KUMAH v. KYERAAH AND OTHERS [1965] GLR 235

DIVISION: SUPREME COURT

DATE: 5 APRIL 1965

BEFORE: MILLS-ODOI, OLLENNU ANDACOLATSE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Bruce-Lyle J. (as he then was) given in the High Court, Sunyani, on appeal from a decision of the local court of the Sunyani Urban Council. The facts are fully set out in the judgment.

COUNSEL

Osei-Bonsu for the appellant.

Owusu for Annin for the respondents.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Bruce-Lyle J., as he then was, given in the High Court, Sunyani, on appeal from a decision of the local court of the

Sunyani Urban Council. The respondents, plaintiffs in the local court, are children of one Kwabena

Bogyabi, deceased, and the appellant, defendant in the local court, is successor to the said Kwabena

Bogyabi. The essence of the claim is for a declaration of title to and recovery of possession of a farm described in the writ of summons.

It is the case of the plaintiffs that their father devised the farm to them by his samansiw, an oral will made in accordance with customary law, the substance of which was afterwards reduced into writing, and that the family had refused to surrender the same to them. The defendant admits that the samansiw in question was validly made; he, however, contends that the subject of the samansiw is only one farm, but that the farm as described in the writ of summons comprises two separate farms, one of which is not affected by the samansiw gift. As to the claim for recovery of possession of the one [p.237] of [1965] GLR 235 farm he admits to be the subject of the samansiw, the defendant contends that the said farm together with two other farms left by the deceased are, by customary law, liable for the payment of a debt of, £G500 owed by the deceased at the date of his death, and that quite apart from the customary law, the deceased himself had, in a promissory note covering the debt, mentioned all his farms including the devised farm as properties which could be sold in execution in satisfaction of a decree which may be made against him for the payment of the said £G500. The defendant therefore pleaded that the surrender of the farm cannot be made to the beneficiaries under the samansiw until the debt is discharged. The issues the local court was called upon to determine upon these pleas are: (a) whether the samansiw is in respect of two farms and (b) whether the farm or farms, the subject-matter of the samansiw, are liable, together with other properties of the deceased, for the payment of the debt due from his estate; in other words, whether under customary law property which a deceased person had directed in his samansiw, should be given to a particular person or persons, forms part of the assets for the payment of the debts of his estate.

After taking evidence, oral and documentary, the local court magistrate inspected the farm in dispute; he thereafter delivered his judgment, and in it decided each of the two issues in favour of the defendant holding on the first issue that one and only one farm was devised under the samansiw and not two farms as claimed by the plaintiffs, and on the second issue, that by customary law that farm forms part of the assets of the estate for the payment of the debts of the estate.

The judgment of the local court was delivered on 23 March 1962; the plaintiffs being dissatisfied with it, and intending to appeal therefrom, lodged in the High Court, notice of their intention to appeal; this they did on 27 April 1962, four days outside the statutory period of one month allowed for instituting appeal, as provided by regulation 171 of the Local Courts Procedure Regulations, 1959,1 which were the rules then applicable to appeals from a local court. The plaintiffs also failed to fulfil the statutory conditions of appeal prescribed in regulation 173 of the aforesaid regulations within the time limit allowed. They therefore moved the High Court for an extension of time within which to fulfil the conditions of appeal; this they did in the hope that such an enlargement of time will regularise the appeal. Counsel for the defendant opposed that application on the grounds that since the notice of intention to appeal

[p.238] of [1965] GLR 235 was given out of time, the High Court was not seised of the appeal and therefore had no jurisdiction to enlarge time for fulfilling condijtions of appeal; he however, withdrew his opposition to the application and the learned judge of the High Court granted it. But the withdrawal of the opposition cannot operate to vest the High Court with jurisdiction because parties cannot by consent confer jurisdiction on a court where the court has none by statute.

Eventually the appeal was argued; the learned judge allowed it, reversed the decisions of the local court both on the facts and on the customary law, and entered judgment for the plaintiffs on their claim. From that judgment the defendant appealed on the following main grounds:

(1) The appeal was not properly before the High Court since the plaintiffs failed to comply with regulation 171 of the Local Courts Procedure Regulations, 1959, and the High Court, was therefore incompetent to enlarge time for fulfilling conditions of appeal;

(2) The learned judge erred in setting aside the findings of fact made by the local court where those findings are fully supported by the evidence; and

(3) The learned judge misdirected himself on the customary law in holding that property given under samansiw is not liable for payment of debts of the deceased.

In respect of the first ground, counsel for the defendant cited Muffat v. Kpeshie II,2 he also commended to, and requested the court to treat with respect and adopt the decision of the High Court in Adzado v.

Bebi,3 which was based upon Muffat v. Kpeshie II (supra). The decisions in Muffat v. Kpeshie II and

Adzado v. Bebi are based respectively on regulation 115 of the Native Courts (Southern Ghana)

Procedure Regulations, 1954,4 and regulation 118 of the Native Courts (Southern Togoland) Procedure

Regulations, 1949,5 which are identical with each other, and identical with regulation 171 of the Local

Courts Procedure Regulations, 1959 (supra) now in question. Counsel submitted therefore that the order enlarging the time within which to fulfil conditions of appeal is void of effect.

