JONAS ADDO McKAY, MR. OKU AND MRS. OKU vs. DANIEL MENSAH AND NATIONAL LOTT RECEIVERS [2013]DLSC2697

JONAS ADDO McKAY, MR. OKU AND MRS. OKU vs. DANIEL MENSAH AND NATIONAL LOTT REC... [2013]DLSC2697

Date	2013-04-10
Suit No.	CIVIL APPEAL NO. J8/49/2013
Citation No.	[2013]DLSC2697

BENIN J.S.C.

BAFFOUR ASSASIE GYIMAH FOR THE APPLICANTS.

FELIX QUARTEY FOR THE RESPONDENTS.

[2013]DLSC2697
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													<main id="main" class="content" style="min-height: 60rem" >JONAS ADDO
McKAY, MR.&nbsp; OKU AND MRS.&nbsp; OKU<o:p></o:p>vs.<o:p></o:p>DANIEL
MENSAH AND NATIONAL LOTT RECEIVERS<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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. J8/49/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 10TH APRIL, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>BAFFOUR
ASSASIE GYIMAH FOR THE APPLICANTS.<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">

BENIN
J.S.C., SITTING AS A SINGLE JUSTICE OF THE SUPREME COURT<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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JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>BENIN JSC:&nbsp; <o:p></o:p>&nbsp;On 16th January 2012 the Court of
Appeal dismissed an application filed and moved by the 1st
defendant/appellant/applicant hereinafter called the applicant praying the
court to stay execution of judgment delivered by the High Court, Accra, on the
sole ground that it was out of time. Nine days later the applicant applied to
the Court of Appeal to review its decision.&nbsp;
The record shows that it was not until 8th November 2012 that
the Court of Appeal delivered its opinion dismissing the application for
review. Dissatisfied with this ruling, the applicant appealed to this court by
notice dated 15th November 2012. The applicant then filed what they
termed repeat application for interlocutory injunction pending appeal. The
plaintiffs/respondents/respondents, hereinafter called the respondents, raised
a preliminary objection to the application for interlocutory injunction. It is
the preliminary objection which is the subject of this ruling.<o:p></o:p>Three
grounds were raised in the notice of preliminary objection. These are:<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:150%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That this court is not
seised with jurisdiction to hear and determine the application for
interlocutory injunction.<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:150%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That this court is not
seised with an appeal in this cause and therefore not clothed with jurisdiction
to hear the application.<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:150%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;">3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That this court is not
seised with jurisdiction to hear a REPEAT MOTION for interlocutory injunction. <o:p></o:p>The
parties filed their statements in respect of the preliminary objection on the
court’s directive. Counsel for the respondents argued the second ground to
begin with. Counsel’s submission was that in reality the decision of the Court
of Appeal which the applicants are appealing against is that of 16th
January 2012, and not the Ruling on the Review of 8th November 2012.&nbsp; According to Counsel, time to appeal against
the January 16 decision had ran out so the appeal against the Review Ruling was
a disingenuous way of circumventing the rules on appeal in respect of time. A review
could not be substituted for an appeal, Counsel submitted, citing the Court of
Appeal decision in Swaniker v. Adotei Twi II (1966) GLR 151.<o:p></o:p>For
his part, Counsel for the applicant pointed out that the appeal is not against
the 16th January decision but that of 8th November 2012.
Counsel submitted that the mere fact that there is a good ground upon which a
judgment could be set aside on appeal is not itself a ground for granting
review.<o:p></o:p>It
seems to me that this ground of objection is untenable for the simple reason
that at this stage the court only has to examine the notice of appeal to find
out if it satisfies the rules of court including time of filing. On the face of
the notice of appeal the applicant appealed against the ruling of 8th
November 2012. The respondents are not saying that the applicants cannot appeal
against the ruling of 8th November alone, to the exclusion of the 16th
January ruling. If they have the right to appeal against the 8th
November ruling then the notice of appeal is valid as it satisfi</main>