IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
ASIEDU JSC
GAEWU JSC
KWOFIE JSC
DZAMEFE JSC
CIVIL APPEAL NO. J4/68/2024
18TH MARCH, 2026
PAUL OPOKU ……….. PLAINTIFF/RESPONDENT/RESPONDENT
(SUBSTITUTED BY CHRISTIAN BOBIE ANSAH)
VRS
JAMES TWUM (DECEASED) ……….. DEFENDANT/APPELLANT/APPELLANT
(SUBSTITUTED BY SUSSAN OSEI)
JUDGMENT
ASIEDU, JSC:
[1.0]. INTRODUCTION
My lords, this is an appeal against the ruling of the Court of Appeal dated the 20th December, 2023, in which the Court of Appeal refused an application by the Defendant/Appellant/Appellant (hereinafter referred to as the Appellant) praying the Court to restore an appeal which had been dismissed by the Court on the 18th February, 2015. The Plaintiff/Respondent/Respondent shall hereinafter be referred to as the Respondent.
[2.0]. FACTS
My lords, the undisputed facts on record are that, by an amended writ of summons and accompanying statement of claim, the Respondent claimed against the Appellant before the High Court, Kumasi, reliefs in the following terms:
a. All that cocoa and food crops farm at a place commonly known and called Anyinasuona near Ahenkro/Ashanti on Ahenkro/Ashanti stool land and bounded with the farms and or parcels of land of Kweku Owusu, Opanin Boamah and Opanin Bannor.
b. All that cocoa farm and farmstead situate at a place commonly known and called NAME NAHO near Ahenkro/Ashanti on Ahenkro/Ashanti stool land and bounded with the farms and or parcels of land of Opanin Kwasi Yentumi, Opanin Kwame Agyen and Madam Akosua Pokuaah.
c. House No. A.O. 96 situate at Ahenkro/Ashanti on Ahenkro stool land.
d. All that farmstead situate at a place commonly known and called ANITOA and also called TAAKWA DWOSO near Ahenkro/Ashanti on Ahenkro/Ashanti stool land and bounded with the farms and or parcels of land of Kwadwo Donkor, Kwasi Wiredu, Kwasi Yentumi, and Akua Amponsah are all the family properties of the Plaintiff’s matrilineal family and as such the late Opanin Kwadwo Twum (deceased) had no testamentary capacity over them. That any devices and or bequests purportedly made by the late Opanin Kwadwo Twum in his last Will and testament dated the 12th day of February, 1988 to any person or persons in respect of those properties are null and void and of no effect whatsoever.
e. That the late Kwadwo Twum had no testamentary capacity over any of the properties above referred to, the same being family properties of the Plaintiff’s matrilineal family.
f. That any devices and or bequests the late Kwadwo Twum purported to make in respect of those properties in his said Will and Testament are null and void and of no effect whatsoever.
g. Damages for trespass
h. Recovery of possession
i. An order of perpetual injunction restraining the defendants, their agents, workers, labourers, successors according to native customary law and assigns, and any other person or persons claiming title through the defendants from entering upon the disputed parcels of land and having anything to do therewith.
[2.1]. By a judgment delivered on the 26th October, 2010 after full trial, the learned trial Judge granted the reliefs sought by the Respondent against the Appellant.
Dissatisfied with the judgment of the trial High Court, the Appellant, by a Notice of Appeal filed on the 7th December, 2010, lodged an appeal to the Court of Appeal, praying the Court of Appeal to set aside the judgment and all consequential orders of the trial High Court.
[2.2]. At the Court of Appeal, the parties filed their written submissions and a date was fixed for the hearing of the appeal. On the day of the hearing, 18th February, 2015, however, the Appellant and his Counsel were absent in Court. The Court of Appeal, therefore, exercised their power, under Rule 23(1) of the Court of Appeal Rules, 1997 (C.I 19), and dismissed the appeal for want of prosecution.
Aggrieved by the order of the Court of Appeal, dismissing the Appellant’s appeal, the Appellant launched a further appeal to the Supreme Court, seeking a reversal of the Court of Appeal’s decision which dismissed the Appellant’s appeal before the Court of Appeal, and for the appeal to be restored.
On the 15th October, 2019, the Supreme Court struck out the Appellant’s appeal as withdrawn. Subsequent to the withdrawal of the Appellant’s appeal in the Supreme Court, the Appellant, on 4th December, 2024, filed a motion in the Court of Appeal, praying the Court of Appeal for an order to restore the Appellant’s appeal which had been dismissed by the Court of Appeal on the 18th February, 2015.
[3.0]. RULING OF THE COURT OF APPEAL
By a ruling of the Court of Appeal dated the 20th December, 2023, the learned Justices of the Court of Appeal refused the Appellant’s prayer for an order to restore the appeal. The Court of Appeal reasoned that the Appellant did not make out a case in the circumstances, to merit the exercise of the Court’s discretion in favour of the Appellant.
