YEGBOR PER SAMLAFU IV v. DORGAH PER ADJORBLE II [1963] 1 GLR 42

DIVISION: IN THE HIGH COURT, HO

DATE: 31ST JANUARY, 1963

BEFORE: SIRIBOE J.

CASES REFERRED TO

(1) Muffatt v. Tetteh Kpeshie II (1952) 14 W.A.C.A. 44

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

(3) Adzado v. Bebi (1957) 3 W.A.L.R. 262

(4) Crawcour v. Salter (1881) 30 W.R. 21; 18 Ch.D. 30; 52 L.J.Ch. 495; 45 L.T. 62, C.A.

(5) Re Securities Insurance Co. [1894] 2 Ch. 410; 63 L.J.Ch. 777; 7 L.T. 609, C.A.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION. The defendant-respondent in an appeal from a judgment of the Tongu

District Native Appeal Court delivered on the 26th February, 1958, raised a preliminary objection that the appeal was not properly before the court since the notice of intention to appeal was not signed by the accredited representative of the plaintiff-appellant.

COUNSEL

Wuaku for the respondent.

Ofori Atta for the appellant.

JUDGMENT OF SIRIBOE J.

When this appeal came up before the court on the 29th November, 1962, counsel for the defendant (respondent herein) raised a preliminary objection that the appeal was not properly before the court. He referred to the notice of intention to appeal filed on the 28th February, 1958, against the decision given on the 26th day of the same month, and said that notice of intention to appeal was not signed by the proper person entitled to do so, as required by the provisions of section 22 of the Native Courts Ordinance,1 and regulation 118 (1) and (2) of the Native Courts Procedure Regulations2 made under that Ordinance, which applied to the appeal.

Section 22 of the Native Courts Ordinance provides as follows:

“No legal practitioner or attorney may appear or act for or assist any party or act in any cause or matter before a Native Court or in any cause or matter removed from a Native Court by appeal or otherwise, except in the case of such said removal, by the leave of the Court and subject to the provisions of the Legal Practitioners Ordinance relating to such appearance; but a Native Court may in its discretion permit the husband or wife, or guardian, or any servant, or the master or any inmate of the household of any party who shall give satisfactory proof that he or she has authority in that behalf, or a relative of a person administering the estate of a person who was subject to the jurisdiction of a Native Court, to appear for such party.” Regulation 118 (1) also provides as follows:

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

The appropriate form is Form 20 of the Schedule which states:

“To the Registrar of the (Native) Court.

TAKE NOTICE that I, being a party to the above cause was decided by the ………… Native Court on the …. day of …. 19 …… and being aggrieved by the said decision do intend to appeal to the … Court. Dated at ………………………… this …… day of ……………… 19…… …………………………………;

Appellant’s Signature.”

The proper person, counsel argued, was Samlafu IV whom the real plaintiff (appellant herein) authorised to represent him in the proceedings before the native court. E. K. Torkla, who signed for Asafohene Samlafu IV, had no authority to do so; and as such, there was no notice of intention to appeal properly filed, resulting in no appeal having been brought at all.

Counsel relied on the following cases: Nii Kpakpo Muffatt v. Nii Tetteh Kpeshie II3 where the court held that since no notice of intention to appeal had been filed within the proper period, the appeal court could not exercise its discretion to enlarge the time to appeal because of lack of jurisdiction to do so; Makata v. Ahorli,4 where it was hold that where more than one person seek to appeal, those who failed to sign the notice of intention to appeal are deemed not to have appealed because, the others who signed not being solicitors, could not act for them; and Adzado v. Bebi,5 where it was also held that the appellate court had no jurisdiction to hear the appeal as no notice of intention to appeal had been duly filed. What I gather from the authorities cited is that the requirement as to the filing of the notice of intention to appeal must be duly complied with in order to vest the appellate court with jurisdiction to entertain the appeal, or to enable it to exercise any discretion in respect of the appeal.

In the present appeal, what is to be considered is, whether the notice of intention to appeal in question, though filed within time, but not having been signed by the appellant himself, or his accredited representative Samlafu IV, can be regarded as properly filed to vest the court with jurisdiction over the appeal.

