THE REPUBLIC vs. DISTRICT MAGISTRATE, NAVRONGO EX-PARTE; TUNLIK KANGARIBA [2010]DLCA3704

Date	2010-06-25
Suit No.	CIVIL APPEAL NO. H1/4/2010
Citation No.	[2010]DLCA3704

MARIAMA OWUSU (MISS) J.A. (PRESIDING

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2010]DLCA3704
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>DISTRICT MAGISTRATE,
NAVRONGO<o:p></o:p>EX-PARTE; TUNLIK
KANGARIBA<o:p></o:p>&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;[COURT OF
APPEAL, KUMASI]<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. H1/4/2010&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;
&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: 25TH
JUNE, 2010<o:p></o:p>

</div>CORAM:
<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">

MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<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;
padding:0in 0in 1.0pt 0in">

JUDGMENT<o:p></o:p>

</div>MARIAMA OWUSU J.A. <o:p></o:p>This is an Appeal against the
decision of the High Court, Bolgatanga, dated 18-5-09.&nbsp;&nbsp; In the said decision, the Judge ruled as
follows;<o:p></o:p>“Clearly,
an application for an Order of certiorari is not a pleading.&nbsp;&nbsp; That being so, time will run during the
vacations where an application for certiorari is concerned.&nbsp;&nbsp; That is to say, the application is brought
out of time.&nbsp;&nbsp; No extension of time was
sought by the Applicant to bring the application out of time.&nbsp;&nbsp; The present application should not see the
light of day.&nbsp;&nbsp; It is accordingly
refused”.<o:p></o:p>Dissatisfied with the decision of
the High Court, the Applicant/Appellant appealed o the Court of Appeal.<o:p></o:p>The Grounds of Appeal are as
follows;<o:p></o:p>[1]&nbsp;&nbsp;&nbsp; The Judge erred in law by holding that, the
period of the legal vacation is not to be excluded in the computation of the
time within which an application for certiorari ought to be brought.<o:p></o:p>[2]&nbsp;&nbsp;&nbsp; Additional Grounds to be filed upon receipt
of the record of Appeal.<o:p></o:p>The
relief sought from this Court is as follows;<o:p></o:p>“That the decision of the trial
Court be set aside and the application for certiorari be granted”.<o:p></o:p>The brief facts of this case are as
follows;<o:p></o:p>The District Court, Navorongo in the
Upper East Region, on the 24-7-08, gave judgment for the Plaintiff against the
Defendant in a land suit.&nbsp;&nbsp; Dissatisfied
with the decision of the Court, the Defendant filed an application for judicial
review by way of certiorari in terms of Order 55 Rule [1] [a] of CI 47 to the
High Court.&nbsp;&nbsp; The main complaint of the
Defendant/Applicant/Appellant at the High Court was that, the trial Magistrate
in the SUIT NO. AS/48/08 titled
BAKEBUGAYE BAATA VS. TUNLI KANGARIBBA in his judgment relied on documents
that had not been tendered in evidence and so could not be cross examined
upon.&nbsp;&nbsp; Yet the Magistrate referred to
them and evaluated them in the judgment.&nbsp;&nbsp;
Consequently, the Magistrate committed an error of law on the face of
the record.&nbsp;&nbsp; In the circumstances, the
judgment should be quashed by the High Court as a nullity.<o:p></o:p>The High Court, Bolgatanga in its
Ruling dated 18-5-09 dismissed the application, on the ground that, the
application was brought out of time.&nbsp;&nbsp; <o:p></o:p>It is this Ruling that has
necessitated the instant Appeal. In this Appeal the
Defendant/Applicant/Appellant would be referred to simply as Appellant, and the
Plaintiff/Respondent/Respondent as Respondent.<o:p></o:p>Before dealing with the merits of
the Appeal I would want to put it on record that no additional Ground of Appeal
was filed as indicated in the Notice of Appeal filed.&nbsp;&nbsp; Again, I want to put it on record that, the
Respondent did not file any written submissions even though she was served with
the written submissions of the Appellant.<o:p></o:p>In arguing this Appeal, Counsel for
the Appellant in his written submissions filed pursuant to leave granted by
this Court on the 22-3-2010 argued Ground [1] of the grounds of Appeal filed
and submitted that, the High Court misinterpreted the Rules of Court on the
computation of time for the filing of an application for judicial review.&nbsp;&nbsp; Counsel quoted Order 80 Rule [2] of CI 47
and submitted that “Pleadings” has
been defined in the said Order as;<o:p></o:p>“The formal allegations by the
parties to a law suit of their respective claims and Defences with the intended
purposes of providing notice of what is to be expected at the trial”.<o:p></o:p>Counsel argued that, an application
for judicial review fits in comfortably in the above definition of pleadings,
which is very wide.&nbsp;&nbsp; He compared the
definition quoted supra to the definition as contained in the Old Rules i.e. LN
140A and submitted that, the legislature intended a wider application of the
Rule.&nbsp;&nbsp; He continued that, in the Old
Rules whilst pleading is defined to mean;<o:p></o:p>“Statement of cla</main>