DOREEN NAA ADOLEY QUARTEY (PETITIONER/RESPONDENT) vs. GODLOVE CHARLES KWATELAI QUARTEY (RESPONDENT/APPELLANTS) [2011]DLCA7435

DOREEN NAA ADOLEY QUARTEY (PETITIONER/RESPONDENT) vs. GODLOVE CHARLES KWATELAI Q... [2011]DLCA7435

Date	2011-12-15
Suit No.	CIVIL APPEAL NO: H1/150/2011
Citation No.	[2011]DLCA7435

YAW APPAU J.A. (PRESIDING)

DUOSE J.A.

GYAESAYOR J.A.

MR. AMOFA AGYEMANG FOR RESPT. /APPELLANT

MR. KWAME AKUFFO FOR PETITIONER/RESPONDENT

[2011]DLCA7435
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													<main id="main" class="content" style="min-height: 60rem" >DOREEN NAA
ADOLEY QUARTEY<o:p></o:p>(PETITIONER/RESPONDENT)<o:p></o:p><span lang="EN-US" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>GODLOVE
CHARLES KWATELAI QUARTEY<o:p></o:p>(RESPONDENT/APPELLANTS)<o:p></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:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL NO: H1/150/2011&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
15TH DECEMBER, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
AMOFA AGYEMANG FOR RESPT. /APPELLANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

YAW
APPAU J.A. (PRESIDING) ,DUOSE J.A., GYAESAYOR 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:0cm 0cm 1.0pt 0cm">

</div>YAW APPAU, J.A<o:p></o:p>This is an appeal against the judgment of the High Court,
Accra dated 24th April 2008. The original notice of appeal was filed on 24th
July 2008 but it was later amended on 24th June 2011 pursuant to leave granted
by this Court on 6th June 2011. The action was a petition brought under the
Matrimonial Causes Act, 1971 [Act 367] inter alia, for the dissolution of the
marriage between the petitioner and the respondent. The petitioner is the
respondent herein while the respondent in the petition is the appellant. They
would be referred to simply as appellant and respondent as pertains in this
Court. <o:p></o:p>Though the appellant listed as many as five grounds of
appeal in the amended notice of appeal, he hinged his appeal on the last two
grounds marked (d) and (e) respectively, which read:— <o:p></o:p>(d) That the trial judge assumed jurisdiction wrongly
contrary to the Chief Justice’s instructions, therefore the said judgment is a
nullity.<o:p></o:p>&nbsp;(e) That the judge
erred in law in setting aside the previous judgment given by Justice Richard
Asamoah on 12th April 2005.<o:p></o:p>&nbsp;Appellant
demonstrated in his submissions filed on 24th June 2011 why he thought the
decision of the trial court appealed against must be set aside on grounds of
nullity and he sounded very convincing. The respondent, in her submissions, has
however raised a jurisdictional question, which goes to the very root of the
appeal before us and which, when established, has the capacity or potential to
derail the entire appeal. This contention is that, the appellant has not properly
invoked the jurisdiction of this Court since the appeal was filed out of time.<o:p></o:p>&nbsp;She reminded the
Court that the judgment appealed against was entered on 24th April 2008 while
the notice of appeal was filed on 24th July 2008; meaning the appeal was filed
out of time for one day if properly reckoned according to the time stipulated
by section 9 (2) of C.I. 19. Section 9 (2) of C.I. 19 provides: “The prescribed period within which an
appeal may be brought shall be calculated from the date of the decision appealed
against.”<o:p></o:p>&nbsp;According to the
respondent, the three (3) month period prescribed under rule 9 (1) (b) of C.I.
19 for the filing of an appeal against a final decision, relative to the
instant appeal, ended on 23rd July 2008 so the last date for the filing of the
appeal against the judgment under impeachment should have been 23rd July but
not 24th July 2008. <o:p></o:p>The appellant had the opportunity to respond to this
alleged breach of statutory requirement and did respond to same in his reply to
the respondents written submissions in answer filed on 26th July 2011. He did
not deny the fact that the appeal was filed outside the stipulated time as
provided under rule 9 (2) of the rules of this Court i.e. [C.I. 19] without any
extension having been granted him by this Court or the trial court to do so, as
required under rule 9 (1) (b) of C.I. 19. He rather ran for cover under the
time-honuored dictum of the Privy Council in MACFOY v UAC LTD [1962] AC 152, as echoed by our highest court in MOSI
v BAGYINA [1963] 1 GLR 367; REPUBLIC v HIGH COURT, ACCRA; Ex-parte AFODA
[2001-2002] SCGLR 768 and a host of others that; where a judgment or order
is void either because it is given or made without jurisdiction or because it
is not warranted by any law or rule of procedure, the party affected is
entitled ex debito justitiae to have it set aside and that there is no time
limit in which the party affected by a void order or judgment may apply to have
it set aside. <o:p></o:p>