ALL STATE CONSTRUCTION COMPANY LIMITED vs. ALEX OPOKU AGYEMANG & 31 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)

KULENDI JSC

ADJEI-FRIMPONG JSC

ADJEI JSC

ACKAAH-BOAFO JSC

CIVIL APPEAL

NO. J4/50/2022

3RD JUNE, 2026

ALL STATE CONSTRUCTION COMPANY ………… PLAINTIFF/RESPONDENT

LIMITED RESPONDENT

VRS

1. ALEX OPOKU AGYEMANG

2. MISS COMFORT BERKO

3. MR. THOMAS AKWASI ACHEAMPONG

4. KWAME SEFA

5. KWABENA SARFO BUCKMAN DEFENDANT/APPELLANTS/

6. MR & MRS PAUL KOJO ARFUL APPELLANTS

7. AGNES ADDAI

8. AGNES AMOAKO A.K.A AGNES BRAM

9. JAMES OWUSU

10. MISS JOANA ERNESTINA AMONOO

11. NANA AMA AGYEMANG

12. BEATRICE BOATENG

13. AKWASI OFFIN

14. SOLOMON YEBOAH

15. NANA POKU ANTHONY NTI AMOAKO

16. DAVID OWUSU ACHEW

17. VIDA ADJEI

18. SAMUELLA OSEI

19. ASARE BEDAIKO

20. ATTA OWUSU ANSAH

21. PETER YEBOAH

22. MR. MRS. AKWABOAH

23. EFFA YEBOAH DEFENDANTS/APPELLANTS/

24. AMA FORWAAH APPELLANTS

25. MR. KOFI BROBBEY KYEI

26. YAW OWUSU

27. KWABENA ASARE

28. SEFA & JANE

29. MR. & MRS ADDAI

30. KWAME OWUSU

31. NANA AKUA

32. AMA POKUAAH

(A.K.A STELLA AMA POKUA-BONSU)

JUDGMENT

KULENDI JSC:

INTRODUCTION

This appeal arises from the decision of the Court of Appeal dated 25th November 2019, by which that Court declined jurisdiction to entertain the Appellants’ challenge to the High Court’s final orders made on 30th July, 2010.

In resolving this appeal, this Court is once again called upon to consider the distinction between a final judgment and an interlocutory decision, a question that has repeatedly engaged the courts and one that remains of considerable importance to the exercise of appellate jurisdiction.

THE PLAINTIFF/RESPONDENT’S CASE

The Respondent, All State Construction Company Limited, commenced two separate actions in the High Court, Kumasi, against the Appellants. The first action, Suit No. C1/228/09, was commenced on 28th April, 2009 against Antie Cecilia and Nineteen (19) Others. The second action, Suit No. C1/226/09, was commenced on 27th April, 2009 against Alex Opoku Agyeman and Thirty-One (31) Others.

The Respondent’s case was that it had entered into a Memorandum of Understanding with the Kumasi Metropolitan Assembly for the construction, operation and management of the Kejetia Shopping Mall Complex under a forty-year Build, Operate and Transfer (BOT) arrangement. Under that arrangement, it acquired the contractual and leasehold rights to construct, manage and commercially exploit the shopping complex throughout the concession period, after which the development would revert to the Kumasi Metropolitan Assembly.

According to the Respondent, during construction, traders expressed interest in occupying shops within the completed complex. Prospective occupants were informed that they would occupy the shops as tenants and were required to pay goodwill sums to secure the allocation of specific shops. Upon taking possession, they would thereafter become liable to pay monthly rent. The Respondent maintained that the goodwill payments neither constituted purchase monies nor conferred any legal or equitable interest in the shops.

The Respondent further averred that, after possession had been granted, it prepared formal tenancy agreements for execution by the Appellants. The Appellants refused to execute those agreements and also refused to pay rent despite repeated demands. The Respondent contended that such refusal constituted a breach of the terms upon which possession had been granted.

Accordingly, the Respondent sought the following reliefs against the Appellants in both suits:

A Declaration that in terms of the Memorandum of Understanding duly executed between the Plaintiff and the Kumasi Metropolitan Assembly(KMA) dated the 25th day of September, 2003 and 20th day of September, 2003 regarding the construction of the Multi Shopping Mall Complex per Kumasi Metropolitan Assembly reference No. ODU/SEC.11/03/9/1 and building permit No. 428/05 covering ALL that parcel of land more particularly measuring approximately 480ft North-West, 390ft North-South, 405ft North-East and 290ft South-West respectively, more particularly located at Kejetia Lorry Park Opposite the Kumasi Zoo, both the legal and equitable interest/title are vested in the Plaintiff with the reversionary interest vested in the Kumasi Metropolitan Assembly (KMA).

A Declaration that ALL the defendants are potential tenants of the Plaintiff who were expressly put into physical possession and or occupation of specific rooms within the said Multi Shopping Mall Complex of the Plaintiff.

The recovery of accumulated rent arrears of GH$40.00 from each defendant per month per one store from 1st of January, 2005 to 31st December, 2008 and interest thereon.

THE DEFENDANTS/APPELLANTS’ CASE:

The Appellants resisted both actions and denied that they occupied the shops as tenants.

Their case was that, although they did not dispute the existence of the BOT arrangement between the Respondent and the Kumasi Metropolitan Assembly, the Respondent encountered financial difficulties during construction and consequently sought to raise capital directly from the traders.

