RAOUL ABOU-CHEDID vs. GOLD COAST SECURITIES LIMITED [2017]DLCA5014

Date	2017-02-14
Suit No.	CIVIL APPEAL: H3/190/2017
Citation No.	[2017]DLCA5014

M.M AGYEMANG (MRS.) JA

[2017]DLCA5014
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													<main id="main" class="content" style="min-height: 60rem" >RAOUL ABOU-CHEDID<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>GOLD COAST SECURITIES LIMITED<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL (CIVIL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL: H3/190/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;14TH
FEBRUARY, 2017<o:p></o:p>

</div>CORAM:<o:p></o:p>M.M AGYEMANG
(MRS.) JA – SINGLE JUDGE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>On the 11th of January 2017, the
defendant/appellant/applicant (hereafter referred to as the applicant) filed a
notice of motion for leave to amend a notice of appeal filed on 12th July 2016
at the Registry of the Appeal Court.<o:p></o:p>The application was supported by an eight-paragraph
affidavit sworn to by one Audrey Twum, a partner of Dr. Seth Twum and
Associates. She deposed to the following matters:<o:p></o:p>That this court gave judgment in the instant matter
against the applicant and that the applicant lodged an appeal against that
decision by filing a notice of appeal to the Supreme Court on the 12th of July
2016. The said notice of appeal she averred, had inadvertently been signed in
the name of Dr. Seth Twum and Associates as solicitor, instead of Dr. Seth
Twum.<o:p></o:p>The application was thus brought to effect a
correction of the name appearing under the solicitor’s signature.<o:p></o:p>The plaintiff/respondent/respondent (the
respondent) in a thirty-one paragraph affidavit opposed the instant application
upon the following grounds: first, that there was no appeal before the Supreme
Court as the applicant had failed as an appellant to satisfy the conditions of
appeal in accordance with Rule 14 of CI 16; second, that there was yet
undetermined, the applicant’s application before the Supreme Court for
extension of time within which to appeal - that the filing of a multiplicity of
applications amount to an abuse of the court’s process; third,&nbsp; that this court has in Nii Lante Mills v.
Mildred Ama Woode H3/563/2015 dated 20th October 2015 (unreported), held that a
legal process such as a notice of appeal must be signed by a solicitor: a
natural person licensed to practise law, and not a firm of lawyers such as the
applicant had done in its notice of appeal.<o:p></o:p>At the hearing of the motion, learned counsel for
the respondent raised an issue regarding whether the court can permit an
amendment under CI 19 a subsidiary legislation, to cure a defect under
substantive law: the Legal Profession Act, Act 32.&nbsp; The court ordered the parties to address it
on the jurisdiction of the Court of Appeal to deal with the instant
application.<o:p></o:p>I have read the submissions of both counsel and I
am persuaded that this court lacks jurisdiction to entertain the instant
application. I say so for the reasons following:<o:p></o:p>First of all, I must say that although it was
deposed in the affidavit in opposition that there was pending at the Supreme
Court, the applicant’s application for extension of time to appeal, no process,
confirmatory in nature, was attached to the affidavit. The production of
evidence of an undetermined application for extension of time to bring the
appeal, would have demolished the foundation of the instant application as the
appellant would have had no leg to stand on. This is because in the absence of
such enlargement of time by the Supreme Court, the appeal which would be out of
time, could not be lodged by the filing of a notice of appeal. As aforesaid, no
such evidence was proffered. &nbsp;<o:p></o:p>But assuming that the notice of appeal was properly
filed within time, the question of the jurisdiction of this court to grant or
refuse the instant application then arises.<o:p></o:p>The power of the Court of Appeal to entertain
interlocutory matters relating to appeals from its decision to the Supreme
Court is found not under Rule 31 of the Court of Appeal Rules CI 19 as
canvassed in this application, but in the Supreme Court Rules CI 16.<o:p></o:p>Rule 31 of CI 19 gives general powers to the Court
of Appeal in connection with matters before it. These include the power to make
orders necessary for determining the real questions in controversy, the
amendment of defects in the record, the granting of interim orders such as the
court below is authorized to make or grant, make necessary inquiries or
accounts, direct the court below to make inquiries into questions or accounts.
They are therefore concerned with appeals before the Court of Appeal.<o:p></o:p>Rule 6(1) of CI 16 reads: (I) “Any appeal to the Court in a civil cause or matter shall be
brought by notice of appeal in the Form I set out in Part I of the Schedule to
these Rules and shall be filed with the Registrar of the court below”. <o:p></o:p>When this is done (even before any other step is
taken, such as the fulfilment of the conditions of appeal), Rule 8(3) of CI 16
provides that the appeal before the Supreme Court is duly lodged. Thus the
point canvassed by learned counsel for the respondent in casu that the failure to fulfil conditions of appeal amounted to
no appeal, must be discountenanced.<o:p></o:p>When the record is settled, the conditions are
fulfilled and the record is transmitted to the Regist</main>