instance, an applicant is obliged to file his objection as per the
rules. According to counsel, the essence of this provision whence the objection
is taken to the hearing of the appeal is so that the court will have the
benefit of all the records for the court’s perusal. It was further urged that
the respondents had not filed their answer or response to the appellant’s
written arguments within the three weeks allowed by the rules, hence the
present process falls outside the rules. Counsel intimated that their searches
revealed that the respondents were served on 14 February 2005 and as a result
the present process falls out of the rules and should therefore be dismissed.<o:p></o:p>Counsel
for the respondent was just as vehement in his opposition as the appellant’s
counsel was in support of his cause. His objection was that noting in the rules
of this court enjoined them (the respondents) to submit their written case
before raising an objection such as was filed on 2 March 2005. He contended
that a preliminary objection can be taken at any point in time after the notice
of appeal has been filed and up to the time the appeal is ripe for hearing, The
respondents’ counsel also stated that it was the practice of this court to
direct that written submissions be filed for the hearing of the substantive
appeal only after a preliminary point has been heard and determined. The reason
for this, according to counsel, was that no useful purpose will be served by
the delivery of the written arguments when it is the subject of attacks. Our
attention was however not drawn to any practice direction of this court to that
effect. In a brief response, counsel for the appellant countered the
respondents’ arguments saying that a false step does not freeze the flow of
time; relying on Imbeah v Ababio [2000] SCGLR at 260 and Darkwa v Kwabi IV
[1992-93] GBR 308.<o:p></o:p>The
practice and procedure of this court in sofar as it is regulated by written
instrument is principally governed by CI 19 as amended by the Court of Appeal
(Amendment) Rules, 1998 (CI 21) and to a lesser extent by practice directions,
if any, and directions of the highest court of the land, the Supreme Court.
Practice directions are issued with the authority of the court or the judges of
the court to whi</main>