At page 70 of the record of appeal (ROA), the learned Justices of the Court of Appeal concluded as follows:
“In the present case, it is our opinion that there has been an inordinate delay on the part of the Defendants/Appellants [Appellant herein], having regard to the fact that the Appeal was dismissed on 18/02/2015. We find ourselves unable to exercise our discretion in favour of the Defendants/Appellants/Applicants [Appellant herein].”
It is against the aforementioned ruling of the Court of Appeal that the Appellant has lodged the instant appeal on the grounds identified in paragraph 4 below.
[4.0]. NOTICE OF APPEAL
By a notice of appeal filed on the 9th January, 2024, the Appellant formulated the following grounds of appeal:
1. The Court of Appeal’s refusal to exercise its discretionary jurisdiction in favour of the Appellant pursuant to Rule 23 r 2 of C.I. 19 has caused miscarriage of justice to the Appellant.
2. Additional grounds of Appeal may be filed after the receipt of the record of proceedings.
My lords, there is no indication on record that the Appellant filed additional grounds of appeal. Accordingly, the appeal would be determined on ground (1) of the grounds of appeal.
[5.0]. ARGUMENT OF APPELLANT
In the statement of case filed for and on behalf of the Appellant on the 25th July, 2024, and a reply to the Respondent’s statement of case, which reply was filed on the 5th September, 2024, Counsel for the Appellant has prayed this Honourable Court to order a relistment of the Appellant’s appeal onto the cause list of the Court of Appeal. Counsel has submitted that even though there has been a delay in the prosecution of the appeal, the delay was partly caused by the Appellant’s former lawyer in the approach adopted in managing or handling the appeal. Counsel, therefore, prays that the brunt of the former solicitor’s tardy approach in the matter, should not be visited on the client (Appellant herein).
At page 7 of the Appellant’s statement of case, Counsel submitted as follows:
“My Lords, with the greatest and full respect, I must admit that there is a measure of delay in the appeal and therefore the observations by their Lordships at the Court of Appeal cannot be denied or challenged. However, I respectfully pray that since the delay was not occasioned by the Appellant but through the procedures adopted by the former counsel for the Appellant, coupled with the fact that the original Appellant i.e. Osei Kwadwo died and had to be substituted by James Twum, who also died and was substituted by the present Appellant, it is our humble prayer that in the paramount interest of justice, these circumstances should not be visited on the Appellant.”
Counsel further argued that contrary to the claim by the Respondent, there is no evidence on record that third-party rights have arisen in respect of the properties in dispute in the suit. Counsel, therefore, prays the Court to reverse the ruling of the Court of Appeal, and restore the Appellant’s appeal.
[6.0]. ARGUMENT OF RESPONDENT
In his statement of case filed on the 22nd of August, 2024, Counsel for the Respondent has argued that the Court of Appeal’s decision to dismiss the Appellant’s application for restoration of the Appellant’s appeal, was a proper exercise of discretion by the Court of Appeal. That the discretion to dismiss the Appellant’s application was fairly exercised, and did not occasion a miscarriage of justice to the Appellant.
That the Appellant has not made out any good reasons or raised any plausible legal basis for the appeal to be relisted, having also failed to justify the inordinate delay which attended the Appellant’s prosecution of the appeal.
Counsel argued further that the judgment of the trial High Court from which the instant appeal emanates, has long been executed, and that any subsequent order on appeal to disturb the judgment of the trial High Court, would cause grave inconvenience and injustice to the Respondent and third-party rights which have accrued in respect of the properties, the subject matter of the dispute between the parties herein.
At page 12 of the statement of case, Counsel argued as follows:
“Again, allowing the instant appeal will be prejudicial to the rights of the Respondent. With no pending appeal against the High Court’s judgment, the Respondent served Entry of Judgement on the original Appellants and subsequently sought and obtained LEAVE for a Writ of Possession and lawfully executed the judgment which is the subject of the instant appeal on 8th December, 2021. The Respondent respectfully submits that the High Court judgement having been lawfully executed, allowing the appeal to be restored after such a long delay could result in significant prejudice to the Respondent, who has already taken possession of the subject properties after due execution of the judgement under the impression that the matter was conclusively resolved and when third party interest has intruded.”
Accordingly, Counsel prays the Court to dismiss the instant appeal.
[7.0]. DETERMINATION OF THE APPEAL
My lords, Rule 23 of the Court of Appeal Rules, 1997 (C.I. 19), provides:
“23. Non-appearance of appellant
(1) Where the appellant fails to appear when his appeal is called for hearing and he has not taken action under rule 22, the appeal may be struck out or dismissed with or without costs.
