EXCEL LOGISTICS GH LTD. vs. GPRTU OF TUC [2007]DLCA7013

Date	2007-07-13
Suit No.	CIVIL APPEAL NO. H1/191/2005
Citation No.	[2007]DLCA7013

AKAMBA J.A. PRESIDING

KUSI-APPIAH JUSTICE OF APPEAL

DOTSE JUSTICE OF APPEAL.

JOE ADDAE ABOAGYE ESQ. FOR DEFENDANTS/APPELLANTS

OSEAWUO CHAMBERS FOR PLAINTIFF/RESPONDENT

[2007]DLCA7013
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													<main id="main" class="content" style="min-height: 60rem" >EXCEL LOGISTICS GH LTD.<o:p></o:p>(DEFENDANT/APPELLANTS)<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">GPRTU OF TUC<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p><o:p>&nbsp;</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">

<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. H1/191/2005&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: 13TH
JULY, 2007<o:p></o:p>

</div>COUNSEL: <o:p></o:p>JOE
ADDAE ABOAGYE, ESQ. FOR DEFENDANTS/APPELLANTS. <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">

OSEAWUO CHAMBERS FOR
PLAINTIFF/RESPONDENT.<o:p></o:p>

AKAMBA J.A. PRESIDING, KUSI-APPIAH
JUSTICE OF APPEAL, DOTSE JUSTICE OF APPEAL.<o:p></o:p>

</div>AKAMBA,
J.A <o:p></o:p>This
is a motion filed against the hearing of this appeal. Before dealing with the
substantive appeal filed on 3rd September 2004 at the High Court Tema against
the judgment delivered on 27th August 2004 by the said High Court, it is
important to first surmount this procedural obstacle raised by way of
preliminary objection which we intend to address. <o:p></o:p>The
plaintiffs/respondents (hereinafter simply referred as the respondents) filed a
separate and independent notice of their intention to rely upon a preliminary
objection on 13th April 2006, the same date that they (respondents) filed their
written submission. It is reasonable to infer that by the sequence of filing
the notice, the same being a motion at the same time with the written
submission, the motion is presumed to have been filed first and ought to be
dealt with before considering the written submission. This position is also
supported by the opening arguments in the respondents written arguments which
urge that the written submissions were filed out of caution just in case their
preliminary objection was not sustained. From the clear statement of the
position taken by the respondents it would be grossly unreasonable and indeed
unfair to take the position that the respondents had waived their objection by
the subsequent or simultaneous filing of their statement of case. <o:p></o:p>Now
to the issues raised in the preliminary objection. The respondents' objection
is to the fact that despite the transmission of the records in April 2005
together with the issuance of Civil form 6, the appellants filed their
statement of case on 27th March 2006, without obtaining the leave of the court
in obvious violation of the mandatory provision of rule 20 (1) of CI 19 (as
amended by CI 25) which enacts as follows: <o:p></o:p>“20 (1). An appellant shall within 21
days of being notified in Form 6 set out in Part 1 of the Schedule that the
record is ready, or within such time as the court may upon terms direct, file
with the Registrar a written submission of his case based on the grounds of
appeal set out in the notice of appeal and such other grounds of appeal as he
may file.” <o:p></o:p>From
the records of this court, the form 6 in respect of this appeal was issued at
the lower court on 31st March 2005 and same served on the respondents on 7th
April 2005 whilst the record of proceedings was transmitted to this court on
11th April 2005. The appellants then after filed their statement of case on
27th March 2006. By a simple computation of time, the appellants filed their
statement of case some eleven months after the twenty-one (21) days within
which to file their statement of case. There is no record that leave was sought
and granted by this court prior to the filing of the statement in question. The
respondents are dissatisfied with the appellants’ failure to comply with the
requirement to file their written statement within 21 days or failing that to
obtain the leave of the court to file out of time. The appellants make no
pretensions about filing within the stipulated 21 days required under rule 20
(1) supra. Their only response is that the delay in filing their submissions
was not deliberate but due in part to their attempt to amend the original
Notice of Appeal which was filed on 11th April 2005 and could not be taken
until the 22nd November 2005 owing to the ill health of the Respondents’
counsel. The statement of case filed on behalf of the Appellants pursuant to
their amended notice of appeal was made on 24th March 2006. At page 62 of the
record of appeal, we have the notice of appeal filed on 3rd September 2004.
There is no record of any amended notice of appeal on the appeal record except
for the reference in the title of the statement of case filed on behalf of the
Defendants /Appellants “pursuant to leave” on 27th March 2006 in which
reference was made to the “grounds of
appeal filed in the amended notice of appeal” for which leave was granted
on 22nd November 2005. It is apparent that what the appellants sought from the
court was not an amendment of the notice of appeal but an amendment to the
grounds of appeal. Whatever the appellants desired to achieve by the steps they
took they were obliged to bear in mind that they had twenty-one (21) days
within which to file their statement of case upon receipt of the form 6 and if
they took certain</main>