SAKYI vs. TAKYI [2001-2002] 2 GLR 457

SAKYI v TAKYI
[2001-2002] 2 GLR 457

Division: COURT OF APPEAL, ACCRA

Date: 26 DECEMBER 2001

Before: WOOD, FARKYE AND OWUSU JJA

Practice and procedure—Appeal—Statement of case—Time for filing—Rule 20(1) of CI 25 prescribing 21-day period for filing statement of case—21-day time limit mandatory—Appellant filing statement of case after 21-day limit without obtaining extension of time—Whether appeal properly before court—Consequential order—Court of Appeal Rules, 1997 (CI 19), r 20(1) and (2)—Court of Appeal (Amendment) Rules, 1999 (CI 25).

It is provided by rule 20(1) and (2) of the Court of Appeal Rules, 1997 (CI 19) as amended by the Court of Appeal (Amendment) Rules, 1999 (CI 25) that:

“20. (1) An appellant shall within three weeks of being notified in Form 6 set out in Part I of the Schedule, that the record is ready, file with the Registrar a written submission of his case based on the grounds of appeal as set out in the notice of appeal.

(2) Where the appellant does not file the written submission of his case in accordance with sub-rule (1), the appeal shall be considered to have been struck out and the Registrar shall inform the parties accordingly.”

The plaintiff-respondent raised a preliminary objection against the defendant appellant’s appeal on the ground that since the appellant had filed his statement of case well after 21-day period prescribed by rule 20(1) of the Court of Appeal (Amendment) Rules, 1999 (CI 25) had expired, the appeal was not properly before the Court of Appeal. In the result, he (the respondent) was not bound to file an answer to contest the appeal. However, the defendant contended that since his appeal had not been struck out by the court under a registrar’s certificate in compliance with rule 20(2) of CI 25, he was entitled under the law to file his statement of case as a matter of right without seeking an extension of time.

Held, granting the preliminary objection: under rule 20(1) of CI 25, unless the court had granted an extension of time, the 21 days limit prescribed for filing a statement of case by an appellant was mandatory. Consequently, after the expiry of the 21 day period, a statement of case could only be filed by a party upon such terms as the court might direct, and therefore an appellant who failed to comply with the rule did not have an automatic right to file his statement without leave. Accordingly, the appellant’s statement would be struck out since it was not

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properly before the court. In the circumstances, the appeal was not ripe for hearing and it would therefore be adjourned sine die.

PRELIMINARY OBJECTION against the appellant for filing his statement of claim after the 21-day period prescribed by rule 20(1) of the Court of Appeal (Amendment) Rules, 1999 (CI 25) had expired.

The facts are sufficiently stated in the judgment.

Ebow Dawson for the appellant.

James Ahenkorah for the respondent.

Wood JA. At the hearing of this appeal, the plaintiff-respondent (hereinafter referred to as the respondent) raised a preliminary objection.

The sum of the argument in support of the objection is that, since the statement of case was filed well outside the 21-day period, prescribed under rule 20 of the Court of Appeal Rules, 1997 (CI 19) as amended by the Court of Appeal (Amendment) Rules 1999 (CI 25), and the defendant-appellant (hereinafter referred to as the appellant) had not sought to do so with the leave of the court, the statement so filed is not properly before the court and the respondent was entitled to ignore it and not bound to file an answer to contest the appeal.

The appellant’s counsel does not dispute the fact that the appeal was filed outside the period set out under the rules. His counter argument is that once the appeal has not been struck out by the court, they were entitled in law, as a matter of right and without seeking any extension of time, to file their written submission. A plea that the time be extended them for that very purpose, the argument went, would become necessary only where the appeal was going to be struck out on a registrar’s certificate. So that once the registrar had not exercised his duty under rule 20(2) of CI 25, by notifying the court that the appellant has not complied with rule 20 of CI 25, they were at liberty to file the offending statement.

Quite plainly, the rules prescribe the period within which an appellant’s statement of case may be filed. The rule is so self explanatory it would be prudent to reproduce it:

“20. (1) An appellant shall within 21 days of being notified in Form 6 set out in Part 1 of the Schedule that the record is ready, or within such time as the Court may upon terms direct, file with the Registrar a written submission of his case based on the grounds of appeal set out in the notice of appeal and such other grounds of appeal as he may file”

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The time limited under rule 20(1) of CI 19 as amended by CI 25 within which the statement may be filed is 21 days. A shorter or longer period, may also be directed by the court under rule 20(2) of the CI 19 as amended. In our view, unless a court specifically directs a shorter or longer period, the time stipulated under the rules within which an appellant seeking to proceed with an appeal may file his statement of case is 21 days. The period is mandatory and hence the use of the word “shall.” The rule does not stipulate, as argued by appellant counsel, that the period is limited to such time as the appeal shall, upon a registrar’s certificate be struck out. The rule therefore does not give any such unfettered discretion to the appellant as contended by counsel. It does follow that by a clear reading of the rule, and indeed by necessary implication, after the expiry of the 21-day period, the statement can only be filed within such time and upon such terms as the court may direct. Therefore, an appellant who fails to comply with the 21-day rule, has no automatic right to file his statement without leave. Indeed, the argument that he may only seek extension of time when the registrar has notified the court of the non compliance, and is seeking the courts intervention to have the appeal struck out, is in our view untenable.

The law having set out the time within which the statement ought to be filed, the courts should be the first to ensure its compliance. We will uphold the objection and strike out the statement as not being properly before us. The appeal is not ripe for hearing and it is therefore adjourned sine die.

Preliminary objection upheld.

J N N O