PRESBYTERIAN CHURCH OF GHANA vs. REV. C. E. N. DOKU [2005]DLSC6439

Date	2005-05-20
Suit No.	CIVIL APPEAL NO.3/2001
Citation No.	[2005]DLSC6439

ATUGUBA J.S.C (PRESIDING)

MISS AKUFFO J.S.C.

LARTEY J.S.C.

ANSAH J.S.C

ANINAKWA J.S.C.

APPELLANT IN PERSON

MR. ADUAMA OSEI FOR RESPONDENT

[2005]DLSC6439
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													<main id="main" class="content" style="min-height: 60rem" >PRESBYTERIAN CHURCH OF GHANA <o:p></o:p>(RESPONDENT)
<o:p></o:p>vs.<o:p></o:p>REV. C. E. N. DOKU <o:p></o:p>(APPELLANT)<o:p></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;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO.3/2001&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 20TH APRIL, 2005<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPELLANT IN PERSON <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. ADUAMA OSEI FOR RESPONDENT<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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ATUGUBA, J.S.C (PRESIDING) MISS
AKUFFO, J.S.C. LARTEY, J.S.C. ANSAH, J.S.C AND ANINAKWA, 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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OPINION<o:p></o:p>

</div>SOPHIA
A.B. AKUFFO, J.S.C. <o:p></o:p>By
a Notice of Appeal filed on 17th November 2000 the Appellant appealed against
the judgment of the Court of Appeal, delivered on 16th December 1999, whereby
the said court affirmed the High Court’s finding that the premature retirement
of the Appellant was unlawful and, therefore, the Appellant was entitled to
compensation. The court, however, set aside the trial court’s award of
¢5,000,000.00 damages (calculated on the basis of 7 years’ salary) as too high,
and substituted damages calculated on 2 years’ salary. The Learned Judges also
affirmed the High Court’s order for the recovery of an amount of ¢162,008.00,
on the ground that the Respondent had failed to establish the basis for the
deduction of such an amount from the Appellant’s entitlements, and ordered that
the said amount should attract interest at the prevailing bank rate up to the
date of their judgment. <o:p></o:p>The
Respondent on 13th November 2001 filed a notice of preliminary legal objection
to this appeal upon the ground that the appeal is incompetent since the Notice
of Appeal was filed almost 9 months after the time limited for lodging appeals
had expired. Furthermore, the Respondent contended that there is nothing on the
record to show that the Appellant at any time applied for or was granted an extension
of time within which to lodge his appeal. The Respondent also contended that,
in any event, if any such extension was ever granted, then it was without prior
notice to the Respondent and is, therefore, a nullity. Against this objection,
the Appellant filed a reply on 21st December 2001. <o:p></o:p>Although
at the hearing of the appeal, counsel for the Respondent withdrew the
objection, it is my view it raises issues that are fundamental to the propriety
of the appeal before us, which we must resolve before embarking on any
consideration of the merits of the appeal. We would have been bound to take
into account, as a matter of routine and proper practice, the question of
whether or not the appeal is properly before us, even if the Respondent had not
raised it, since it goes to our jurisdiction in the matter. <o:p></o:p>The
Appellant’s Notice of Appeal reads, in part, as follose:— <o:p></o:p>"Take
notice that the Appellant … having obtained leave on the 31st day of August
2000, of the Court of Appeal…." <o:p></o:p>The
Appellant, in his Reply to the Notice of Preliminary Objection, asserted that:—
<o:p></o:p>"It
is on record, Ref. No. SCR/104 dated 31st August 2001(sic) that his Lordship,
the Chief Justice instructed Ag. Judicial Secretary… to approve my petitions
dated 4th may and 5th June 2000… to enable me to file my appeal. The said
approval, which was dated 31-5-2000, was received by post on 30-8-2000. I,
therefore, filed my appeal by leave in accordance with Rule 7 of the Supreme
Court Rules (CI 16) in good faith and considered fit having regard to the
circumstances of the case…." (my emphasis) <o:p></o:p>According
to the Appellant, therefore, it was his Lordship, the Chief Justice who
extended the period within which he could appeal. There is indeed nothing on
the record before us demonstrating that the Appellant at any time applied to
any court for, or was granted, an extension of time for filing the appeal. It
is, therefore, clear that, despite the leave claimed, in the Notice of Appeal,
to have been granted by the Court of Appeal, no such leave or extension of time
has ever been granted to the Appellant. Rather, the assertion is apparently
based on some sort of approval purportedly granted by his Lordship the Chief
Justice. <o:p></o:p>By
virtue of article 131 of the Constitution, appeal to this court, in a civil
case, which commenced in the High Court, is as of right. As such, an Appellant
does not need the approval of the Chief Justice, or that of any other person
for that matter, to commence an appeal. However, although such an Appellant has
a constitutionally protected right of appeal, the procedure in appeals to this
court are also governed by the Supreme Court Rules, 1996 (CI 16), Rule 8(1)(b)
of which stipulates that an appeal against a final decision shall be lodged
within 3 months from the date of the decision, unless the court below or this
court extends the period. Rule 8, furthermore, provides in sub-rule (4) that: <o:p></o:p>"An application for the extension
time within which to lodge an appeal in respect of a final decision shall not
be made after the expiration of three months from the end of the periods prescribed
by this rule within which an appeal may be lodged." <o:p></o:p>