M. N. OCANSEY vs. MADAM GRACE TEYE & 6 ORS TEMA DEVELOPMENT CORPORATION DOKU AGBEYEVU [2009]DLSC2500

M. N. OCANSEY vs. MADAM GRACE TEYE & 6 ORS TEMA DEVELOPMENT CORPORATION DOKU... [2009]DLSC2500

Date	2009-03-11
Suit No.	CIVIL APPEAL NO. J4/19/2008
Citation No.	[2009]DLSC2500

BROBBEY J.S.C. (PRESIDING)

DATE-BAH J.S.C

ADINYIRA J.S.C

DOTSE J.S.C

ANIN YEBOAH J.S.C.

J. O. AMUI FOR THE 2ND CO-DEFENDANT APPELLANT.

T. A. NELSON COFIE FOR THE RESPONDENT.

[2009]DLSC2500
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													<main id="main" class="content" style="min-height: 60rem" >M. N. OCANSEY<o:p></o:p>vs.<o:p></o:p>MADAM GRACE TEYE &amp; 6 ORS TEMA DEVELOPMENT
CORPORATION&nbsp;&nbsp;&nbsp; DOKU AGBEYEVU<o:p></o:p>[SUPREME
COURT]<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">

CIVIL
APPEAL NO. J4/19/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 11TH MARCH, 2009. <o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.
O. AMUI FOR THE 2ND CO-DEFENDANT 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">

T.
A. NELSON COFIE FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

BROBBEY,
J.S.C. (PRESIDING), DATE-BAH, J.S.C., ADINYIRA, J.S.C., DOTSE, J.S.C., ANIN
YEBOAH, J.S.C.<o:p></o:p>

</div>&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;
J U D G M E N T<o:p></o:p>ANIN
YEBOAH, J.S.C:-<o:p></o:p>This
is an appeal against the striking out of an appeal and failure to relist same
by the Court of appeal.&nbsp; The facts which
appear to be simple are that the appellant was a Co-defendant in a case which
was heard before the High Court, Tema.&nbsp;
The judgment in the case was delivered on 11/10/2001 and the appellant
who felt aggrieved by the judgment filed an appeal on the 2/11/2001.&nbsp; <o:p></o:p>&nbsp;As enjoined by procedural rules of the court,
the appellant and the respondent herein were invited by the registrar of the
High Court to settle records for the appeal.&nbsp;
The parties herein did not appear before the registrar of the Tema High
Court on 21st of January 2005 to settle the records by themselves.&nbsp; The solicitor for the respondent, however,
wrote a letter to the registrar and listed the documents and evidence which he
wanted to constitute the record for the purposes of the appeal.&nbsp; The appellant’s solicitor sent a law clerk in
the person of Benjamin Addey Tettey to represent the solicitor for the
appellant.&nbsp; He also requested that all
the processes so far filed and the entire record and evidence be compiled to
form the record for the appeal.&nbsp; The
Registrar then proceeded to list the conditions of appeal which is reproduced
for a fuller record:<o:p></o:p>Registrar
Conditions:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp; The Appellants to deposit the sum of
¢500,000.00 towards the preparation of the records.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp; To deposit the sum of Two million Cedis
(¢2,000,000.00) into court towards costs on appeal or in lieu of payment enter
into bond for the costs in like sum with one surety.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp; Appellants are to pay the bills of binding
the record of appeal after typing and photocopying of the relevant documents<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp; The above conditions to be fulfilled with
one month from today.<o:p></o:p>&nbsp;<o:p></o:p>J.N.
NYAGBLODZRO<o:p></o:p>HIGH
COURT REGISTRAR<o:p></o:p>The
record shows clearly that on 26/01/05 the appellant indeed paid the deposit of
¢500,000.00 in compliance with the first condition set out above.&nbsp; He, however, did not satisfy the condition
set out in paragraph 3 thereof.&nbsp; It
however, turned out that the appellant later went to the Registrar to demand
his deposit on instructions of his solicitor.&nbsp;
It is not clear whether the other condition set out in paragraph 2
thereof was fulfilled.&nbsp; On 27.10.2005,
counsel for the Respondent wrote to the trial court registrar demanding to know
whether indeed the appellant had on instructions of his solicitor withdrawn the
deposit he paid as part of the fulfillment of the conditions of appeal.<o:p></o:p>Counsel
for the respondent herein in the said letter threatened to report the conduct
of the solicitor for the respondent to the Chief Justice for causing the
withdrawal of the deposit.&nbsp; The reply to
the letter from the registrar of the Tema High Court dated the 1/11/2005,
however stated that the appellant had not withdrawn the ¢500,000.00 deposit he
had paid but had withdrawn&nbsp;&nbsp; an
amount&nbsp; of&nbsp; ¢150,000.00 which he&nbsp; paid as part – payment&nbsp; for the preparation of the&nbsp; binding&nbsp;
and photocopying which the registrar had fixed&nbsp; at ¢600.00.&nbsp;
No further payment was made and the registrar of the trial court on
8/11/05 issued a Certificate of Non-Compliance and addressed same to the Court
of Appeal for striking out of the appeal.<o:p></o:p>On
4/4/2006, the Certificate of Non-Compliance was listed before the Court of
Appeal for striking out.&nbsp; Both the
appellant and his counsel, Mr. J.O.Amui were present in court. The Court of
Appeal, basing itself obviously on the Certificate of Non- Compliance struck
out the appeal with cost of ¢2,000,000.000.&nbsp;
On 3/7/07, the appellant and his solicitor appeared before the Court of
Appeal this time to relist the appeal which was struck out on 4/4/2006.&nbsp; The Court of Appeal found no merit in the
application for relistment and proceeded to accordingly dismiss same.&nbsp; The refusal of the Court of Appeal to relist
the appeal has culminated in this appeal to this court.&nbsp; Before this court, learned counsel has filed
two grounds of appeal which were argued together in the statement of case filed
pursuant to the appeal.<o:p></o:p>Learned
counsel for the appellant has urged on this court that as the appellant had
subsequent to the striking out complied with the conditions and the record of
proceedings was ready at the time of the relistment, the court of appeal was in
error in refusing to relist this appeal. It was therefore submitted that the
appeal be allowed and the same restored to the list for determination on the
merits.<o:p></o:p>It
must be pointed out that all appeals are statutorily conferr</main>