THE REPUBLIC vs. KUMASI TRADITIONAL COUNCIL EX-PARTE; EBUSUAPANIN AFRAM OWUSU AND ANOTHER [2016]DLSC2823

THE REPUBLIC vs. KUMASI TRADITIONAL COUNCIL EX-PARTE; EBUSUAPANIN AFRAM OWUSU AN... [2016]DLSC2823

Date	2016-07-28
Suit No.	CIVIL APPEAL NO. J4/56/2016
Citation No.	[2016]DLSC2823

DOTSE JSC. (PRESIDING)

YEBOAH JSC

GBADEGBE JSC

BAMFO (MRS) JSC

PWAMANG JSC.

KWAKU YEBOAH APPIAH FOR THE INTERESTED PARTY APPELLANT

HUMPHREY MODZAKA FOR THE APPELLANT/RESPONDENT

[2016]DLSC2823
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>KUMASI TRADITIONAL
COUNCIL<o:p></o:p>EX-PARTE; EBUSUAPANIN
AFRAM OWUSU AND ANOTHER<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. J4/56/2016&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:
28TH JULY, 2016<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;&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>KWAKU
YEBOAH APPIAH FOR THE INTERESTED PARTY APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HUMPHREY
MODZAKA FOR THE APPELLANT/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;
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DOTSE
JSC. (PRESIDING), YEBOAH JSC, GBADEGBE JSC, BAMFO (MRS) JSC, AND PWAMANG JSC.<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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JUDGEMENT<o:p></o:p>

</div>PWAMANG,
JSC.<o:p></o:p>The
facts giving rise to this interlocutory appeal are not in dispute. On 18th
May 2015 the High Court, Kumasi dismissed an application for Judicial Review file
by applicant/appellant/respondent/respondent, hereafter to be referred to as
“applicant”.&nbsp; Being dissatisfied, he
filed an appeal to the Court of Appeal. On 5th October, 2015
applicant was served with Form 6 that is the notice of transmission of the
record of appeal to the Court of Appeal. Applicant failed to file his written
submissions within 21 days as required by the rules. Nonetheless, on 18th
November, 2015 the Court of Appeal heard an application filed by applicant for
leave to amend his Notice of Appeal. The interested party/respondent/applicant/appellant,
hereafter to be referred to as “respondent”, did not oppose the application so
the Court of Appeal granted it and gave applicant up to 26th
November, 2015 to file the pursuant Amended Notice of Appeal. Thereafter
applicant filed his written submission on 15th December, 2015. <o:p></o:p>When
the respondent was served with the written submission he objected to it and
filed a motion in the Court of Appeal praying for it to be struck out on the
ground that it was filed after 21 days of the service of Form 6 on applicant. That
application was heard and dismissed by the Court of Appeal on 27th
January, 2016. The court of appeal in its ruling agreed with respondent that
the written submission was filed out of time but decided that it would
nevertheless exercise its discretion to waive the non-compliance and admit the
written submission. It is against that ruling of the Court of Appeal dated 27th
January, 2016 that this interlocutory appeal has been brought to this court.<o:p></o:p>It
is trite learning that an appeal is by way of rehearing, which means an
appellate court is required to peruse the whole record of appeal and form its
own opinion as to whether the findings and conclusions of the court below were
justified having regard to the evidence and the applicable law.<o:p></o:p>At
page 12 of his statement of case filed in this court, the respondent stated as
follows;<o:p></o:p>“Even though the court of
appeal exercised its discretion, the discretion, with the utmost respect was
wrongly exercised. The exercise was not in accordance with law. In exercising
its discretion in favour of the applicant, the court of appeal ought to have
had consideration for rule 20 (1) and (2) of C.I.19. The decision of the Court of
Appeal to rather reward a party who has flagrantly violated express provisions
without any apology whatsoever.”<o:p></o:p>Respondent’s
lawyer based his arguments on Sub-Rule 2 of Rule 20 as it was stated in the
Court of Appeal Rules, 1997 (C.I.19). But Rule 20 (1) and (2) have been amended
by the Court of Appeal (Amendment) Rules 1999, (C.I. 25) which removed the
automatic striking out of appeals upon failure to file written submission
within 21 days. C.I.25 gives the court a discretion, if the appellant fails to
file written submission within 21 days, whether to strike out or not.<o:p></o:p>Therefore
this charge against the exercise of discretion by the Court of Appeal is
misconceived. The court exercised its discretion on the basis of evidence that
was placed before it. Applicant’s lawyer in arguing against the motion to
strike out at the Court of Appeal applied to the court to exercise its
discretion and waive the non-compliance by reason of matters deposed to at
Paragraphs 7 of his affidavit in opposition to the motion. <o:p></o:p>Paragraph
7 is as follows;<o:p></o:p>“7. Consequently, as I am
now advised and verily belief , the interested Party’s motion for striking out
my written submission is based on the sole ground that it was filed one day
late (after a short period</main>