MENSAH AND OTHERS v. YEBOAH [1965] GLR 101

DIVISION: HIGH COURT, CAPE COAST

DATE: 2 MARCH 1965

BEFORE: LASSEY J.

CASE REFERRED TO

Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A.

NATURE OF PROCEEDINGS

RULING on a preliminary point that a notice of appeal signed by one appellant on behalf of his co-appellants did not constitute a valid notice of appeal by all the co-appellants. The facts are sufficiently set out in the ruling.

COUNSEL

I. K. Abban for the appellants.

Dr. E. V. C. de Graft-Johnson for the respondent.

JUDGMENT OF LASSEY J.

Upon this appeal coming before me for hearing and determination learned counsel for the plaintiff-respondent argued a preliminary point of law that apart from the fourth defendant whose appeal is properly before the court all the other remaining defendants are not properly before the court as appellants because they have not

[p.102] of [1965] GLR 101 each signed the notice of appeal; learned counsel further contended that a notice of appeal signed by one of the defendants on behalf of the others is improper and irregular and cannot constitute a valid notice of appeal by the said defendants. The plaintiff-respondent instituted this action against the defendants alleging a wrongful act on their part in purporting to have deposed the plaintiff as head of the late Kobina

Ayi’s family, and alternatively claiming £G100 damages from the defendants jointly and severally for the alleged wrongful act.

After hearing evidence of the parties and their witnesses in a reserved judgment the Awutu Local Court on 30 July 1963, found in favour of the plaintiff, and awarded her £G75 as damages with costs to be taxed against all the defendants jointly and severally. Against this judgment the fourth defendant, purporting to be acting for himself and on behalf of the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fifteenth, sixteenth and seventeenth defendants, has appealed to this court by filing the notice of intention to appeal dated 31 July 1963, and signed by the fourth defendant for himself and the other defendants already mentioned.

The right to appeal from a judgment of a local court to the High Court is governed by the Courts Act,

1960,1 and the procedure on appeal is governed by regulation 170 (3) of the Local Courts Procedure

Regulations, 1962.2 By the wording of the regulation every person or persons aggrieved by or dissatisfied with a decision of a local court could appeal to this court by filing in the local court a notice of intention to appeal. Counsel for the appellants has conceded to the fact that the notice of appeal was in fact signed by the fourth defendant purporting to have done so for himself and on behalf of the other defendants, but argued that despite any apparent technical defect in the signing of the notice of appeal as the notice of intention to appeal was signed by the fourth defendant on behalf of the remaining appellants the said notice was regular in form and in due compliance with the regulations, and therefore that the other defendants are entitled to be heard as they would seem to be proper appellants before this court in the circumstances.

An examination of the cases decided under the operation of the former Native Court Ordinances and

Procedure Regulations which have since been replaced by the Courts Act, 1960, and the Local Courts

Procedure Regulations, 1962, seems to show that where several parties have the same or common interest in a subject-matter

[p.103] of [1965] GLR 101 they can sue or be sued together, and one of those parties can be authorised by the others to represent them and conduct the action on their behalf. I am, however, of the opinion that once the action has been fought to a conclusion and a judgment delivered against one or some or all of the several parties, any aggrieved party or parties wanting to appeal therefrom must himself or themselves have to sign the notice of intention to appeal because the authority to represent ceases as soon as judgment is delivered; it may be that a party against whom judgment has been delivered may wish to abide by the decision and not to appeal against it. Therefore any would-be appellant or appellants must sign the notice of his or their intention to appeal, and where there are several would-be appellants each must himself sign the notice of the intention to appeal. When the appeal is properly before the court and it is ascertained who are the parties actually appealing authority may be given to one of the would-be appellants to conduct the appeal on behalf of himself and the other appellants. Representation during the conduct of a case or an appeal is different from the representation for the purpose of preparing or lodging a notice of appeal.

In the instant case there is nothing to indicate that the fourth defendant was expressly authorised by the other defendants to appeal on their behalf. There is nothing on the face of the record to show that each and every one of them was aggrieved by or dissatisfied with the judgment of the local court and intended to appeal therefrom. On the authority of Makata v. Ahorli3 where it was held that a notice of appeal should be signed by all the parties to the appeal, I seem to be in agreement with the point of view taken by learned counsel for the plaintiff-respondent that the other defendants have not appealed and therefore are not proper appellants before this court for the purpose of arguing the present appeal.

Mr. Abban, learned counsel for the appellants, made another gallant effort in an attempt to save the unsatisfactory situation created by his clients by asking the court to invoke the provision under section 33 of the Courts Act, 1960, which reads as follows, “Notwithstanding anything to the contrary in section 32, the High Court may, on any terms which it thinks just entertain any appeal under this or any other enactment.” It seems after a careful study of the relevant sections that before an appellant can avail himself of the benefit of that section he must first be a proper appellant before the court; he must show an intention to appeal as required by the rules and after that any defect or imperfection arising due to non-compliance with the other remaining conditions of the appeal may

[p.104] of appeal. be cured by the application of the provisions of this section; but where the defect is incurable, as in this case, and is not a mere technicality, I am of the same view as that taken by learned counsel for the plaintiff-respondent that the section cannot be invoked to cure such a defect.

Learned counsel for the plaintiff-respondent in an attempt, perhaps, to get this appeal disposed of in a summary manner contended very seriously that the fourth defendant, the only proper appellant before this court, has no appealable interest in the subject-matter of this appeal. Learned counsel’s ground for so holding is that there was some evidence led at the trial to show that the fourth defendant was not a member of the plaintiff’s family and should not have been joined in the action in the first instance. In my view, that may have been so, but the result of the trial shows that he has not been dismissed from the action, but has had a judgment delivered against him with an order upon him to pay costs to the successful plaintiff. If the action was wrongly decided against him, as he felt it was, and having been aggrieved by and dissatisfied with the said judgment of the local court, his only remedy was to appeal therefrom, which is the only proper course he has taken. I am unable to agree with this contention of learned counsel. I think the fourth defendant’s appeal is properly before the court. In this connection the preliminary point raised during the argument must succeed and seems to me to be a final blow to the validity of the other remaining appellants’ appeal which I accordingly strike out and stand dismissed.

Costs of this application to abide the result of the appeal by the fourth defendant.

DECISION

Preliminary objection upheld.

E. A.-A.