According to the Appellants, prospective occupants were invited to make substantial lump-sum payments upon the representation that such payments would entitle them to ownership and occupation of specified shops throughout the forty-year concession period. They accepted that offer, paid the agreed sums and were placed in possession of their respective shops pursuant to that arrangement. They maintained that the payments constituted consideration for the acquisition of proprietary interests in the shops and not goodwill or advance rent.

The Appellants denied that they had ever agreed to occupy the premises as tenants or to pay periodic rent. They contended that the Respondent’s subsequent attempt to require them to execute tenancy agreements and pay rent amounted to a unilateral departure from the parties’ original agreement.

The Appellants further relied upon the conduct and representations of one Elvis Owusu, popularly known as “Oga”. They maintained that he acted throughout as the Respondent’s representative in dealing with prospective traders, negotiated the transactions, collected the purchase monies, allocated the shops and represented that payment of the agreed sums would secure ownership of the shops for the duration of the BOT concession. Having accepted the benefits of those transactions, the Respondent, according to the Appellants, could not subsequently deny his authority.

Accordingly, the Appellants denied liability for rent, asserted proprietary interests in their respective shops and prayed that the Respondent’s claims be dismissed.

PROCEEDINGS BEFORE THE HIGH COURT:

Given that both actions arose from the same transaction, involved substantially identical facts and legal issues, and sought the same reliefs, the learned trial Judge ordered the consolidation of Suit Nos. C1/228/09 and C1/226/09 for hearing and determination.

At the trial, both parties adduced oral and documentary evidence, including the Memorandum of Understanding between the Respondent and the Kumasi Metropolitan Assembly, receipts evidencing the payments made by the Appellants, correspondence exchanged between the parties, and documents relating to the allocation of the disputed shops.

Since the question whether the judgment delivered on 30th April, 2010 or 30th July, 2010, constituted a final judgment necessarily depends upon the scope of the issues submitted to the High Court for determination, it is convenient to set out, verbatim, the issues settled for trial;

Whether or not the defendants are tenants of the Plaintiff?

Whether or not the defendants owe rent arrears from 2005 until commencement of this suit?

Whether or not Elvis Owusu alias Oga had the mandate of the Plaintiff to negotiate with the defendants to permanently transfer its (Plaintiffs) interest in the property to the Defendants?

Whether or not the Plaintiff is entitled to any of the reliefs being claimed and or at all?

Following the trial, the learned Judge, by his judgment delivered on 30th April, 2010, resolved each of those substantive issues in favour of the Respondent.

The Court held that the Respondent retained the legal and equitable interest in the shopping complex throughout the subsistence of the BOT arrangement; that the Appellant had failed to establish any agreement for the sale of the shops; that Elvis Owusu lacked authority to alienate proprietary interests on behalf of the Respondent; and that the parties stood in the legal relationship of landlord and tenant.

Accordingly, judgment was entered for the Respondent on the principal claims.

Having determined the parties’ respective legal rights and liabilities, however, the learned trial Judge adopted a different course in relation to the Respondent’s claim for rent arrears. Although the Court held that the Appellants were liable to pay rent, it declined to adopt the monthly rent of Forty cedis (₵40.00) claimed by the Respondent, describing the proposed figure as “arbitrary” and unsupported by the evidence.

Instead, the learned Judge directed that the appropriate Rent Officer determine the proper statutory rent payable in respect of each shop, after which the assessment was to be returned to the Court.

Pursuant to the Court’s direction, the Rent Officer assessed the rent payable in respect of the disputed shops and, on 25th May 2010, filed his assessment before the High Court.

Subsequently, on 12th July 2010, the Rent Officer, Mr. Michael Cobbina, attended court and was cross-examined on his assessment. Upon the conclusion of his testimony, the learned trial Judge directed each party to call not more than three witnesses to offer testimony confined solely to the issue of the appropriate rent payable. The Respondent called two additional witnesses and elected not to call a third, whilst the Appellants called three witnesses

30th July, 2010 the High Court held as follows:

“On 30/4/10, the Court delivered judgment in respect of these cases Unfortunately, the Court did not have the further and better particulars needed to fix rents for the defendants.

The rent Officer was tasked to assess the rent exigible and present a report. He did present his report (Exhibit CE 1), The plaintiff called two witnesses in the exercise.

The defendants called three witnesses to assist the court in its task. The witnesses tendered exhibits which also the court has considered.

Counsel for parties were given the option of filing addresses but none did.

…

The Court decided to double the figure suggested by the rent officer and hälved the rent paid by some of the current tenants in the disputed property.

The figure arrived at is GH$50.00. The defendants shall pay rent of GH$50.00 per store effective the date each was put in effective possession of his or her store.

The rent fixed is subject to reasonable review at reasonable intervals and in accordance with the Rent Act.”

It is this two-stage approach adopted by the learned trial Judge, namely, the determination of the parties’ substantive rights on 30th April 2010, followed by the subsequent assessment and adoption of the rent on 30th July 2010, that constitutes the singular procedural nuance which has actuated the present appeal.

Specifically, the parties disagree as to whether the judgment of 30th April 2010 constituted the final decision of the High Court, or whether finality was deferred until the Court adopted the Rent Officer’s assessment on 30th July 2010. The resolution of that question lies at the very heart of the jurisdictional issue now before this Court.