(2) When an appeal has been struck out or dismissed owing to the non-appearance of the appellant the Court may, direct the appeal to be re-entered for hearing on such terms as to costs or otherwise as it may think just.” (Emphasis).
My lords, subrule (2) of Rule 23 above, vests the Court with discretionary power, after the Court has dismissed an appeal under subrule (1), to order a restoration or relistment of the appeal. Being a discretionary power, therefore, it ought to be exercised by the Court judicially, reasonably and not arbitrarily, and an appellate court such as this Honourable Court, ought to exercise great caution in interfering with the exercise of that discretion.
Indeed, the Appellant herein admits that there has been a delay in the prosecution of the appeal. The Appellant has been tardy in their approach to prosecuting the appeal, there having been a delay of almost 14 years. It is my respectful view that, the tardiness in the management of the case cannot be blamed on the lawyer for the appellant alone. The appellant is as guilty as his lawyer in their approach to the prosecution of their appeal, and Counsel has not been able to show that their Lordships at the Court of Appeal exercised their discretion improperly. Since this appeal is against the exercise of discretion of the Court of Appeal, it should not be looked upon with favour in the circumstances.
A second appellate court as this Honourable Court in the exercise of its appellate jurisdiction over a first appellate court, ought to be slow to interfere with the exercise of discretion by the first appellate court, save in exceptional circumstances as expressed by the courts.
In BALLMOOS v MENSAH [1984-86] 1 GLR 724 at 725, the Court of Appeal stated the position of the law as follows:
“An appeal against the exercise of the court’s discretion might succeed on the ground that the discretion was exercised on wrong or inadequate materials if it could be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account; but the appeal was not from the discretion of the court to the discretion of the appellate tribunal.”
In SAPPOR v WIGATAP [2007] SCGLR 676, the Supreme Court held that:
“An appellate court would only interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” See also CRENTSIL v CRENTSIL [1962] 2 GLR 171.
[7.1]. It is noteworthy that, the Appellant was not candid with the Court of Appeal when he deposed at paragraph 12 of their affidavit in support of the motion for leave to re-enter or restore the appeal, that the estate in question has not been shared or distributed.
Exhibit ‘A’ at page 62 of the ROA, “B” at page 63, “C” at page 65 and exhibit “CB6” at page 66 show that the Respondent herein has long taken possession of the estate which was the subject of the judgment of the High Court.
[7.2]. Competence of Appellant’s Notice of Appeal to the Supreme Court
My lords, the Notice of Appeal filed on the 9th January, 2024 before this Court is incompetent. It violates Article 131(2) of the Constitution,1992.
Article 131 of the Constitution provides as follows:
“131. (1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court-
(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or
(b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.
(2) Notwithstanding clause (1) of this article, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.” (Emphasis).
My lords, considering that the appeal from the ruling of the Court of Appeal, refusing the application to restore the appeal which was dismissed by the Court of Appeal is one circumscribed by Article 131 (2) of the Constitution, the Appellant required special leave of the Supreme Court in order to properly file his Notice of Appeal to the Supreme Court. Thus, the Appellant does not have an automatic right of appeal to the Supreme Court in the instant matter for the simple reason that the matter in respect of which the appeal has been filed (that is the ruling of the Court of Appeal refusing to restore the appeal to the cause list of the Court of Appeal) did not emanate from the High Court in the exercise of the original jurisdiction of the High Court as required by Article 131(1)(a) of the Constitution, 1992. See also section 4(2) of the Courts Act, 1993 (Act 459).
The Notice of Appeal filed by the Appellant on the 9th January, 2024 has no indication that the special leave of this Court was obtained as required by Article 131(2) of the Constitution and section 4(2) of the Courts Act. The said Notice of Appeal was therefore, filed in breach of the Constitution and the Courts Act, and it is, therefore, a nullity. See PERSEUS MINING GHANA LTD VRS COMMISSIONER GENERAL OF GRA, SUIT NO. J8/34/2024 and J8/112/2024; COKER v. NDK FINANCIAL SERVICES LTD [2017-2020] 1 SCGLR 766; GENERAL LEGAL COUNCIL & ANOTHER v KODUAH [2017-2020] 1 SCGLR 1065.
[8.0]. CONCLUSION
My lords, for all the reasons stated above, this Court holds that not only is the instant appeal bereft of merit but the appeal is totally incompetent. The appeal is therefore dismissed. The ruling of the Court of Appeal delivered on the 20th December, 2023 is hereby affirmed.
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
HANSEN KWADWO KODUAH ESQ. FOR THE DEFENDANT/APPELLANT/
APPELLANT.
K. A. ASANTE-KROBEA ESQ. FOR THE PLAINTIFF/RESPONDENT/
RESPONDENT WITH DR. JOSEPH KWAKU ASAMOAH ESQ.
