ACCRA HEARTS OF OAK SPORTING CLUB LTD vs. QUARTEY [2001-2002] 2 GLR 503

ACCRA HEARTS OF OAK SPORTING CLUB LTD v QUARTEY

[2001-2002] 2 GLR 503

Division: COURT OF APPEAL, ACCRA

Date: 5 APRIL 2001

Before: BENIN, ADINYIRA AND AMONOO-MONNEY JJA

Practice and procedure—Appeal—Statement of case—Failure to file—Effect of certification by registrar—Parties to be heard before decision by court whether to strike out appeal for non-compliance—Failure by registrar to serve certificate on parties and counsel—Whether appeal still pending before Court of Appeal—Court of Appeal Rules, 1997(CI 19), r 20(1) and (2)—Court of Appeal (Amendment) Rules, 1999 (CI 25), r (b).

Practice and procedure—Appeal—Extension of time—Application for extension of time to file statement of case—Prerequisites for grant—Duty of counsel—Statement of case revealing matters of interest to football fans and raising serious legal issues for determination—Whether application to be granted—CI 19, r 20–CI 25, r(b).

At the hearing of an appeal by the applicants-appellants on 28 February 2001, the Court of Appeal refused to admit their statement of case lodged on 19 February 2001 on the grounds that it was filed out of time. The court awarded costs against the applicants for the delay and granted them time to make a formal application for extension of time within which to file their statement of case. In the affidavit supporting their application the appellants deposed, inter alia, that (a) when they procured a copy of the record of proceedings in order to file their appeal, they discovered that it was incomplete, and they therefore notified both the registrars of

[p.504] of [2001-2002] 2 GLR 503 the High Court and Court of Appeal and sent the record back to the High Court registrar for the corrections to be made; and (b) their statement of case contained arguable points of law which had to be determined. The respondent opposed the application on the grounds, inter alia, that (i) since the registrar had issued Form 11A to the applicants which in effect struck out the appeal for non-compliance under rule 20(1) and (2) of the Court of Appeal Rules, 1997(CI 19), there was no appeal pending before the court to determine, and therefore the application was frivolous, unmeritorious and an abuse of the legal process; (ii) the omissions found in the record of proceedings were corrected the same day they were detected; and (iii) whatever the questions of law might be, the applicants should have raised the grounds in the body of the application and not in the statement of case which had not been admitted to the record. The court found that since the applicants had paid the costs awarded against them at the court’s sitting on 28 February 2001, there was nothing on record to impute bad faith to them. However, their explanation for the cause of the delay in submitting the statement of case though found to be counsel’s default was unacceptable, but,

Held, granting the application:

(1) under the old rule 20(1) and (2) of the Court of Appeal Rules, 1997 (CI 19), where the appellant did not comply with the rules, his appeal was deemed to have been struck out; and neither were the parties entitled to be heard, nor the court required to be notified. The duty of the registrar was only to notify the parties of the fact of the appeal being struck out. However, under the new rule 20(1) and (2) of CI 19 as substituted by the Court of Appeal (Amendment) Rules, 1999(CI 25), r (b) the certification by the registrar that the appellant had failed to file his written submission in accordance with the rules neither terminated the appeal, nor raised a presumption that the appeal was taken off the cause list. The registrar had to certify the fact of the failure to the court which would take a decision whether or not to strike out the appeal for non-compliance. The court in such a case could not take any decision without giving the parties an opportunity to be heard. It was therefore obligatory for the registrar’s certificate to be served on the parties and their counsel, if any, for them to be heard on the application if they so desired. In the instant case, the applicants deposed that they were not served with the registrar’s certificate, Form 11A, and since that was not disputed, no step could have been taken by the registrar for the court to act on it. Accordingly, the appeal was still pending before the court.

(2) Where an appellant was invoking the court’s discretionary power to extend time for him to file his statement of case under rule 20 of CI 19 as amended by CI 25, the applicant must not only exhibit good faith, with valid reasons for the delay but also satisfy the court that the appeal raised serious legal questions which called for a determination by the court. The reasons or grounds for the appeal might be disclosed in an affidavit or in any document incorporated or annexed to it. However, it was the duty of counsel to refer to the points of law he was relying on, and not to merely say that the reasons were embodied in the document annexed to the affidavit. In the instant case, the appellant’s statement of case

[p.505] of [2001-2002] 2 GLR 503 revealed that besides other issues raised which though peculiar to the facts of the case, were nonetheless important issues likely to affect persons with interest in the football club involved, two key issues had come up for determination viz: (i) whether a court was justified in deciding a case on legal arguments only, when the facts of the case were in dispute; and (ii) whether in taking only legal argument, a court was justified in deciding factual issues as well without taking oral evidence.

