AMPONG v. FREMPONG [1965] GLR 350
17 May 1965 · MILL-ODOI JSC · ≈ 6 min read
[1965] SLR (SC) 13Other citation styles and permanent link
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DIVISION: SUPREME COURT
DATE: 17 MAY 1965
BEFORE: MILLS-ODOI, OLLENNU AND APALOO JJ.S.C.
NATURE OF PROCEEDINGS
MOTION for an injunction and for the appointment of a receiver and manager, pending the hearing and determination of the applicant’s appeal before the Supreme Court.
COUNSEL
Victor Owusu for the applicant. Osei-Bonsu for the respondent.
JUDGMENT OF MILL-ODOI, J.S.C.
Mills-Odoi J.S.C. delivered the ruling of the court. On 5 April 1965, we ruled that the motion by the defendant-applicant (hereinafter called the applicant) for an order for injunction and for the appointment of a receiver and manager, pending the hearing and determination of the appeal was properly before the court. The following are our reasons: the claim which gave rise to this application was instituted by the plaintiff-respondent (hereinafter called the respondent) at the Effiduase Local Court against the applicant for damages for alleged trespass to his piece or parcel of land at Kumawu in Ashanti. The local court gave judgment for the applicant; on appeal the High Court, Kumasi, reversed this judgment, and from this reversal the applicant has appealed to this court. In order to preserve the subject-matter in dispute, pending the determination of the appeal, the applicant filed a motion in this court, on 8 February 1965, for an order for injunction and for the appointment of a receiver and manager. It was supported by an affidavit. The application was opposed by the respondent by an affidavit filed by him on 11 March 1965. When the motion came on for hearing on 5 April 1965, learned counsel for the applicant, Mr. Victor
Owusu, expressed grave doubt as to whether the application was properly before the court. He was in a dilemma as to whether or not the application ought to have been made in the first instance to the court below. Nevertheless, he contended, though devoid of his usual vigour and efficacy, that as the record of appeal and the docket in the case have been transmitted to this court the appeal is deemed to have been entered in accordance with rule 15 (2) of the Supreme Court Rules, 19621;
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therefore this court is competent to entertain the motion. Learned counsel for the respondent found himself unable to challenge the jurisdiction of this court. He stated that he would bow to any ruling which this court would deem it fit to give on the matter. The question which arose for our consideration involves the proper application of rules 15 and 21 of the Supreme Court Rules, 1962, and the determination as to what stage in the proceedings it can be said that an appeal has been entered under the aforesaid rules. Rule 15 reads as follows: “(1) The Registrar of the Court below shall transmit the record when ready together with- (a) a certificate of service of the notice of appeal; (b) a certificate that the conditions imposed under rules 12 (4) and 13 have been fulfilled; (c) five or three copie as the case may be of the record for the use of the Judges; (d) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith. (2) The Registrar of the Court below shall also cause to be served on all parties mentioned in the notice of appeal a notice that the record has been forwarded to the Registrar, who shall in due course enter the appeal in the cause list mentioned in rule 3 (1).” Rule 21 also reads as follows: “After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto, and every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.” A party who intends to appeal to the Supreme Court in any cause or matter, against the judgment or decision of the High Court, hereinafter referred to as “the court below,” shall file in the court below a notice of appeal which shall contain, inter alia, the names and addresses of all the parties who will be directly affected by the appeal: see rule 8. The notice of appeal must be filed within the time limit for appealing as prescribed by rule 10 of the aforesaid rules. Thereafter “the Registrar of the court below shall … cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal”: see rule 11. He shall also summon the
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parties before him to settle the record of appeal, in the course of which he is empowered, inter alia, to lay down conditions which the would-be appellant must fulfil within a limited time, e.g. to deposit with the registrar “a sum fixed to cover the estimated expense of making up and forwarding the record of appeal”: see rule 12(4). Within such time as the registrar of the court below shall fix, the would-be appellant is also called upon to furnish sufficient security “for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid” by him: see rule 13. When all the requirements above referred to are complied with, the registrar of the court below transmits the record, together with all the documents mentioned in rule 15 (1) supra, to the Supreme Court whose registrar “shall in due course enter the appeal in the cause list.” (The emphasis is mine.) In our opinion the appeal is entered, or is deemed to have been entered, the moment the registrar of the Supreme Court receives the record and all the accompanying documents listed in rule 15 (1) of the aforesaid Rules. It will be observed that the docket or the file which contains all relevant materials for the due prosecution of the appeal would have, at that stage, been transmitted from the court below to this court. On the receipt of these documents the court below becomes functus officio; the Supreme Court then becomes seised of the whole of the proceedings as between the parties thereto and, until the appeal is finally determined “every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.” However, from the date of filing the notice of appeal and before the appeal is entered in the cause list any application which may be made either to the court below or to this court “shall be made in the first instance to the Court below, but if the court below refuses the application the applicant shall be entitled to have the application determined by the court”: see rule 28. In the instant case the record and all the relevant documents mentioned in rule 15(1) supra were received by the registrar of this court on 18 November 1964. The motion and the accompanying affidavit by the applicant were filed on 8 February 1965, some two-and-a-half months after the court had been seised of the whole of the proceedings between the parties. In our view therefore this court was competent to entertain the application under the jurisdiction conferred upon it by rule 21 supra.
DECISION
Motion to proceed.
S.K.D.-B.
