ATAA ASHIE NIKOI vs. CHARLES QUIST [2013]DLSC2792

Date	2013-05-24
Suit No.	CIVIL APPEAL NO. J4/18/2011
Citation No.	[2013]DLSC2792

DR. DATE BAH J.S.C. (PRESIDING)

ANIN YEBOAH J.S.C.

BAFFOE BONNIE J.S.C.

BENIN J.S.C.

AKAMBA J.S.C.

BRIGHT AKWETEY ESQ (WITH HIM YEHODO KOTEY) FOR THE PLAINTIFF / APPELLANT/APPELLANT.

RANDALL OBENG-SAKYI ESQ FOR THE DEFENDANT/ RESPONDENT/ RESPONDENT.

[2013]DLSC2792
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													<main id="main" class="content" style="min-height: 60rem" >ATAA ASHIE NIKOI<o:p></o:p>vs.<o:p></o:p>CHARLES QUIST<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;
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CIVIL APPEAL NO. J4/18/2011 &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;DATE:
24TH
MAY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>BRIGHT AKWETEY ESQ, (WITH
HIM YEHODO KOTEY) FOR THE PLAINTIFF / APPELLANT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DR. DATE BAH J.S.C. (PRESIDING), ANIN
YEBOAH J.S.C., BAFFOE BONNIE J.S.C., BENIN J.S.C., AKAMBA &nbsp;J.S.C.&nbsp;&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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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<o:p></o:p>

</div><o:p>&nbsp;</o:p>BENIN,
JSC:-<o:p></o:p>This is an appeal against
the ruling of the Court of Appeal dated 18th June 2009, brought by
the Plaintiff/Appellant/Appellant, hereinafter called the Appellant. The Court
of Appeal gave a decision dismissing the appeal brought by the Appellant
against the Defendant/Respondent/Respondent, hereinafter called the Respondent.
<o:p></o:p>The facts of the case are
briefly as follows. The Appellant issued a writ of summons at the High Court
claiming declaration of title to a piece of land described in the writ, among
other reliefs. The Respondent entered appearance and filed a statement of defence
and also served a counterclaim on the Appellant. The Appellant failed to take out
summons for directions in the suit. The Respondent therefore filed an
application for the High Court to dismiss the Appellant’s claim and to enter
judgment for him on his counterclaim. The High Court heard the application and
dismissed the Appellant’s claims. But with regard to the counterclaim the court
adjourned it to enable the Respondent to lead evidence in proof thereof. On the
return date the court heard the evidence but adjourned for judgment, which it
delivered on 18th February 2004 upholding the counterclaim. A day
later the Respondent filed entry of judgment.<o:p></o:p>The record shows that
after the entry of judgment no proceeding took place in the matter until 13th
October 2004 when notice of change of solicitor was filed on behalf of the Appellant.
This was followed by motion to set aside the judgment of 18th
February 2004. The principal ground was that he was not aware of the
application as his previous solicitor did not communicate same to him. The long
and short of it all is that the High Court dismissed the application on merit
on 22nd December 2004, but gave reasons on 15th February
2005.<o:p></o:p>The next step in the
proceeding took place on October 7th 2005 when the Appellant filed
an ex parte application at the High Court asking for extension of time within
which to appeal against the judgment of 18th February 2004. The High
Court heard and granted the application. The Appellant filed a Notice of Appeal
pursuant to the extension of time granted by the High Court. After the parties
had filed their written submissions, the Respondent raised a preliminary
objection to the appeal. Two grounds were raised namely: i) the Appellant
failed to attach a copy of the order granting him extension of time to appeal
as required by Rule 9(6) of the Court of Appeal Rules, 1997 (C.I.19) so the
failure rendered the appeal incompetent; ii) the appeal was filed over
twenty-two months after the date of the decision appealed against, thereby
rendering the appeal process a nullity.<o:p></o:p>The Court of Appeal heard
arguments in respect of the preliminary objection and upheld it by a reasoned
ruling. First the Court held that following the amendment made by C.I. 21, it
was no longer a requirement to annex the order granting extension of time to
appeal. However, the Court took the view that the amended rule still required
the Appellant to disclose in the notice the date the extension of time was
granted and the name of the Judge or the court which granted it, so the objection
was still valid. The Court also held that the appeal was filed out of time and
the extension of time granted by the High Court was done without jurisdiction
and was therefore null and void. <o:p></o:p>It is against this ruling
that the present appeal has been brought on these grounds:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the Court of Appeal erred in law in failing to consider the effect of the fraud
perpetrated on the Plaintiff/Appellant/Appellant in the High Court by
Defendant/Respondent/Respondent in deliberately keeping the default judgment
for more than six months before serving it on the
Plaintiff/Appellant/Appellant.<o:p></o:p>2.