THE APPEAL TO THE COURT OF APPEAL:

Dissatisfied with the judgment of the High Court, the Appellants lodged a Notice of Appeal against the decision of the Trial High Court dated 30th July, 2010 on 31st August 2010; challenging the trial Judge’s findings on both fact and law. Similarly, the Respondent, on the 29th of September, 2010 filed a Notice of Cross Appeal against the 30th July, 2010 decision of the Trial Court, however this appeal was withdrawn on the 28th, June, 2013.

In substance, they contended that the learned trial Judge erred in holding that the relationship between the parties was one of landlord and tenant, in rejecting their claim that they had acquired proprietary interests in the disputed shops, in his treatment of the evidence concerning Elvis Owusu’s agency and authority, and in failing to give effect to the representations upon which they claimed to have acted.

Before the Court of Appeal could embark upon a consideration of the substantive grounds of appeal, it was confronted with a preliminary objection to the competency of the appeal, raised by the Respondent in its Statement of Case filed on 8th February 2016. By that objection, the Respondent contended that the Court lacked jurisdiction to interrogate the merits of the appeal as same had been instituted outside the time prescribed by the Court of Appeal Rules and was therefore incompetent.

In resolving this query, the Court of Appeal rightly inferred that the jurisdictional question depended upon whether the judgment delivered on 30th April, 2010 constituted the final judgment of the High Court, or whether finality arose only upon the subsequent orders on the application rent which was delivered on 30th July, 2010.

The Court of Appeal by a judgment dated 25th November, 2019, resolved that question against the Appellants. It held that the judgment delivered on 30th April, 2010 finally determined the substantive rights of the parties. In its view, the learned trial Judge had conclusively determined that the Appellants occupied the shops as tenants, had rejected their claim to proprietary interests, and had thereby disposed of the real controversy between the parties.

The Court further held that the subsequent proceedings relating to the assessment of rent did not reopen or qualify those findings. Rather, they were directed solely at ascertaining the quantum of rent payable in consequence of the rights already declared. The subsequent proceedings, on the determination of the applicable rent therefore constituted no more than the implementation of the judgment previously pronounced.

On that footing, the Court concluded that time for appealing began to run on 30th April, 2010 and expired three months thereafter. Since the Appellants’ Notice of Appeal was filed only on 31st August, 2010, the Court held that the appeal had been commenced out of time and was consequently incompetent. It accordingly dismissed the appeal as incompetent. Having reached that conclusion, the Court also declined to entertain the Respondent’s cross-appeal.

GROUNDS OF APPEAL:

Aggrieved by the decision of the Court of Appeal, lodged an Appeal in the registry of this Court by the filing of a Notice of Appeal dated 2nd December, 2019 on the following grounds:

The judgment is against the weight of evidence

The Honourable Court erred in holding that the appeal filed by the Defendants/Appellants/Appellants was an appeal against an interlocutory ruling rather than a final judgment.

The Honourable Court erred in holding that the computation of time to appeal against the judgment of the trial court commenced on 30th April, 2019 rather than 30th July, 2010 because the trial judge finally disposed of the suit on 30th July, 2010.

The Honourable Court erred in holding that the Defendants/Appellants/ Appellants were in error for not appealing the determination on the 30th April, 2010 because that was not a final judgment which could be appealed against as the court had not concluded its hearing and in any event if the 30th of April, 2010 proceeding were final the court would have no jurisdiction to hear the self-same case after the 30th of April, 2010 and this has occasioned a substantial miscarriage of justice to the Defendants/Appellants/Appellants.

The judgment of the Honourable Court unjustly enriches the Plaintiff/Respondent/Respondent who did not contribute towards the construction of the entire edifice but has nonetheless been proclaimed/adjudged owner thereof in a manner causing a substantial miscarriage of justice to the Defendants/Appellants/Appellants.

The Court of Appeal erred grievously in not adjudicating the well-founded appeal of the Defendants/Appellants/Appellants on the ground that it has no jurisdiction and the appeal is incompetent thereby occasioning a failure of justice to the Defendants/Appellants/Appellants.

The decision of the Honourable Court is erroneous because the appeal had been pending for years and had led to several interlocutory applications which had been duly considered by the court in exercise of its appellate jurisdiction and therefore the volte face that the court had no jurisdiction cannot be supported in law.

THE APPELLANTS’ SUBMISSIONS

Learned Counsel for the Appellants submits that the Court of Appeal erred in declining jurisdiction on the ground that the appeal had been commenced out of time.

Counsel argues that the High Court’s judgment of 30th April, 2010 was not a final judgment since it left unresolved one of the Respondent’s principal claims, namely, the assessment of the rent payable by the Appellants. According to counsel, by referring that issue to the Rent Officer, the learned trial Judge postponed the determination of a substantive issue in the action.

It is therefore contended that the proceedings attained finality only upon the High Court’s decision of the applicable rent on 30th July, 2010, with the result that the Notice of Appeal filed on 31st August, 2010 was brought within time.

Counsel further submits that the Court of Appeal adopted an unduly technical construction of the Court of Appeal Rules, thereby depriving the Appellants of their constitutional right of appeal. It is argued that, where there is genuine uncertainty as to when time begins to run, the Rules ought to be interpreted in a manner that preserves, rather than defeats, the right of appeal.

On the merits, counsel contends that the learned trial Judge failed properly to evaluate the evidence and wrongly rejected the Appellants’ case that the payments they made constituted consideration for the acquisition of proprietary interests in the shops rather than goodwill or advance rent. Counsel maintains that the Respondent financed the construction of the shopping complex with monies contributed by the traders and thereafter sought to alter the parties’ original agreement by treating them as tenants.

