WEREKO v. AKYEAMPONG [1965] GLR 334

DIVISION: SUPREME COURT

DATE: 3 MAY 1965

BEFORE: MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Dankwa v. Fuller (1957) 3 W.A.L.R. 168, C.A.

(2) Ohene Moore v. Akesseh Tayee (1934) 2 W.A.C.A. 43, P.C.

(3) Frimpong v. Poku [1963] 2 G.L.R. 1, S.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Kumasi, dated 11 April 1963, allowing an appeal from the

Kumasi South (Division 1) Local Court dated 19 May 1961, in proceedings for a declaration of title to a piece or parcel of land situated at a place known as “Tadieti” on Antoa stool land.

COUNSEL

C.F. Hayfron-Benjamin, Sen. for the appellant.

K. Sackey for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the judgment of the court. This is an appeal from the judgment of the High

Court, Kumasi, dated 11 April 1963, allowing an appeal from the Kumasi South (Division 1) Local Court dated 19 May 1961, in proceedings for a declaration of title to a piece or parcel of land situate at a place known as “Tadieti” on Antoa stool land.

The plaintiff is the odikro of Aketebomo and claimed title to the land in dispute under an alleged grant made to his ancestors by Nana Antoahene. The defendant denied the plaintiff’s title to the land as alleged and stated that the disputed land formed part of a vast area of land which was granted to his (defendant’s) ancestors, Adu Amoyaw, by the Antoa stool long before the plaintiff’s ancestors came to settle at Antoa.

According to the defendant the plaintiff has no land in the area in dispute.

After taking evidence from the parties and their witnesses including Nana Sarkodie Asenso III, the occupant of the Antoa stool through which stool each party claimed his title, the local court magistrate inspected inspected the land in dispute. Thereafter he delivered his judgment in favour of the plaintiff and declared “the boundaries as shown by the plaintiff to be that official and ancient boundary between the plaintiff and the defendant.” [p.336] of [1965] GLR 334

The judgment of the local court was delivered on 19 May 1961. The defendant being aggrieved by and dissatisfied with it, and intending to appeal therefrom, lodged in the High Court, a notice of his intention to appeal; this he did on 1 June 1961, within the statutory period of one month allowed for filing a motion of intention to appeal, as provided by regulation 171 of the Local Courts Procedure Regulations, 1959.1

He, however, failed to fulfil the statutory conditions of appeal prescribed in regulation 173 of the aforesaid regulations within the time limit allowed, and the High Court, acting under the power vested in it by regulation 180 (1) thereof, struck out the appeal on 15 November 1961.

Labouring under a misconception that his appeal was struck out for non-compliance with regulation 171, namely, that he failed to lodge the notice of intention to appeal in the High Court within the statutory period of one month, the defendant filed in the High Court, on 25 July 1962, a motion asking for “leave to appeal out of time.” However, he discontinued the motion by a notice of discontinuance which was filed on 20 August 1962.

On the same day as the notice of discontinuance was filed, the defendant filed another motion in the High

Court, this time asking for an extension of time within which to fulfil the statutory conditions of his appeal, erroneously believing that such an enlargement of time would regularise his appeal.

On the motion coming on for hearing on 1 October 1962, the plaintiff vehemently opposed the defendant’s application, on the ground that his (defendant’s) appeal had already been struck out.

However, the learned judge of the High Court, acting under the proviso to regulation 180 (1), granted the defendant’s application and restored to the list the appeal which had been struck out. He then extended the time for the fulfilment of the statutory conditions to 31 October 1962.

In due course the appeal was argued and the learned judge allowed it and “set aside the judgment of the trial local court together with any [order as to] costs awarded,” and proceeded to give “judgment for the defendant with costs assessed at 30 guineas.” From that judgment the plaintiff appealed to this court, and on the appeal coming on for hearing one Abena Achia was substituted for the defendant, Opanin Kwasi

Akyeampong, who had then died. The one and only ground of appeal argued on the plaintiff’s behalf by

Mr. Hayfron-Benjamin was that, “The proceedings before the High Court, Kumasi, were wholly irregular and void for lack of the exercise of the necessary jurisdiction.” Our understanding of this ground of

[p.337] of [1965] GLR 334 appeal is that the purported acts of the learned judge in restoring to the list the defendant’s appeal which had been struck out and in granting an extension of time to fulfil the statutory conditions were in excess of his jurisdiction.

