AJARA KASSIM vs. HAJIA MEMUNATU & 4 OTHER [2007]DLHC7381

Date	2007-09-06
Suit No.	SUIT NO E11/2/07
Citation No.	[2007]DLHC7381

HIS LORDSHIP G.S. SUURBAAREH J.

[2007]DLHC7381
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													<main id="main" class="content" style="min-height: 60rem" >AJARA KASSIM<o:p></o:p>vs.<o:p></o:p>HAJIA MEMUNATU &amp; 4 OTHER<o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO E11/2/07&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: 6TH SEPTEMBER 2007<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP G.S. SUURBAAREH J. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>By
way of a preliminary point law, counsel for the plaintiff/Appellant/Respondent
raised an objection to a cross-appeal filed by the
defendants/Respondents/Appellants on 18th April 2007. According to learned
counsel for the plaintiff/Appellant/ Respondent, since the judgment being
appealed against was delivered on 21st December 2006, by the provisions of
Order 51 r 3 (1) of the High Court (Civil Procedure) Rules 2004, CI 47, any
appeal should be brought within three months of the judgment sought to attacked.
He also submits that even though rule 4 of the Order gives room for extension
time, by subrule (2), an application for extension of time within which to
appeal must be made within a month after the time limited for bringing an
appeal under r 3. <o:p></o:p>Reacting,
learned counsel for the defendants/Respondents/Appellants referred to Order 81
r 1 of the High Court (Civil Procedure) Rules 2004, CI 47, and submits that the
Court has a discretion to grant an extension of time outside the time provided
by the rules having regard to the need to do justice between the parties. <o:p></o:p>It
is provided in Order 51 r3 (1) the High Court (Civil Procedure) Rules 2004, CI
47 as follows: <o:p></o:p>"3(1) Subject to rule 4, a person
wishing to appeal under Section 21(1) of the Courts Act, 1993 (Act 459) against
a decision of a District Court shall file a notice of appeal within three
months from the date of the decision appealed against." <o:p></o:p>Rule
4 of Order 51 of CI 47, which deals with extension of time, provides in subrule
(2) as follows: <o:p></o:p>4(2)" No application shall be
made after the expiration of one month after the time specified in rule 3
within which an appeal may be brought." <o:p></o:p>By
subrule (4) of Order 51 r 4 of CI 47, when time is extended, the date of the
order granting the extension, and the Court by which the order is made shall be
set out in the notice of appeal. <o:p></o:p>On
the face of the document filed on 18th April 2007, there is nothing to show
that it was filed pursuant to leave granted by this Court or the Court below.
This being the case, since the document was filed outside the time limited for
filing an appeal in accordance with the provisions of Order 51 r 3 (1) of CI 47
quoted above and was not filed pursuant to leave granted to file an appeal out
of time, the document so filed clearly contravened the rules with regard to
appeals from the District Court and therefore non-existent is the eyes of the
law. In his invaluable book, Civil Procedure, [1976ed] at page 122, E .D. Kom
stated as follows: <o:p></o:p>"The time within which to appeal
in a case of an interlocutory decision is fourteen days, and in the case of a
final judgment or decision is three months. No extension of time would be
granted after the expiration of the three months and fourteen days as the case
may be……” <o:p></o:p>Whilst
counsel for the plaintiff/Appellant/Respondent submits that filing of the
document styled "Cross-Appeal" on 10th April 2007 against a judgment
delivered on 21st December 2006 constitute a fundamental error, it is the
contention of opposing counsel that this is an irregularity and that under
Order 81 r 1 of the High Court (Civil Procedure) Rules 2004, CI 47, the Court
has a discretion, in the interest of justice, to allow an extension of time
within which to appeal at anytime. From the passage quoted from E.D Kom's book
(supra) and on the authorities, a person wishing to appeal against a judgment
or decision must strictly comply with the law giving him the right to appeal.
Thus, in NYE Y. NYE {1976} GLR 76 at 82 CA (Full Bench) Akufo-Addo C.J stated
as follows: <o:p></o:p>"It must be appreciated that
there is no inherent right of appeal in a litigant, nor indeed is there any
inherent power in a Court to hear appeals. Both the right and power are
creatures of statute, and unless the enactment creating the right of appeal is
explicit, clear and unambiguous in its language, no such right and no such
power can ever materialize. When however the right and power do materialize
they are to be exercisable only within the framework of the conditions for the
exercise". <o:p></o:p>In
SANDEMA-NAB vrs ASANGALISA AND OTHERS {l996} SC GLR 302 at 307, the Court,
Acquah JSC (as he then was), held that an applicant for leave to appeal or for
extension of time to apply for leave to filed out of time will be dismissed as
not having complied with the statutory rules and went on to quote with asic
approval the dictum of Akuffo-Addo C.J in the Nye case (supra). <o:p></o:p>On
his part Apaloo J A (as he then was) in ATTA KWADWO vrs BADU {1977} 1 GLR 1 at
6, after quoting the above dictum of Akuffo-Addo C.J in the Nye case (supra)
said: <o:p></o:p>"That case decides as clearly as
anything can be decided that a notice of appeal filed out of time and without a
valid extension of time was void. And the reason underlying this holding is
clear, namely, the right of appeal was not exercised in accordance with the
statutory conditions imposed for its exercise. That reasoning applies with
equal force to the exercise of right of review. There is no warrant for the
.judge's view that the effect of filing a notice of appeal out of time readers
the appeal voidable only”. <o:p></o:p>In
OTOO vrs DUA {1991} 2 GLR 247, CA at 257 to 258, Kpegah J.A (as he then was) in
his dissenting judgment held that: <o:p></o:p>"To make the notice of appeal
valid, it is essential that it</main>