Counsel also challenges the trial Judge’s findings concerning Elvis Owusu, arguing that the Respondent had clothed him with apparent authority to negotiate with prospective occupants, receive payments, allocate shops and make representations regarding the nature of the parties’ rights.

Accordingly, it is submitted that the Respondent is bound by his representations. Finally, counsel contends that the Respondent cannot, consistent with equitable principles, retain the monies received from the Appellants, deny them the proprietary interests allegedly promised, and at the same time demand rent from them. In his opinion, such a course would amount to a judicial sanction of conduct calculated to unjustly enrich the Respondent.

THE RESPONDENT’S SUBMISSIONS:

Learned counsel for the Respondent supports the judgment of the Court of Appeal and submits that the appeal before that Court was incompetent, having been commenced outside the three (3) month period prescribed by the Court of Appeal Rules. The Respondent argues that the decisive question is not which judgment was delivered later in time, but whether the judgment delivered on 30th April, 2010 judgment finally determined the substantive rights of the parties, and not whether consequential proceedings occurred thereafter.

Counsel submits that the High Court conclusively determined every substantive issue before it by holding that the Respondent retained the legal and equitable interest in the shopping complex during the BOT concession, that the Appellants occupied the premises as tenants, that they had acquired no proprietary interest in the shops, and that Elvis Owusu lacked authority to transfer any such interest on the Respondent’s behalf. The subsequent reference to the Rent Officer, it is argued, served only to quantify the rent payable and did not affect the finality of the judgment already delivered.

Relying on the established distinction between final and interlocutory decisions, counsel submits that a judgment does not cease to be final merely because a consequential or auxiliary step remains to be undertaken. The Court of Appeal, the Respondent urged, correctly applied those principles in holding that time began to run on 30th April, 2010, rendering the Appellants’ Notice of Appeal filed on 31st August, 2010 out of time.

Although maintaining that the merits no longer arise once the jurisdictional issue is resolved, the Respondent submits that the learned trial Judge’s findings were fully supported by the evidence.

In particular, the Respondent contends that no documentary evidence established the alleged sale of the shops, nor was there evidence that Elvis Owusu possessed either actual or apparent authority to dispose of the Respondent’s proprietary interests.

EVALUATION:

Before embarking upon a consideration of the issues arising in this appeal, I consider it appropriate to make certain preliminary observations. In my respectful view, this appeal can be resolved by answering a single, determinative question, namely, “whether the Court of Appeal was correct in holding that the appeal before it was incompetent for having been commenced outside the period prescribed by law.”

The resolution of that jurisdictional question necessarily precedes every other issue canvassed before us. It is trite learning that jurisdiction is the fountainhead of our judicial authority. It is the indispensable condition upon which every valid exercise of judicial power depends. Consequently, where jurisdiction is absent, every subsequent step taken by a court, however compelling the merits, is a nullity. It is for this reason that this Court has consistently held that questions touching upon jurisdiction must invariably be determined as a threshold issue before any consideration is given to the substantive rights and obligations of the parties.

This Court, on the 4th of July, 2011 in suit number J1/2/2010 entitled, Sumaila Biebiel vrs. Daramani & Ors speaking through the illustrious Gbadedge JSC, said as follows:

“It is settled that when the question of jurisdiction is raised before any court, the court must proceed to determine it before proceeding to inquire into the claim and/or any other matter before it … So fundamental is the plea of the absence of jurisdiction that once it is raised the court is disabled from exercising its jurisdiction in the matter except to pronounce on whether it has jurisdiction in the matter. This has often been described as “the jurisdiction to determine the question of jurisdiction” or simply the jurisdictional question.”

Similarly, in the case of Bimpong Buta v. General Legal Council [2003-2004] SCGLR 1200, at page 1215 Sophia Akuffo JSC (as she then was) made the following statement on the question of jurisdiction:

“Jurisdiction is always a fundamental issue in every matter that comes before any court and, even if it is not questioned by any of the parties, it is crucial for a court to advert its mind to it to assure a valid outcome.”

The Appellants have invited this Court to revisit a number of findings made by the learned trial Judge concerning, among other matters, the nature of the parties’ relationship, the authority of Elvis Owusu, and the allegations of fraud and unjust enrichment. Those issues undoubtedly constituted the substantive controversy before the High Court. They do not, however, arise for determination unless it is first demonstrated that the Court of Appeal erred in declining jurisdiction to entertain the appeal. It is therefore both logical and legally imperative that this Court first determine whether the appeal lodged before the Court of Appeal was competently invoked.

The right of appeal, though fundamental to the administration of justice, is neither inherent nor unqualified. It exists only within the framework established by the Constitution and/or applicable legislation and the procedural rules enacted pursuant thereto. Accordingly, the competent invocation of an appellate court’s jurisdiction depends upon faithful compliance with both the substantive conditions conferring the right of appeal and the procedural requirements regulating its exercise. [See FRIMPONG v. POKU [1963] 2 GLR 1 SC, NYE v. NYE [1967] GLR 76 CA and AGYEI v. APRAKU [consolidated] [1977] 1 GLR III CA]

Indeed, the law recognises that the competent invocation of the appellate jurisdiction of the Court of Appeal rests upon these two indispensable requirements: first, the existence of a substantive right of appeal conferred by law; and secondly, strict compliance with the procedural requirements prescribed by the applicable Rules of Court for the exercise of that right. It is in recognition of this dual jurisdictional framework that section 11(7) of the Courts Act, 1993 (Act 459), as amended, provides:

“The Court of Appeal shall not entertain any appeal unless the appellant has fulfilled all the conditions prescribed in that behalf by the Rules of Court.”