While conceding that the learned judge wrongly acted upon the first proviso to regulation 180 (1) of the regulations referred to supra, learned counsel for the defendant, Mr. Kofi Sackey, contended that regulation 180 (1), (2) and (3) when considered as a whole, give the High Court power to enlarge the period of one month within which the statutory conditions of regulation 173 are to be fulfilled. With respect to learned counsel for the defendant, his interpretation of regulation 180 is not wholly acceptable.

It is sufficient to state that the appellate High Court is empowered to enlarge the time for the fulfilment of the statutory conditions if the notice of intention to appeal is filed within the statutory period of one month to enable it to become seised with the appeal: see Dankwa v. Fuller,2 or if an appeal has been struck out under regulation 180 (1) and an application is made to the appellate court, within one month from the date of striking out the appeal. Regulation 180 (1) under which the High Court acted in striking out the appeal reads as follows:

“180. (1) An Appeal Court of its own motion as soon as may be convenient after the receipt of the

Notice of Intention to Appeal and unless it shall for good cause shewn extend the period of one month within which the requirements of these regulations are to be complied with (which power of extension is reserved to the Appeal Court) shall upon being satisfied that the appellant is not entitled to appeal or that the requirements have not been complied with, order the appeal to be struck out:

Provided that no order shall be made striking out an appeal on the grounds that the appellant is not entitled to appeal, unless the appellant has been given an opportunity to be heard thereon.”

This regulation vests the High Court with power to strike out an appeal on two grounds:

(a) if it is satisfied that the appellant is not entitled to appeal;

(b) if it is satisfied that the statutory requirements under regulation 173 have not been complied with within the statutory period of one month.

It follows from the proviso reproduced supra that whereas in (b) above the High Court can, of its own motion, strike out an appeal,

[p.338] of [1965] GLR 334 in the absence of the appellant, who has no opportunity to be heard thereon, it cannot do so in the case of

(a) above, unless the appellant has been given an opportunity to be heard.

However, under regulation 180 (3) an appeal which has been struck out on the ground that the statutory requirements under regulation 173 have not been complied with, may be restored to the list by the appellate court, for good cause shown by the appellant, upon such terms and conditions as may be thought just if within one month of the date of the order striking out the appeal an application by way of motion is made to it asking for its restoration. In other words, jurisdiction is conferred upon the High

Court under regulation 180 (3) to restore to the list an appeal which it had struck out for non-compliance with the statutory conditions prescribed in regulation 173, if the following conditions are fulfilled, namely,

(a) an application by way of motion is made by the appellant to the High Court asking that the appeal which had been struck out be restored to the list;

(b) the application shows good cause why the appeal should be restored; and

(c) the application is made within one month from the date of the order striking out the appeal.

As stated earlier in this judgment, the judgment of the Kumasi South (Division 1) Local Court was delivered on 19 May 1961. After the expiration of fourteen months, i.e. on 20 August 1962, the defendant applied to the High Court, by way of motion, “for an extension of time within which to fulfil the remaining conditions of appeal in the above suit on the grounds set out in the accompanying affidavit,” paragraphs (3) and (4) of which read as follows:

“(3) On the 1st day of June 1961, I filed a notice of intention to appeal against the decision of the Kumasi

South Local Court.

(4) One week after I had filed the said notice of intention to appeal 1 fell sick and 1 was taken to Amansie for medical treatment. 1 returned to my hometown in Antoa on the 16th day of July 1962.”

From the foregoing, it would seem that the defendant filed the notice of intention to appeal within the statutory period of one month as prescribed in regulation 171 but he failed to fulfil the statutory conditions under regulation 173 for reasons given in paragraph (4) of the affidavit reproduced supra and, by so doing, gave cause to the High Court to strike out the appeal on 15 November 1961. Thereafter there was no appeal pending before the High Court.

[p.339] of [1965] GLR 334

Be that as it may, on 8 October 1962, the learned judge of the appellate High Court restored to the list the appeal which had previously been struck out, on the application of the defendant, in a ruling which, as a matter of convenience, is hereunder set out:

“This is an application by the defendant-appellant herein praying for an extension of time within which to fulfil the conditions of appeal. He had filed the notice of intention to appeal in time but failed to fulfil the statutory conditions within time. In accordance with regulation 180 (1) of the Local Courts Procedure

Regulations, therefore of my own motion I struck out the appeal in chambers. That was in November 1961.

