ZAIN COMMUNICATIONS GH. LTD vs. FRANCIS G. AMPRATWUM [2012]DLCA3100

Date	2012-05-31
Suit No.	CIVIL APPEAL NO. H1/68/2011
Citation No.	[2012]DLCA3100

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

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

JUSTICE SALLAH FOR DEFT/APPELLANT

[2012]DLCA3100
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													<main id="main" class="content" style="min-height: 60rem" >ZAIN COMMUNICATIONS GH.
LTD<o:p></o:p>vs.<o:p></o:p>FRANCIS G. AMPRATWUM<o:p></o:p>&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. H1/68/2011&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;DATE: 31ST
MAY, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUSTICE
SALLAH FOR DEFT/APPELLANT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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;
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MARIAMA
OWUSU (MISS) J.A. (PRESIDING), F.G. KORBIEH J.A., 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;
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JUDGEMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A.<o:p></o:p>It may be recalled that this appeal was
slated for judgment on the 27/4/2012 but the judgement did not come on because
the Court wanted to be satisfied on the issue: whether or not the notice of
appeal filed on the 19/11/2010 appealing against the judgment delivered on the
9/7/2010 without leave of the Court is properly before the court. The Court
therefore directed the parties and/or their counsel to file supplementary
written addresses to bespeak that matter. The Court subsequently received the
supplementary written addresses from both sides. It was argued for and on
behalf of the defendant/appellant that the notice of appeal filed on the 19/11/2010
was proper and not out of time because of the following reasons: the judgment
delivered on the 9/7/2010 was delivered in the absence of the
defendant/appellant. Order 36 rule 2(1) of the High Court (Civil Procedure)
Rules, 2004 (C.I. 47) provides that a judge may set aside or vary, on such
terms as are just, a judgment obtained against a party who fails to attend the
trial. Order 36 rule 2(1) of C.I. 47 is analogous to Order 14, rule 11 of the
High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court
(Civil Procedure)(Amendment)&nbsp; Rules, 1977
(L.I. 1129) which was interpreted by the Supreme Court in the case of Morkor v. Kuma (No. 1) [1999-2000] 1 GLR
721 to mean that a party against whom a judgment was obtained in that
party’s absence could make an attempt to have the judgment set aside; thus he
could consider such a judgment as not being final until the day his application
to have it set aside was refused. Therefore the notice of appeal, which was
filed less than three months after the appellant’s application to set aside the
judgment was refused, was filed within time and no leave was required before
filing to make it valid.<o:p></o:p><o:p>&nbsp;</o:p>The response of the respondent to these
arguments was that going by Rule 9(1)(b) of the Court of Appeal Rules, 1997
(C.I. 19), the notice of appeal was filed out of time because the decision
appealed against was a final judgment. The respondent further submitted that
the decision inMorkor v. Kuma (No. 1)
(supra) was distinguishable from the facts of this case because the
decision appealed against is a final judgment and that, that being the case,
the appellant’s notice of appeal had been filed out of time, thus contravening
the Court of Appeal Rules. He further contended that the judgment in Morkor v. Kuma (No. 1) (supra) was
based on Order 14 rule 11 of the High Court (Civil Procedure) Rules, 1954 (LN
140A) as amended by the High Court (Civil Procedure)(Amendment)&nbsp; Rules, 1977 (L.I. 1129) which have all been
revoked and therefore no longer have any application in our courts. He
therefore contended that this Court should strike out the appeal altogether.<o:p></o:p><o:p>&nbsp;</o:p>I will start my commentary on these two
legal arguments by saying that the main difference in the two arguments seems to
be that whilst the appellant is saying that Order 14 rule 11 of LN 140A as
amended by L.I. 1129 has an analogous provision in C.I. 47, namely Order 36
rule 2(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), the
respondent says that Order 14 rule 11 of LN 140A of L.I. 1129 has been revoked
and has no application in our courts. Order 36 rule 2(1) C.I. 47 provides that
a judge may set aside or vary, on such terms as are just, a judgment obtained
against a party who fails to attend the trial.Order 14 rule 11 of L.I. 1129
provided as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
‘A judgment given against a defendant who does not appear at the hearing
of an application under this Order may be set aside or varied by the Court on
such terms as it thinks just.’ <o:p></o:p>Given the wording of the two
provisions, it is my considered opinion that the essence of both provisions is
the same; it is that a party who does not appear at the hearing, whether of an
application or a trial by oral evidence, can apply to have the judgment given
in his absence set aside. That being the case, even though Order 14 rule 11 of LN
140A as amended by L.I. 1129 has been revoked, it has risen from its ashes like
the proverbial Phoenix, in the form of the provision in Order 36 rule 2(1) C.I.
47. This means that the Supreme Court decision inMorkor v. Kuma (No. 1) (supra) is fully applicable to this case.
The result is th</main>