It has been urged on behalf of the appellant that the words “Any person wishing to appeal” used in regulation 118 already referred to, mean exactly what those words say: no more, no less. Developing his argument on this point, counsel for appellant made reference to the Annual Practice (1962 ed.), Vol. 1, p. 1658 under the heading, “Who may appeal,” with a submission to the effect that a person who is not a party to the original

[p.46] of [1963] 1 GLR 42 dispute, may appeal if he has got an interest in the subject-matter. This must be by leave of court and that court, counsel argued, means the native appeal court. His further contention was that it must be taken for granted that the leave was granted by that court.

I have looked up the relevant passage of the White Book referred to, but I do not agree with the submission made by counsel. It is there stated as follows:

“Any party to the action may appeal (for example, one alone of several plaintiffs…..) and also any person served with notice of the judgment or order……But in addition in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the Court of Appeal) if he could by possibility have been made a party to the action by service…….”

The latter part was per Jessel M.R. in Crawcour v. Salter.6 The White Book goes on to say that: “It does not require much to obtain leave: a person making out a prima facie case that he is a person interested, aggrieved or prejudicially affected by the judgment or order and should be given leave, will obtain it … but he cannot appeal without it . . .

The authority cited is Re Securities Insurance Co.7

It is perfectly clear from the foregoing passages that the appeal court there referred to, is the court to which the appeal from the decision sought to be appealed against was to be brought, that is, this court, and not the former. Native appeal court whose decision is being challenged. No leave to appeal has been obtained by Torkla from this court. Therefore on the authority of Re Securities Insurance Co. above, my view is that he cannot appeal to this court.

It cannot be denied that Torkla was not a party to the original proceedings-neither have I anything before me to show that he was served with the native appeal court’s judgment of the 26th February, 1958, nor is there anything to show that he could by any possibility have been made a party to the proceedings before the trial court so as to entitle him to appeal to this court by leave of the latter. The other submission is that Torkla failed to make the mark of Samlafu IV on the notice of intention filed, and to sign his Torkla’s name as a witness to that mark, which failure amounted to a mere technical error, and should not be used to prevent the appellant from appealing, once the notice of intention to appeal was filed within the statutory period.

This, in effect, seems to defeat the earlier argument that Torkla must be considered to have appealed, as being a person entitled to do so. In any case, I find myself unable to subscribe to the view of counsel that what appears on the notice of intention to appeal was a mere technical error.

[p.47] of [1963] 1 GLR 42

I am also called upon to exercise my discretion under regulation 180 of the new Local Courts Procedure Regulations, 1962,8 to enlarge the time within which a notice of intention to appeal should be filed in the interest of justice, if I feel that there is a technical error. On the authorities already referred to, it was held the exercise of such a discretion was wrong, because there was no jurisdiction for so doing, there being no appeal properly brought before the appellate court. Therefore, to enable me to exercise my discretion, I must first find out whether the appeal is properly before me, having regard to the notice of intention to appeal filed in connection with it.

Upon a careful consideration of counsel’s submissions and the references made, I am of the opinion that Samlafu IV, the accredited representative of the plaintiff-respondent-appellant, did not file the notice of intention to appeal against the decision of the native appeal court dated the 26th February, 1958, but that E. K. Torkla did so on behalf of Samlafu IV.

There is nothing before me to show that Samlafu IV authorised E. K. Torkla to sign and file on his behalf the notice of intention to appeal in question. On the other hand, if such an authority had even been given at all, it would have been ineffective. This is because, there is nothing in section 22 of the Native Courts Ordinance, Cap. 106, or in the regulations made thereunder, particularly in regulation 118, which entitles an accredited representative of a party to proceedings before a native court (which includes a native appeal court) to appoint or authorise another person to act for him.

In conclusion, therefore, I am of the opinion that the notice of intention to appeal filed is of no effect, not having been signed and filed by the proper person entitled to do so. Consequently there is no appeal properly brought before this court from the decision sought to be appealed against. On the authorities cited, I have no jurisdiction to deal with it, neither can I exercise my discretion under regulation 180 of 1962 to grant the appellant an enlargement of time within which to file a proper notice of intention to appeal.

The objection taken is as to the jurisdiction of the court, which it has been held, can be raised or taken at any stage. In the circumstances, although it appears from the docket that since the filing of the appeal an interim injunction has been granted by Ollennu J. (as he then was) on the 3rd April, 1959, which was recently varied by this court on the 18th September, 1962, both on affidavits sworn to by E. K. Torkla, such steps cannot defeat the objection now taken. The preliminary objection, in my view, succeeds and the appeal not being properly before the court, is accordingly dismissed.

DECISION

Preliminary objection upheld.

Appeal dismissed.

J. D.