JONAS ADDO MCKAY & ORS vs. DANIEL MENSAH & ANOR [2012]DLCA8621

Date	2012-11-08
Suit No.	SUIT NO.: H3/203/2012
Citation No.	[2012]DLCA8621

DOUSE J.A

DZAMEFE J.A

ADJEI J.A

MR. B.A. GYIMAH FOR 1ST DEFENDANT/APPLICANT

MR. FELIX QUARTEY FOR PLAINTIFF/RESPONDENT

[2012]DLCA8621
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													<main id="main" class="content" style="min-height: 60rem" >JONAS ADDO
MCKAY &amp; ORS<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>DANIEL MENSAH
&amp; ANOR<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">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO.: H3/203/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 8TH NOVEMBER, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
B.A.&nbsp; GYIMAH FOR 1ST DEFENDANT/APPLICANT<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">

MR.
FELIX QUARTEY FOR PLAINTIFF/RESPONDENT<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:0cm 0cm 1.0pt 0cm">

DOUSE
J.A, DZAMEFE J.A, ADJEI J.A&nbsp;&nbsp;&nbsp; <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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</div>DENNIS ADJEI, J.A.:<o:p></o:p>This application was brought under Rule 34 of the Court
of Appeal Rules, 1997, C. I. 19.&nbsp; It
provides as follows: -<o:p></o:p>“The
Court shall not review a judgment after it has been delivered unless it is
satisfied that the circumstances of the case are exceptional and that in the
interest of Justice there should be a review.”<o:p></o:p><o:p>&nbsp;</o:p>On 16th January, 2012 the 1st Defendant/Appellant/Applicant’s
application for a repeat stay execution of the judgments delivered by the High
Court on 25th October 2010 and 19th January 2011 were
dismissed by this Court because the Court was of the opinion that both appeals
were filed out of time and there was no appeal pending to cloth the Court with
jurisdiction to entertain the application.&nbsp;
The applicant’s contention is that the appeal filed against the order
made on 19th January 2011 was filed within time and this Court erred
in law when it held that the appeals against both decisions were filed out of
time.&nbsp; It is therefore the case of the
applicant that there is an error on the face of the record that makes his case
an exceptional one to be reviewed by this Court.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The application for review was filed on 25th
January, 2012, that is ten (10) days after the applicant’s application had been
dismissed.&nbsp; The time within which a
review application should be filed was not provided by the Rules of Court
Committee in C.I. 19 and the Court of Appeal too has not developed any such
practice.&nbsp; The application was filed
within ten (10) days after his application for the stay of execution had been
dismissed on technical grounds and would be taken as having been filed
timeously.<o:p></o:p><o:p>&nbsp;</o:p>The thrust of this review application is that on 25th
October, 2010; the High Court gave judgment in favour of the
Plaintiff/Respondent and made an order for accounts in respect of which the
Court thought it was wrongly calculated by the Plaintiff.&nbsp; The Registrar of the trial Court was to do
the accounting and calculate the interest payable thereon.<o:p></o:p><o:p>&nbsp;</o:p>The Registrar submitted the accounts and on 19th
January, 2011 the trial High Court made some orders in respect same. <o:p></o:p><o:p>&nbsp;</o:p>On 14th April, 2011, the Applicant herein
filed an appeal against the two decisions of the High Court.&nbsp; The Court of Appeal was of the opinion that
the appeal was filed out of time and there was no appeal pending for the stay
of execution to be grounded on it and the Court therefore struck out the
application for stay of execution as incompetent.<o:p></o:p><o:p>&nbsp;</o:p>The time within which to appeal in civil matters from
Circuit Court and the High Court is regulated by Rule 9 of C. I. 19.&nbsp; It provides as follows: -<o:p></o:p>“(1)&nbsp;&nbsp; Subject to any other enactment governing
appeal an <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; appeal shall not be brought after the
expiration of: -<o:p></o:p><o:p>&nbsp;</o:p></s</main>