Since the matters in the statement of case raised serious legal issues which could not be brushed aside lightly, in the absence of compelling reasons, the application would be granted on terms to take its normal course.

APPLICATION on notice by the applicants-appellants for an order extending time to file a written submission of their statement of case The facts are sufficiently stated in the ruling of Benin JA.

Ernest Thompson for the first defendant-applicant-appellant. Kwaku Bram-Larbi for the second-defendant-appellants.

Nutifafa Kuenyehia for the plaintiff-respondent-respondent.

Benin JA. This is an application on notice for an order extending time for the appellant-applicants to file a written submission of their case. Indeed, the statement was filed on 19 February 2001, but it was not admitted by this court at its sitting on 28 February 2001 because it was filed out of time. That day the court awarded costs of ¢300,000 against the applicants, apparently because they asked for time to bring the present application.

The grounds for this application are contained in the accompanying affidavit, and these may be summed up as follows: (1) When the solicitor for the applicants was served with the civil Form 6, the applicants procured a copy of the record of proceedings. It was there discovered that it was incomplete, so the registrars of the High Court and this court were duly notified. The record was therefore sent back to the High Court registrar to supply the omissions. (2) The statement of case was filed on 19 February 2001 and it contains arguable points of law and that the appeal has a reasonable chance of success.

The respondent opposed the application on grounds contained in an affidavit in opposition filed on 26 March 2001. These grounds are: (a) the application is frivolous, unmeritorious and an abuse of the legal process; (b) the registrar issued Form 11A, in the Schedule of the Court of Appeal (Amendment) Rules, 1999 (CI 25), the effect of which is that the appeal has been struck out so there is no appeal pending; (c) the omissions in the record were rectified the same day they were detected; and (d) that no reasonable explanation has been offered for the delay

[p.506] of [2001-2002] 2 GLR 503 even though the record has been with counsel since April 2000.

In a supplementary affidavit deposed to on 28 March 2001, counsel for the applicants stated that he was never served with the registrar’s certificate—Form 11A in the Schedule of CI 25. That he explained the cause of the delay in filing the written submission to this court at its sitting on 28 February 2001 and the court awarded the costs against them. And the court asked them to make a formal application which they have done by the present application. It is clear that this court, at the said sitting did not act on the registrar’s certificate so the appeal does not stand dismissed.

The first point to determine is the effect of the registrar’s certificate—Form 11A. This form was introduced by the Court of Appeal (Amendment) Rules, 1999 (CI 25). For its full force and effect, I propose to set out the contents of this form in extenso. It provides:

“CIVIL FORM 11A

IN THE COURT OF APPEAL CERTIFICATE AS TO NON-COMPLIANCE WITH FILING OF

APPELLANT(S) WRITTEN SUBMISSION

(RULE 20(2)

Between………………………………………………………………………………………………Appellant(s) And ……………………………………………………………………………………………………….Respondent(s) Pursuant to rule 20(2) of the Court of Appeal Rules, 1997 (CI 19), I certify that the appellant(s) in the above mentioned appeal has/have not complied with the requirements of rule 20(1) of C.I. 19. Dated at………………………………………………..the…………….day of……………………………………

…………………………………………

Registrar

[p.507] of [2001-2002] 2 GLR 503

To: The Court And to: The Appellant(s) or his/their Counsel The Respondent(s) or his/their Counsel.”

From the face of this form, it is clear it is based on rule 20(1) and (2) of the Court of Appeal Rules, 1997 (CI 19) as amended by CI 25. These subrules have these provisions:

“20. (1) An appellant shall within 21 days of being notified in Form 6 set out in Part I of the Schedule that the record is ready, or within such time as the Court may upon terms direct, file with the Registrar a written submission of his case based on the grounds of appeal set out in the notice of appeal and such other grounds of appeal as he may file.

(2) Where the appellant does not file the statement of his case in accordance with subrule (1), the Registrar shall certify the failure to the Court by a certificate as in Form 11A in Part I of the

Schedule and the Court may upon that order the appeal to be struck out.”

By rule 20(2) of CI 19 as amended, the certification by the registrar that the appellant has failed to file his written submission in accordance with the rules does not terminate the appeal; it does not even raise a presumption that the appeal is taken off the cause list. The registrar has to certify the fact of the failure to the court for the latter to take a decision whether or not to strike out the appeal for non-compliance. And the court cannot take any decision on the certificate without giving the parties the opportunity of being heard therein. Hence it is obligatory that the registrar’s certificate be served on the parties or their counsel, if any, or both for them to be heard on the application if they so desire. This, in brief, represents the interpretation to be placed on these subrules and Form 11A.