The defendant-appellant has now come and is asking this court to allow him to appeal out of time on the ground that he had been taken ill at that time and he had now recovered.”

Pausing here for a moment, it is significant to note that the learned judge misconceived the application which was before him. It was not an application by the defendant “to appeal out of time,” but an application “for an extension of time within which to fulfil the conditions of appeal” as correctly stated in the early part of his ruling. He then continued:

“I have the power to restore this appeal to the list as if it had never been struck out. Regulation 180 (3) reads:

‘(3) Within one month of the date of the order striking out the appeal, an Appeal Court may for good cause shewn and on the motion of the appellant order that an appeal which has been struck out under sub-regulation (1) hereof for non-compliance with the requirements be restored to the list upon such terms and conditions as may be thought just and such appeal shall thereupon proceed and be set down for hearing as if it had not been struck out.’ In this case one month has long passed. But it seems to me upon a closer study of the first proviso to regulation 180 (1) that I was wrong in striking out the appeal without first hearing the appellant. Regulation 180 (1) and the first proviso read: ‘An Appeal Court of its own motion as soon as may be convenient after the receipt of the Notice of Intention to Appeal and unless it shall for good cause shewn extend the period of one month within which the requirements of these regulations are to be complied with (which power of extension is reserved to the Appeal Court) shall upon being satisfied that the appellant is not entitled to appeal or that the requirements have not been complied with, order the appeal to be struck out: Provided that no order shall be made striking out an appeal on the grounds that

[p.340] of [1965] GLR 334 the appellant is not entitled to appeal unless the appellant has been given an opportunity to be heard thereon.’

The appellant has now been given an opportunity to be heard. I therefore think that I can make the order restoring the appeal for good cause shown. In this application the defendant-appellant says that he was ill. I am not prepared to disbelieve him. I think he should not be penalised because he has been ill. I will not shut him out from exercising his right of appealing. But I have to do so upon terms.

In the result I will grant the application – restore the appeal to the list, and grant the appellant until 31

October 1962, in which to fulfil all the conditions of appeal.”

It will be observed, from the ruling supra, that the learned judge’s application of the first proviso to regulation 180 (1) is founded on a wrong basis. He was wrong in stating that. “I [the learned judge] was wrong in striking out the appeal without hearing the appellant.” But an examination of the record shows that the defendant’s appeal was struck out by the High Court for non-compliance with the statutory conditions prescribed in regulation 173; and not that the defendant was not entitled to appeal. The High

Court was therefore perfectly entitled to deal with the matter, ex proprio motu, and without an opportunity being given to the defendant to be heard because it was satisfied that the conditions laid down in regulation 173 had not been fulfilled. The law is now too settled to admit of any doubt that party who is aggrieved by a judgment of a court has no inherent right to appeal against that judgment. All appeals in this country and elsewhere exist merely by statute: see Ohene Moore v. Akesseh Tayee.3 When a statute conferring the right lays down condition precedent to the vesting of that right in a party it is absolutely essential that all those statutory conditions are fulfilled; otherwise the right does not become vested. Consequently no jurisdiction will be given to any court of appeal to entertain the appeal: see Frimpong v. Poku.4

It is therefore a fundamental pre-requisite to the exercise of the jurisdiction conferred upon the High

Court by regulation 180(1) that the application for the order to restore the appeal to the list must be made to it within one month from the date of the order striking out the appeal. But the record clearly shows that the learned judge rightly remarked that “one month has long passed” before the defendant made his application to the High Court. The belated act of the defendant did not confer jurisdiction on the High

Court to entertain

[p.341] of [1965] GLR 334 the application. It follows therefore that the purported act of the learned judge in restoring the appeal to the list was an act in excess of his jurisdiction and is therefore null and void and of no effect.

In our view, the striking out of the appeal on 15 November 1961, determined all the proceedings in the

High Court, including the notice of intention to appeal which was lodged within the time allowed for that purpose by law. It follows that there was no appeal properly before the High Court; therefore the judgment it delivered is null and void and cannot stand.

For these reasons we will allow the appeal, set aside the judgment of the High Court including any order as to costs and restore the judgment of the local court.

DECISION

Appeal allowed.

E. A. -A.