This Court on 27th July, 2011 in Civil Motion No.: J7/4/2011 intituled Captain Robert Mba Tindana vrs. The Chief Of Defence Staff, The Minister Of Defence And The Attorney-General conferred judicial blessing to this position as follows:

“In Ghana, the right to appeal vested in the applicant from the decision of the High Court to the Court of Appeal was conferred by the 1992 Constitution under Article 137 and section 11 of the Court’s Act, Act 459 of 1993 and regulated by the Court of Appeal Rules, 1997 (CI 19). An appellant who is vested with the statutory right of appeal must comply with all provisions of the statute creating such a right.”

It is settled that where legislation prescribes the period within which an appeal is to be commenced, compliance with that period is a jurisdictional precondition. Unless the applicable Rules expressly permit otherwise, or time has been validly extended in accordance with those Rules, an appellate court acquires no jurisdiction to entertain an appeal commenced outside the prescribed period.

The jurisprudential foundation of this principle is threefold. First, there is the overriding public policy that litigation must, at some point, come to an end. Parties are entitled to know with certainty whether a dispute has been finally resolved or remains susceptible to further appellate consideration. The judicial process cannot permit litigation to remain indefinitely in a state of suspense because of inaction or delay on the part of a litigant.

As this Court observed in the Captain Robert Mba Tindana vrs. The Chief Of Defence Staff, The Minister Of Defence And The Attorney-General supra:

“It is observed that the purpose of time limits for appealing is to provide certainty as to whether or not an action that has been determined has been put to rest by the parties or is pending by way of a process of judicial correction…”

Closely allied to that principle is the equitable maxim that “equity aids the vigilant and not the indolent”. A litigant who, without lawful justification, fails to invoke the appellate process within the period prescribed by law cannot, outside the three-month grace period afforded under the Rules of Court, purport to invoke the equitable jurisdiction of the Court to escape the consequences of that default. The law cannot reward indolence by keeping the doors of justice perpetually open to those who have failed to pursue their rights with reasonable diligence.

This position is vindicated by the decision of this Court in the case of Nye vrs. Nye [1967] GLR 76 where this Court speaking through the venerable Apaloo JSC (as he then was) said as follows:

“The object of limiting the time within which an appeal should be brought is, I apprehend, to make it impossible for an aggrieved person who went to sleep after an adverse judgment against himself to complain and to disturb his opponent with a stale grievance. This, I think, accords with the maxim vigilantibus et non dormientibus jura subveniunt.”

Thirdly, whilst equity undoubtedly tempers the rigours of the law in appropriate cases, it has long been recognized that, ultimately, equity follows the law. Accordingly, the equitable jurisdiction of the Court cannot be invoked to circumvent or defeat clear statutory prescriptions. Thus, where Parliament or a constitutional instrument has stipulated the period within which an appeal must be commenced, equitable considerations cannot enlarge that period except in the manner expressly authorized by the governing Rules. To hold otherwise would permit equity to override the law rather than supplement it.

It is against this jurisprudential backdrop that Rule 9 of the Court of Appeal Rules, 1997 (C.I. 19) prescribes distinct periods within which appeals against interlocutory and final decisions must be commenced, and provides that those periods are to be computed from the date of the decision appealed against.

The Rule provides:

Rule 9 – Time limits for appealing

Subject to any other enactment for the time being in force, no appeal shall be brought after the expiration of:

twenty-one days in the case of an appeal against an interlocutory decision; or

three months in the case of an appeal against a final decision, unless the court below or the Court extends the time.

(2) The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against.

Equally significant is the fact that the power to extend time is itself wholly statutory and circumscribed by the Rules. Order 9 Rule 4 of C.I. 19 sets out the temporal boundaries as follows:

“No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.”

Accordingly, save where an application for extension of time is brought within the limits prescribed above, neither this Court nor the Court of Appeal possesses an unfettered equitable jurisdiction to extend the time for commencing an appeal. Once the statutory framework ceases to permit an extension, the jurisdiction of the Court is exhausted. No resort may then be had to the Court’s inherent or equitable jurisdiction to revive a right of appeal which the Rules have declared to be spent.

[See cases of Nye v. Nye [1967] CC 75 (FULL BENCH); Republic v. Circuit Court Judge, Tamale ex parte Volta Senior Game Warden [1984-1986 1GLR 372; Doku v. Presbyterian Church of Ghana [2005-2006] SCGLR 700]

The question whether the judgment delivered by the High Court on 30th April, 2010 was final or interlocutory lies at the heart of this appeal. Its resolution determines not merely the applicable time limit for appealing under Rule 9 of the Court of Appeal Rules, 1997 (C.I. 19), but ultimately the competence of the appeal itself. It is therefore necessary to examine the legal principles governing the distinction between final and interlocutory decisions.

The distinction has engaged the attention of courts for well over a century. Although the terminology appears deceptively straightforward, its application has frequently presented difficulty.

The first principle, and perhaps the most fundamental, is that a final judgment is not necessarily the last judgment made in the proceedings. Finality is not determined by chronology but by substance. It depends, not upon whether subsequent orders remain to be made, but upon whether the court has conclusively determined the substantive rights of the parties in respect of the principal controversy submitted for adjudication.