In view of this interpretation, it seems that the submission by counsel for the respondent was obviously made in the light of rule 20(1) and (2) of CI 19 before they were amended by CI 25. Under the old rules, where the appellant did not file his submission in accordance with the rules, the appeal was deemed to have been struck out, and the registrar’s duty was just to notify the parties about this fact. The parties were not entitled to be heard, so too was the court not required to be notified. But these provisions were radically altered by CI 25 whose relevant provisions I quoted earlier on.

Counsel for the applicants deposed in the supplementary affidavit that they were not served with the registrar’s certificate—Form 11A.

[p.508] of [2001-2002] 2 GLR 503

This assertion was not disputed. The position then was that no step could be taken by the court on it; and not until the court has acted on it, the appeal will still be pending. It is thus wrong to argue that there was no appeal pending following the issuance of the registrar’s certificate on 16 February 2001. So much for the technical arguments.

Let me now turn to the merits of the application before us. The applicants want this court to extend time for them to file their statement of case. They are invoking the court’s discretionary power exercisable under rule 20 of CI 19 as amended by CI 25. For that reason an applicant must exhibit good faith. He must also satisfy the court that there are reasonably valid reasons why he could not file the submission within the time allowed by the rules. He must also satisfy the court that the appeal raises serious legal questions which call for a determination by the court; this is not to say that the applicant must satisfy the court that he stands a reasonable chance of succeeding on appeal, since that will be a tempting invitation to delve into the merits of the appeal, something the court cannot and should not do in this sort of exercise. These reasons are by no means exhaustive; other cases may throw up different considerations.

I now consider the grounds set out above in relation to this application. First of all, the applicants paid the costs awarded against them by this court. There is nothing to show they are merely abusing the court’s process as deposed to by the respondent. In short there is nothing on the record from which bad faith could be imputed to the applicants.

Next, the reason for the delay which appears to be based on the omission from the record that was detected. What the evidence so far does not disclose is exactly when the omission/error was corrected by the High Court registrar, and after that when the corrected record was re-forwarded to the registrar of this court. Counsel for the respondent said the correction was done in one day; but when precisely was that one day? Be that as it may, it was the duty of the applicants who rely on it in support of their case to have disclosed the relevant date so as to enable the court make a meaningful determination as to whether they have been tardy from the time the record was re-transmitted to this court. In the absence of this, I am unable to accept this reason proffered by the applicants as the cause of the delay in filing a written submission of their case. But the evidence is clear that it was counsel’s default that has put the applicants into this risk of losing out in this appeal without being heard on merits. Should counsel’s laxity be allowed to defeat his client’s case if there is a way of salvaging it? I think not. I say so mindful of the fact that there must be an end to

[p.509] of [2001-2002] 2 GLR 503 litigation. In such a situation counsel could be personally sanctioned and the party allowed to contest the case on its merits if truly there is some merit in it. That logically takes us to a consideration of the final ground canvassed in support of this application.

Counsel for the applicants argued that the appeal raises serious questions of law for this court’s consideration. Counsel for the respondent submitted that whatever the questions of law may be, they should be raised in the body of the application and not in the statement of case which has not been admitted on the record. With all due respect to learned counsel, I cannot accede to this argument. Reasons or grounds for an application may be disclosed in an affidavit or in any document incorporated therein or annexed thereto. Having said this, I believe it is the duty of counsel, in his submissions, to refer to the points of law he is relying on; it is not satisfactory to say they are embodied in the document annexed to the affidavit. However, I still have to take a look at the statement of case on which he relies for his argument.

Reading through the statement, one point which stands out is whether a court is justified in deciding a case upon legal argument only when the facts are disputed by a party. Secondly, whether in taking only legal argument, a court is justified in deciding upon the factual issues as well, without taking oral evidence. These legal points are of general importance and interest which I believe should be considered by this court. Besides, there are other legal points raised, which, though are peculiar to the facts of the case, are nonetheless important since the outcome is likely to have effect on many persons who have an interest in the football club involved here. Some of these issues are the capacity of the plaintiff in the light of the club’s constitution; the status of the club as a limited liability company or otherwise. These are not matters which may be brushed aside lightly unless there are more compelling reasons that counsel’s default in filing a submission on time. For these reasons, I will allow the application on these terms: that the applicants pay costs of ¢500,000 to the respondent within seven days. If they satisfy this condition, the applicants are to file their submission within seven (7) days of paying the costs. Thereafter the appeal is to take its normal course.

Adinyira JA. I agree.

Amonoo-Monney JA. I also agree. Application for leave granted. J N N O