LINUS VICTORY KAY-FIANYO, FELIX KETEKU vs EMMANUEL KWEKU KETEKU [2013]DLCA16157

Date	2013-04-24
Suit No.	SUIT NO. H3/287/2013
Citation No.	[2013]DLCA16157

HONYENUGA (J.A.)

DENNIS D. ADJEI (J.A.)

ACKAH-YENSU (J.A.)

DOCTOR ADIYA

HANSEN SENU

[2013]DLCA16157
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													<main id="main" class="content" style="min-height: 60rem" >LINUS
VICTORY KAY-FIANYO, FELIX KETEKU<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>EMMANUEL
KWEKU KETEKU<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt; margin-left: 0cm; margin-right: 4.5pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;text-justify:inter-ideograph;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. H3/287/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 24TH APRIL, 2013<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="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt; margin-left: 0cm; margin-right: 4.5pt;">

</div>CORAM<o:p></o:p>HONYENUGA (J.A.), DENNIS D. ADJEI (J.A.), ACKAH-YENSU
(J.A.)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm; margin-left: 0cm; margin-right: 4.5pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;tab-stops:
center 242.9pt left 303.0pt;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; RULING&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>OFOE,J.A:<o:p></o:p>The plaintiffs/applicants application
for extension of time came before us on the 20th of March 2013 as a
repeat application from the Hohoe Circuit Court. &nbsp;.The Circuit Court had refused their
application for extension of time to file their appeal with the main reason
that they were out of time by the rules of court. After listening to both
counsel and reading the processes filed before us the repeat application for
extension of time was by a majority of this court refused. Unfortunately I
could not agree with my able sisters that the application be dismissed. The
reasoning of my colleagues was that, to put it tersely, the
plaintiff/applicants were unpardonably out of the 6 months period stipulated by
the Court of Appeal rules within which one is to lodge an appeal. The
plaintiffs had to be sent packing out of court. I hereby state my reasons for
departing from my colleagues. I will refer to the applicants as plaintiffs and
the respondent as defendant as they were in the trial court.<o:p></o:p>&nbsp;The facts of the case are simple and not
disputed. It is a case in which the trial circuit judge made an announcement on
the 22nd August 2008 dismissing the case of the plaintiffs’ and
reserving the reasons for his judgment to a subsequent unspecified date. The
reasoned judgment was given on the 15th February 2012 by the trial
judge.ie about three and half years later. He has been transferred and had to
come back to give this reasoned judgment, as stated, in three and half years
later. After the announcement of this judgment on the 22nd August
2008 dismissing the case of the plaintiffs, they applied for a copy of the
judgment on the 12 /9/2008, 12th April 2009 and 12 /4/2010
but had no response from the court to these requests. So not only could the
court not provide the plaintiffs with the judgment but it also took the trial
court about three and a half years to produce the reasoned judgment. One of the
interesting questions that the circumstances of this case raise, on a closer examination
of the records before us, is whether there was any judgment recorded on this 22nd
August 2008 at all. I ask this question because on the 29th February
2012, last year, when counsel, who the plaintiffs had subsequently engaged,
wrote to the court asking for this judgment of the 22nd August 2008,
the registrar of the court answered as follows<o:p></o:p>“……………there
is no trace of the judgment delivered by His Honour the judge prior to the
giving of his reasons”<o:p></o:p>So what happened in the court that day?
The plaintiffs in their affidavit in support of their application admit that
the judge indeed made the announcement dismissing their case. It can’t be
disputed therefore that there was such delivery by the court. But did he make
the announcement from a written script or it was an announcement made in the
open air and thereafter nothing recorded? It is worth noting that the
plaintiffs, just about three weeks after the announced judgment, made the
application for a record of this judgment but never had it and had not had it
till today. Illiterates in the law as they were they were nevertheless quick in
applying for the judgment but were not given. The situation here then is the
non existence of any recorded judgment on the day it was announced and the
reasoned judgment coming out of the office of the judge three and a half </main>