This distinction was authoritatively recognised as far back as Ababio v Turkson (1950) 13 WACA 35, where the West African Court of Appeal observed that a final judgment does not mean the last judgment, but the judgment determining rights finally, such as a preliminary judgment establishing the liability to account and directing accounts to be taken.

[See also Matthew Tawiah Aryeetey v Social Security and National Insurance Trust (SSNIT), 26th January, 2011 in Civil Appeal No.: J4/23/08]

The Court unequivocally recognised that a final judgment may essentially determine liability whilst reserving for subsequent determination matters directed solely at working out the practical consequences of that determination.

In our view, the law draws a clear distinction between orders determining the parties’ substantive rights and orders directed merely at implementing, quantifying or enforcing those rights and whilst the former constitute the final judgment, the latter, being merely consequential on the former, are interlocutory in nature.

Accordingly, the relevant inquiry in determining the character of the judgment under reference is whether the decision, as made, finally disposes of the substantive rights of the parties or the principal matter in controversy.

The most notorious rendition of this test, commonly referred to as the Bozson or Lord Alverstone test, may be traced to the celebrated decision of Lord Alverstone C.J. in Bozson v Altrincham Urban District Council [1903] 1 KB 547, where the Law Lord said thus:

‘It seems to me that the real test for determining this question ought to be this : Does the judgement or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.’

It is, however, instructive to note that the Bozson formulation did not emerge in a jurisprudential vacuum. Prior to its adoption in this jurisdiction, English law recognised two competing approaches for determining whether a decision was final or interlocutory. The earlier approach found expression in Salaman v Warner & Others [1891] 1 QB 734, where Lord Esher M.R. propounded what has since become known as the application test.

Under that approach, the character of an order depended, not upon its legal effect, but upon the nature of the application from which it arose. If the application was one which, whichever way it was decided, would finally determine the principal dispute between the parties, the resulting order was regarded as final. Conversely, where the determination of the application merely permitted the action to proceed to a further stage, the order was interlocutory.

That approach, however, was subsequently contrasted with the formulation of Lord Alverstone C.J. in the Bozson case supra which shifted the inquiry away from the nature of the application and directed the court instead to examine the legal effect of the order itself.

When the opportunity arose for this Court to choose between these competing approaches, it unequivocally preferred the Bozson formulation. Thus, in Pomaa & Others v Fosuhene [1987–88] 1 GLR 244, Taylor JSC, after undertaking a comprehensive review of the English authorities, rejected the Salaman application test and adopted the Bozson order test as the governing principle in Ghana. His Lordship stated

“That principle is to the effect that in deciding whether a decision is to be considered final or interlocutory one must look at the nature of the application and not to the nature of the order or decision which the court made. This is the test championed by Lord Esher M.R. in the English cases of Standard Discount Co. v. La Grange (1877) 3 C.P.D. 67, C.A. and Salaman v. Warner [1891] 1 Q.B. 734, C.A. Lord Alverstone C.J., on the other hand in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547, C.A. propounded a logical test, contrary to Lord Esher’s proposition, under which an inference as to whether a decision or order is final or interlocutory is dependent essentially on the nature of the decision or order and consequently on the answer to the question whether the decision or order finally disposes of the rights of the parties or the matter in controversy.

The inherent contradiction in the English cases calls for a resolution of the problem in this country; and although the Supreme Court has not had an occasion to make any pronouncement on the matter nevertheless other courts that have exercised appellate jurisdiction in this country have consistently followed the test sponsored by Lord Alverstone;

…

Jiagge J.A. also reading the judgment of the Court of Appeal in Tawiah v. Brako [1973] 1 G.L.R. 483 at 486, C.A. took the same view when she gave the ambit of an interlocutory decision in this country in the following words:

“An interlocutory decision does not assume finally to dispose of the rights of the parties. It is an order in procedure to preserve matters in status quo until the rights of the parties can be determined.”

I agree entirely with this description which is consistent with Lord Alverstone’s test, a test which Anin J.A. (as he then was) accepted in his judgment in Okudjeto v. Irani Brothers [1975] 1 G.L.R. 96 at 104, C.A. in a decision in which Sowah J.A. (as he then was) concurred; and quite recently in Karletse-Panin v. Nuro [1979] G.L.R. 194 at 210, C.A., Francois J.A. (as he then was) reading his judgment in the Court of Appeal after examining the relevant cases, stated the Ghana position succinctly when he concluded:

“For Ghana then the test is not to look at the nature of the application but at the nature of the order made. This is one area where the courts of Britain and Ghana have already parted ways and the Ghanaian courts have shown remarkable consistency.”

I agree entirely with the views of the Ghanaian judges and I hold that they are right. I will accordingly approve the Alverstone test so consistently followed by the lower courts of this country.”

[See also Atta Kwadwo & Ors. V Badu 1977 1GLR 1; Network Computer Systems Ltd vrs. Intelsat Global Sales & Marketing Ltd [2012] 1 SCGLR 218; Kwame Opoku & Others vrs. Axes Company Ltd [2011] 1 SCGLR 50]

It follows that the inquiry is directed to the legal effect of the judgment itself. If it conclusively determines the principal, substantive and pivotal issues in controversy and leaves nothing further to be judicially determined in relation to those issues, it is final notwithstanding that further proceedings may subsequently become necessary to quantify, implement or enforce the rights thereby declared.