Counsel for the plaintiffs agreed with his learned friend that the decisions cited in support of the submissions are correct statements of the law in respect of regulation 171 of the Local Courts Procedure

Regulations, 1959; he submitted, however, that those decisions are

[p.239] of [1965] GLR 235 not applicable to this case because, in his opinion, while no power to enlarge time within which to appeal was given to the High Court under either the Native Courts (Southern Ghana) Ordinance,6 or under the

Native Courts (Southern Togoland) Ordinance,7 each now repealed, section 29 of the Native Courts

(Ashanti) Ordinance,8 gave the High Court such power to extend time within which appeal may be brought to it from a local court in Ashanti. He submitted further that although provision was made under subsection (2) of section 76 of the Local Courts Act, 19589 for the repeal by proclamation of the Native

Courts (Ashanti) Ordinance, and although the Local Courts Act, 1958, itself has been repealed, yet no proclamation has been made to repeal the Native Courts (Ashanti) Ordinance, and so the Ordinance must be deemed to be still in force, and therefore the High Court is empowered by virtue of section 29 thereof to grant an extension of time within which to appeal to it from a decision of a local court in Ashanti and

Brong-Ahafo. Counsel submitted, therefore, that the extension of time was properly granted, and that the appeal is within the competency of the High Court.

These submissions made by counsel for the plaintiffs are misconceived; there are three answers each of which completely disposes of his arguments. The first and the most important one is that the submission that the Native Courts (Ashanti) Ordinance is still in force is not correct; that Ordinance was repealed on I

July 1960 by the Native Courts (Repeal) Proclamation, 1960,10 published on 28 June 1960, made under subsection (2) of section 76 of the Local Courts Act, 1958, which fixed I July 1960 as the date for the repeal of the enactments specified in Part II of the Third Schedule to the Local Courts Act, 1958; those enactments include the Native Courts (Ashanti) Ordinance.

The second answer is that the High Court mentioned in the Native Courts (Ashanti) Ordinance, is the

High Court as defined in section 2 of that Ordinance, i.e. the High Court as constituted under the Courts

Ordinance,11 whereas the High Court which purported to grant extension of time and also to hear and determine the appeal is the High Court created by article 41 of the Constitution, 1960, and whose jurisdiction, original and appellate, is prescribed in the Courts Act, 1960.12

[p.240] of [1965] GLR 235

The third answer is that a local court under the Native Courts (Ashanti) Ordinance, can only be constituted by three or five members, whereas the local court which heard this case was constituted by one person, a local court magistrate; it is therefore not a local court under Cap. 99 and the provisions of

Cap. 99 cannot therefore apply to it or to appeals from its decision.

It follows that the submissions made by counsel for the plaintiffs are untenable, and that as admitted by him, the decision in Adzado v. Bebi (supra), is on all fours with the present case. There is no inherent right in a party dissatisfied with a decision of a court to appeal against that decision; appeal lies only by statute; a right of appeal so given by statute can only be exercised in accordance with the provisions of the statute and within the time limit allowed by the statute creating the right; if the right is not exercised within the statutory period, it determines and it is irretrievable: see Frimpong v. Poku,13 which interpreted the said regulation 171 of the Local Courts Procedure Regulations, 1959.

Again, the jurisdiction of a court of appeal in any particular appeal can only vest if the would-be appellant brings his appeal within the time fixed by the statute. It follows that a discretion given to an appellate court to enlarge time within which conditions of appeal may be complied with cannot be exercised by an appellate court in a case where the appeal is not brought within the statutory period, because in law there will be no appeal before the court in which the court can exercise jurisdiction. Now regulation 171 of the

Local Courts Procedure Regulations, 1959, which is material to this case provides that:

“Any person wishing to appeal from an order, decision or judgment of a Local Court shall file in such Court and lodge in the Appeal Court a Notice of Intention to Appeal and such notice shall be filed and lodged within one month of the date to the order, decision or judgment appealed against.”

The decisions in Adzado v. Bebi (supra) and Frimpong v. Poku (supra) correctly state the proper interpretation of this regulation; that interpretation is that if the notice of intention to appeal is not delivered to the appeal court within one month of the date of the judgment appealed against the right of appeal is automatically lost, and the court to which the appeal would have gone, if the appeal had been filed in time, would have no jurisdiction to entertain an application for an extension of time or any application in that case.

[p.241] of [1965] GLR 235

The regulation 171 of the Local Courts Procedure Regulations, 1959, has now been replaced with slight variation by regulation 170 (1) of the Local Courts Procedure Regulations, 1962,14 which is as follows:

“Any person wishing to appeal from a final decision of a Local Court shall file in the Appeal Court a notice of intention to appeal within one month of the date of the decision. Any such notice may be posted to the

Registrar of the Appeal Court by prepaid registered letter together with the prescribed fee.”

Under this new rule it is no longer necessary to file a copy of the notice of intention to appeal in the local court from which the appeal is taken. This means that if the notice of intention to appeal is not filed in the appellate court or posted addressed to the registrar of the appellate court before the expiration of one month after the judgment of the trial court, the appellate court will not be seised of jurisdiction in the matter and will be incompetent to entertain any application in it.

The notice of intention to appeal in this case not having been lodged in the High Court within one month, the High Court had no jurisdiction to entertain the appeal; therefore the judgment it delivered in the appeal is null and void. That being so, this case is on all fours with the case of Adzado v. Bebi (supra), which is based upon Muffat v. Kpeshie II (supra). Therefore the only existing judgment in the case is the judgment of the local court. In the circumstances it is unnecessary to deal with the appeal on its merits; it is enough to say that the decision of the local court on the facts is fully supported by the evidence, and its conclusions on the customary law correctly state the customary law.

For these reasons the appeal must be allowed, and it is accordingly allowed.

DECISION

Appeal allowed.

S. K. D.-B.