GBEWAA CIVIL ENGINEERS vs. MENSAH [1999-2000] 1 GLR 637
1 April 1999 · ESSILFIE-BONDZIE JA · ≈ 4 min read
[1999] SLR (CA) 5Other citation styles and permanent link
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CASE REFERRED TO
Cropper v Smith (1884) 26 ChD 700; 53 LJCH 891; 51 LT 729, CA.
NATURE OF PROCEEDINGS
APPLICATION by the appellant for an order of the Court of Appeal striking out or expunging the statement of case filed out of time by the respondent contrary to rule 20(4) of the Court of Appeal Rules,
[p.638] of [1999-2000] 1 GLR 637 1997 (CI 19). The facts are sufficiently set out in the ruling of Essifie-Bondzie JA.
COUNSEL
Peter Ala Adjetey for the appellant-applicant.
No appearance for the respondent.
JUDGMENT OF ESSILFIE-BONDZIE JA.
On 11 May 1998 this court ordered the parties to this appeal to comply with rule 20 of the Court of Appeal Rule, 1997 (CI 19). On 1 June 1998 the appellant in compliance with the order filed their statement of case. The record shows that the respondent failed to file his written submission in answer to the appellants’ written submission within three weeks as required by rule 20 (4) of CI 19. As a search conducted by the solicitor of the appellant’s reveals, the respondent was served with a copy of the appellants’ statement of case on 4 July 1998. But the respondent failed to file his statement of case within three weeks. He filed it on 8 January 1999. That is out of time by six months.
The application before us is a prayer for an order striking out or expunging the statement of case filed on behalf of the respondent. Learned counsel for the appellants has not indicated on his motion paper the rule under which he is invoking the power of the court. I have carefully read CI 19 but nowhere have I found the sort of sanction the appellants are seeking the aid of the court to enforce. The only rule under CI 19 which appears to punish a respondent for non-compliance with rule 20 (4) of CI 19 is rule 20 (8) which empowers the court to proceed to hear an appeal without giving the respondent a hearing. And this applies only when he failed to file a written submission of his case. There is no provision for striking out a written submission, filed out of time.
Be that as it may, the facts are clear that the respondent filed his statement of case when it was out of time by six months. But one must not lose sight of the fact that, at the time the appeal came before the court the respondent had already filed his statement of case. Rule 20 (4) of CI 19, however, provides:
“(4) A party upon whom an appellant’s written submission is served shall, if he wishes to contest the appeal, file the written submission of his case in answer to the appellant’s
[p.639] of [1999-2000] 1 GLR 637
written submission within three weeks of the service, or within such time as the Court may upon terms direct.”
(The emphasis is mine.) It is obvious from the above provision that in an appropriate case this court has discretion to extend the time within which a respondent can file his statement of case. But as said, at the time the appeal came before the court the respondent had already filed his written submission. There is nothing on record to show that before the belated written submission was filed there was an application before the court to refuse him a hearing. I think that since the written submission has already been filed, albeit belatedly, and is before us, the court cannot shut its eyes on it. The court has, in my view, a discretion under its inherent jurisdiction to do justice and in order to determine the real question in controversy between the parties, to extend the time and admit the belated written submission on terms for as Bowar CJ stated in the case of Cropper v Smith (1884) 26 ChD 700 at 710:
“It is a well established principle that the object of the courts is to decide the right of the parties, and not to punish them for mistakes they make in the conduct of, their cases by deciding other wise than in accordance with their right … I know of no kind of error or mistake which, if not fraudulent or intended to over reach the court ought not to correct, if it can be done without injustice to the other party.” In this case, as the respondents written submission was filed before the instant complaint, it is admitted by the court subject to the payment of costs to the appellant.
JUDGMENT OF SAPONG JA.
I agree.
JUDGMENT OF AFREH JA.
I also agree.
DECISION Application dismissed.
LSNA