Thus, in Republic v High Court (Fast Track Division), Accra; Ex parte State Housing Company Ltd (No. 2) [2009] SCGLR 185, this Court approved the statement in Halsbury’s Laws of England that:

” In our view, a judgment or order which determines the principal matter in question is termed “final”, whilst an interlocutory order has also been defined in Halsbury”s Laws of England(4th ed) vol. 26 para.506 as:

…an order which does not deal with the final rights of the parties, but either (1) is made before judgment… or (2) is made after judgment and merely directs how the declaration of right already given in the final judgment are to be worked out, is termed interlocutory.”

Consequently, even an order made after a final judgment may itself remain interlocutory if its purpose is merely to operationalise rights already declared.

Indeed, as recently as 14th February 2018 in Civil Appeal No. J4/30/2017 enetiled Nai Otuo Tetteh v Opanyin Kwadwo Ababio (Deceased) & Another, this Court, speaking through Pwamang JSC, reaffirmed that the mere existence of consequential proceedings following the delivery of judgment does not deprive that judgment of its character as a final decision.

In rejecting the contention that a subsequent order for the valuation of property postponed the finality of the judgment, my venerable brother observed:

“It is true that the court made an order for a valuation of a house to be carried out so that it could make further orders, but that did not detract from the finality of the judgment of Dzamefe J.”

In our view therefore, a judgment may remain final notwithstanding that the court may subsequently make ancillary, consequential, ministerial or administrative orders directed at implementing, enforcing, quantifying or otherwise giving practical effect to the rights thereby declared; as those subsequent orders neither reopen the substantive controversy nor postpone the finality of the judgment already pronounced.

Conversely, an interlocutory order is one which does not finally determine the substantive rights of the parties but merely regulates the procedure by which those rights will ultimately be determined or facilitates the implementation of rights already conclusively declared.

It is against these settled principles that the judgment of the High Court delivered on 30th April, 2010 must now be examined.

To properly situate the scope and effect of the judgment delivered on 30th April, 2010, it is necessary to set out, in extenso, the Court’s notes of the proceedings for that day:

“After perusing the evidence in totality, the Court concluded that:

The evidence does not support the claim of the defendants that the store have been “sold” to them or otherwise have been permanently transferred to them by the Plaintiff through their agent Kwame Owusu alias Elvis Owusu alias Oga.

The Court also found that the Defendants are tenants of the Plaintiff.

That the sum paid by defendant was not “good will” but rent advance.

That the rent of GH40.00 fixed by the Plaintiff alone was arbitrary.

That to ensure justice and fair play the court directs the Rent Officer for the Kejetia area to assess the rent exigible for the defendants and present a report on 28/5/10 which is the next adjourned date.

That the Registry shall assist the parties to place the matter before the Rent Officer for the necessary consideration and determination.

The parties are to place before the Registrar, all documents that will assist the Rent Officer in his work. They are also to fully cooperate with the Rent Officer for the work to be done successfully.

Upon the receipt of the report, the court shall proceed to enter final judgment in respect of the rent exigible and determine relevant issues such as costs. Suit adjourned to 28/5/10.”

Having already held that the Bozson order test constitutes the governing standard in this jurisdiction for determining whether a decision is final or interlocutory, the proper inquiry is whether the judgment pronounced on 30th April, 2010 finally disposed of the substantive rights in controversy between the parties.

The principal issues for determination in the action were expressly identified by the trial court at page 114 of the Record of Appeal as follows:

Whether or not the defendants are tenants of the Plaintiff;

Whether or not the defendants owe rent arrears from 2005 until commencement of this suit;

Whether or not Elvis Owusu alias Oga had the mandate of the Plaintiff to negotiate with the defendants to permanently transfer its (Plaintiff’s) interest in the property to the Defendants; and

Whether or not the Plaintiff is entitled to any of the reliefs being claimed and or at all.

It is immediately apparent that each of these substantive controversies was conclusively determined by the judgment of 30th April, 2010.

The third issue concerned the very foundation of the Appellants’ defence, namely, whether Elvis Owusu possessed authority to permanently transfer the Respondent’s proprietary interest in the stores. By holding that “the evidence does not support the claim of the Appellants that the store have been ‘sold’ to them or otherwise have been permanently transferred to them by the Respondent through their agent Kwame Owusu alias Elvis Owusu alias Oga,” the trial court firmly rejected the Appellants’ case that they had acquired proprietary interests in the premises. Nothing remained for future adjudication on that issue. The Appellants’ asserted ownership rights had been extinguished.

Having rejected the claim of permanent transfer, the Court immediately proceeded to determine the parties’ true legal relationship by holding that “the Defendants are tenants of the Plaintiff.” This finding conclusively resolved the first issue set down for trial.

The Court likewise disposed of the character of the monies paid by the Appellants by finding that the sums paid were not “good will” but “rent advance.” That finding rejected another central plank of the Appellants’ case that the payments constituted consideration for a permanent acquisition of the stores. Instead, the Court held that those payments were referable only to a tenancy.

The only aspect of the second issue left unresolved concerned neither liability nor entitlement, but quantification. By declaring the Appellants to be tenants and holding that the monies paid constituted rent advance, the Court had necessarily determined that rent was payable. The only outstanding matter was the amount of rent properly exigible, the Court having further found that the unilateral rent fixed by the Respondent was arbitrary.

The order directing the Rent Officer to assess the rent did not reopen the question whether rent was payable. Neither did it invite reconsideration of whether the parties stood in the relationship of landlord and tenant. Those issues had already been conclusively resolved. The Rent Officer was not called upon to adjudicate competing legal rights or determine liability. His function was confined to supplying factual material to enable the Court to compute the appropriate quantum of rent payable in light of its earlier findings.

