MOKAB COMPANY GHANA LTD. vs. BRAGHA CONSTRUCTION COMPANY LTD. [2014]DLCA5123

Date	2014-02-20
Suit No.	CIVIL MOTION NO. H1/188/2014
Citation No.	[2014]DLCA5123

MARFUL- SAU JA (PRESIDING) ACQUAYE JA

MARGARET WELBOURNE JA

[2014]DLCA5123
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													<main id="main" class="content" style="min-height: 60rem" >MOKAB COMPANY GHANA LTD.<o:p></o:p>(PLAINTIFF/APPELLANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>BRAGHA CONSTRUCTION
COMPANY LTD.<o:p></o:p>(DEFENDANT/RESPONDENT/APPLICANT)<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;
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<p class="MsoNoSpacing" align="center" style="margin-left:.5in;text-align:center;
text-indent:-.5in;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL MOTION NO.
H1/188/2014&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: &nbsp;20TH FEBRUARY, 2014<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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MARFUL-
SAU JA (PRESIDING) ACQUAYE JA, MARGARET WELBOURNE JA<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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RULING<o:p></o:p>

</div>MARFUL
–SAU, JA:-The fundamental issue raised in this application is
whether this court was seised with jurisdiction when on the 20th day
of December 2012 it granted an application for interim injunction pending the
determination of an appeal lodged by the Plaintiff/Appellant/Respondent herein
against the refusal of the High Court, Fast Track Division to grant an
application for interlocutory injunction.<o:p></o:p>The main ground canvassed
by counsel for Defendant/Respondent/Applicant herein in seeking to set aside
the order granting the injunction is that this court was not seised with
jurisdiction because as at the 20th day of December 2012, when this
court granted the injunction the record of appeal had not been transmitted to
this court and Form 6 had not been issued by the Registrar of the court below,
that is the High Court, Fast Track Division.<o:p></o:p>We are being called upon,
in this application, to examine the conduct of this court as it sat on the 20th
December 2012, to ascertain whether it had jurisdiction to grant the
injunction.&nbsp; In other words we are to
ascertain whether the court erred in granting the application for injunction
pending an appeal against the refusal of an injunction by a lower court in the peculiar
circumstances of the case, when the record of appeal had not been transmitted
to this court.&nbsp; In conducting this
exercise we will like to briefly address the jurisdiction of the Court of
Appeal.&nbsp; It is trite learning that an
appeal is a creature of Statute and an appellate jurisdiction can only be
exercised when the appellant has brought himself/herself within the law
creating the appeal. <o:p></o:p>&nbsp;In Frimpong v. Poku(1962) 2 GLR 1 at 6 the
Supreme Court held thus:-<o:p></o:p>“A
right of appeal is always conferred by statute, and when the statute conferring
the right lays down conditions precedent to the raising of that right in a
litigant, it is essential that those conditions must be strictly performed
otherwise that right does not become vested.”<o:p></o:p>An appeal is deemed to be
entered at the Court of Appeal when Form 6 is issued by the Registrar of the
court below.&nbsp; The issuance of Form 6
means that the records of appeal are transmitted from the trial court to the
Court of Appeal.&nbsp; There is no dispute in
law as to when an appeal is deemed to have been entered in the appellate court
as the authorities are legion on this matter.&nbsp; In Ampong V Frempong (1965)
GLR 350, the Supreme Court speaking through Mills-Odoi JSC, delivered as
follows:-<o:p></o:p>“In
our opinion the appeal is entered, or is deemed to have been entered, the
moment the registrar of the Supreme Court receives the record and all the
accompanying documents listed in Rule 15(1) of the aforesaid Rules.&nbsp; It will be observed that the docket on the
file which contains all relevant materials for the due prosecution of the
appeal would have, at that state, been transmitted from the court below to this
court.&nbsp; On receipt of these documents the
court below becomes functus officio; the Supreme Court then becomes seised of
the whole of the proceeding as between the parties hereto and until the appeal
is finally determined every application therein shall be made to the court and
not to the court below, but any application may be filed in the court below for
transmission to the court.”<o:p></o:p>Then
in Ashanti Goldfields Company Ltd v. Westchester Resources Ltd, (unreported
Ruling of the Supreme Court, presided over by a single Justice, Dr. Date-Bah
JSC, in civil motion No. J8/29/2013 of 27th March 2013) the
learned Jurist discussing issues regarding the jurisdiction of the Supreme
Court held among others as follows:-<o:p></o:p>“On
the face of this provision, before the transmission of the record of appeal to
the Supreme Court, it does not have jurisdiction to deal with interlocutory
matters relating to a particular appeal, unless an application can be granted
on any of its other bases of jurisdiction such as its supervisory
jurisdiction.”<o:p></o:p>It is thus clear that
generally an appellate court like the Court of Appeal can only invoke its
jurisdiction when an appeal is properly entered at its Registry; that is, when
the entire record of appeal is received at its Registry after the issuance of
Civil Form 6 by the Registrar of the court below.<o:p></o:p>The facts of this case are
that the Plaintiff/Appellant/Respondent applied for an interlocutory injunction
at the High Court/Fast Track Division and was refused.&nbsp; The Respondent herein then filed an appeal in
this court against the order refusing the injunction on 29th July
2012.&nbsp; The Respondent filed an
application for an interim injunction pending the final determination of the
appeal against the order refusing the injunction.&nbsp; On the 20th December 2012 this
court differently composed then granted the application by ordering an
in</main>