Indeed, the subsequent proceedings in the matter bears this out beyond controversy.

Every proceeding occurring after 30th April, 2010 was directed exclusively to the singular issue of rent assessment. The Rent Officer’s report addressed no issue other than the appropriate rent. His subsequent attendance before the Court was solely for cross examination concerning that assessment. Likewise, the additional witnesses called by both parties were not recalled to revisit the questions of ownership, agency, tenancy or liability. Their evidence was expressly confined to matters relevant to the assessment of rent.

The Record of Appeal reveals no attempt by the Court after 30th April, 2010 to reopen any of the substantive issues that had been litigated at trial. By that stage, those controversies had ceased to exist. The ensuing proceedings had become entirely ancillary to the implementation of the judgment already delivered.

This conclusion is put beyond doubt by the learned trial Judge’s own remarks when delivering the ruling of 30th July, 2010. At page 150 of the Record of Appeal, the Court introduced its decision in the following unmistakable terms:

“On 30/4/10, the Court delivered judgment in respect of these cases. Unfortunately, the Court did not have the further and better particulars needed to fix rents for the defendants.”

The learned Judge himself acknowledged that judgment had already been delivered on 30th April, 2010 “in respect of these cases.” The only deficiency identified was that the Court lacked “the further and better particulars needed to fix rents for the defendants.”

Those statements, to our minds, evinced the fact that the Court was not soliciting further evidence on ownership, agency or the status of the parties before it; or indeed whether there was a certain liability on the Appellants to pay rent. Each of those issues had already been determined. What remained outstanding was simply the collection of factual material necessary to enable the Court to calculate the amount of rent payable.

Such an exercise, in our considered view, is quintessentially ministerial, incidental and auxiliary to the substantive judgment which we hold, had already been pronounced on 30th April, 2026.

It is necessary to underscore the fact that under the Bozson order test, the decisive inquiry is whether the order, as made, finally determines the rights of the parties, not whether some consequential step remains before complete enforcement of those rights. A judgment does not cease to be final merely because it reserves the assessment of damages, valuation, costs, accounting, mesne profits or any other consequential computation. Those subsequent exercises merely give practical effect to rights that have already been judicially declared.

We find that the assessment undertaken by the Rent Officer occupied precisely that position. It neither enlarged nor diminished the rights established by the judgment of 30th April, 2010. It merely supplied the factual basis upon which the monetary consequences of those rights could be calculated.

The Appellants nevertheless contend that the judgment of 30th April, 2010 remained interlocutory, partly because the learned trial Judge concluded by stating that:

“Upon the receipt of the report, the court shall proceed to enter final judgment in respect of the rent exigible and determine relevant issues such as costs.”

We are unable to accept that submission. That statement amounted to nothing more than the learned trial Judge’s characterisation of his own order, and while undoubtedly relevant, such a description cannot be determinative of the legal nature of the judgment.

Whether an order is final or interlocutory is ultimately a question of law, to be answered objectively by reference to its substance and legal effect, not by the label attached to it by the Judge who pronounced it.

Equity has long insisted that it looks to substance rather than form and in our considered opinion, the substance of the 30th April, 2010, judgment conclusively determined every substantive issue raised by the pleadings and fixed the legal rights and liabilities of the parties. The subsequent reference to “final judgment” in relation to the rent assessment could not alter the juridical character of what had already occurred.

On the basis of the foregoing considerations, we find that the Appellants were required to challenge the judgment of 30th April, 2010 within the three month period prescribed for appeals against final judgments, or, where appropriate, seek an extension of time within the additional period permitted by law. Having failed to pursue either course, the findings embodied in that judgment became final and binding and were no longer amenable to appeal.

Equally, the ruling delivered on 30th July, 2010, which dealt only with the quantification of rent consequential upon the liability already established by the 30th April, 2010 judgment, was interlocutory in nature. Any appeal against that ruling was therefore required to be commenced within the twenty one day period prescribed by law. The Appellants likewise failed to comply with that requirement.

It follows that the Notice of Appeal filed on 31st August, 2010 against the 30th July, 2010 ruling was incompetent in its entirety. It came too late to challenge the final judgment of 30th April, 2010, and equally too late to challenge the interlocutory ruling of 30th July, 2010. Having failed to invoke the appellate jurisdiction within the statutory periods applicable to each decision, the Appellants’ appeal was incurably defective. The Court of Appeal was consequently devoid of jurisdiction to entertain it.

CONCLUSION:

It was on the basis of the consideration above, that this Court, on the 3rd of June, 2026, dismissed the instant appeal as unmeritorious and affirmed the judgment of the Court of Appeal dated 25th November, 2019 with costs of GHS 3,000.00 against each Appellant.

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS.)

(JUSTICE OF THE SUPREME COURT)

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

(SGD.) D. ADJEI

(JUSTICE OF THE SUPREME COURT)

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

COUNSEL

SAEED KOFI SAM ESQ. FOR THE 1ST,6TH,7TH, 8TH, 9TH, 10TH, 12TH, 14TH, 15TH, 16TH, 18TH, 20TH, 21ST, 28TH & 32ND DEFENDANTS/APPELLANTS/APPELLANTS WITH CONFIDENCE LOKKO ESQ.

DR. JOSEPH KWAKU ASAMOAH ESQ. FOR THE PLAINTIFF/RESPONDENT/ RESPONDENT LED BY K. A. ASANTE KROBEA ESQ.