“The citation of the correct statutory provision pursuant to which a court process is filed is not a strict rule of procedure, the failure to comply with which will nullify the court process. The courts have a duty to do substantial justice to the parties in every case, so a court is not disabled from hearing a party on the sole ground that he cited the wrong statute in his process. In such cases, the court is required to consider the substance of the case presented through the process and if it alludes to a legal right which avails the party, the court will deal with the merits of the matter.”
Further, the ratio in the case of Republic v. High Court; Ex Parte Allgate Co. Ltd) Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041 is that all breaches of the Rules of Court are curable and may be waived by the Court in the exercise of its discretion except where the irregularities are fundamental and give rise to the determination of foundation issues of jurisdiction and can therefore not be waived, as the Single Justice rightly found. The instances where such breaches or violations of a step in proceedings become fundamental are not exhaustive, but they include situations where there is: i. A breach or a violation that borders on want of jurisdiction of the court. ii. A breach of a statutory provision or an enactment other than a breach of the rules of court; and iii. A breach of any of the constitutional provisions.
Effect of failure to serve a party added to the suit
We are therefore of the opinion that, in the circumstances, the Court properly exercised the jurisdiction given it by Order 16 rule 11, and that the joinder of the defendant was proper. We are further of the opinion that (there being nothing to show that the provision in Order 16 rules 11 and 13 for service of the writ or notice were not complied with, and the defendant having taken part in the proceedings after the order joining her as defendant) it must be presumed that the provisions of the said rules were complied with. In any event, Order 70 rule 1 prevents the non-compliance from making the proceedings a nullity.
Therefore, where an act of non – compliance with the Rules is one which is capable of being waived, the Court of Appeal may exercise a discretion to waive same. The exercise of such discretion is clearly on a case-by-case basis, depending on the nature and effect of the non – compliance. Where the non- compliance goes to jurisdiction or is a breach of the rules of natural justice, or a breach of statute (other than the rules), or an infringement of the constitution, same clearly cannot be waived.
Objection to an irregularity not taken at the first opportunity
As pointed out by Lyndhurst L.C. in St. Victor v. Devereux3(3) “it is a fixed rule of this Court and Courts of Common Law that where an irregularity has been committed and where the opposite party knows of the irregularity, he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. It is not reasonable afterwards to allow the party to complain of that irregularity of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary.”
Striking out a ground of appeal for want of particulars
A ground of appeal, other than the omnibus ground, must give the precise particulars of the error, mistake or misdirection alleged; a ground that does no more than register dissatisfaction with the result, or that quarrels with the facts without identifying the supposed error of law, is defective and liable to be struck out.
The Court of Appeal’s determination that grounds (a) to (d) were inadmissible was premised on Rule 8 (4) of CI 19, which provides as follows: “Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”. The language of Rule 8 (6) states in part, that “…and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent”. This Rule gives the Court of Appeal a discretion to strike out any ground of appeal not permitted by Rule 8 of CI 19.
As a matter of fact, the plaintiff did not provide the details, elements, specifics, or nature of the errors allegedly committed by the Court of Appeal and particulars for the plaintiff’s contention that the Court of Appeal erred when it held that the appellant failed to discharge the burden of persuasion and the evidential burden. We also find as a fact that the plaintiff’s use of the word “when” rendered the same ground 2 argumentative. Accordingly, we find ground 2 as having sinned and in violation of Rules 6 (4) and (5) of CI 16 and we accordingly strike it out for non-compliance with the rules of court.
In our opinion, the consequence for flouting rule 8(4) of CI.19, like rule 6(2)(f) of CI.16, is very grave; that is, striking out the offensive ground of appeal and therefore, there must be a clear violation of the said rule before an appellate court proceeds to strike out a ground of appeal for violating the rule. In the instant matter, the Respondent is accused of stating as a ground of appeal before the Court of Appeal that “the principle of equity pursuant to article 22 of the 1992 Republic Constitution of Ghana was not (respectfully) judiciously applied by the trial High Court Judge”. Although we concede that that ground of appeal could have been couched in a manner more elegant than it was done, we do not think that the ground of appeal offends rule 8(4) of CI.19 as to attract the sanction of having to be struck out by the Court of Appeal for non-compliance with the Rules of Court.
As should be trite amongst practitioners any allegation of a commission of an error of law in an Appellant’s grounds of appeal carries a corollary obligation under Rules 6(2)f of the Supreme Court Rules, 1996 (C.I. 16) to particularize the said error and expatiate on the details of the error. A failure to do so therefore will render a ground of Appeal alleging an error of law inadmissible.
Grounds A, B and C of the Appellant’s Notice of Appeal portray errors which the Appellant alleges the Court of Appeal committed in the course of its determination of the case. A critical examination of these grounds would reveal that whilst grounds A and B border on allegations of factual errors and are therefore not amenable to Rule 6(2)(f), ground C, alleging a misapplication of section 26 of the Evidence Act, is a purely legal ground and thus triggered the obligation on the part of the Appellant to particularize the said error. Having failed to undertake this crucial task, we are left with no option but to strike out the said ground as being non-compliant with the Rules of this Court.
We are of the view that ground 1 of the appeal as set out, failed to particularise the errors alleged by the ground to enable this court to effectively address same as required by law. Accordingly the offending ground (i) of the appeal will be struck out as it is non-compliant with the rules of this court.
we think that having regard to Rule 6, grounds (i) and (iii) as set out above do not comply with the Rules. Clearly, the intention behind Rule 6 is to narrow the issues on appeal and shorten the hearing by specifying the error made by the lower court or by disclosing whether or not a point at issue had earlier on been raised. By that way, both the court and counsel for the respondents would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyer know well in advance what points of law are being raised so that they may prepare their case and marshall their authorities
As the jurisprudence establishes, there is no inherent right for any litigant to appeal, as an appeal is a creature of statute. Therefore, a party who is piqued by a ruling/judgment and desires to appeal against the same must comply with the conditions spelled out by the law regarding an appeal. To that extent, the 1st Appellant is mandated by law to provide particulars of the alleged errors in the grounds of appeal set out in the Notice of Appeal because, without the particulars, the Court is left to speculate as to what the alleged errors are. The allegation of error(s) must be set out in concise, clear, and plain terms as required by the rules. It is not for the Court to speculate and infer. As this Court is bound by its own rules and the decisions of the Supreme Court, the impugned grounds of appeal set out in the 1st Appellant’s Notice of Appeal as grounds (a), (b), (c), (d), (f), and (g) contravene the mandatory provisions in Rule 8(4) of C.I. 19. Consequently, all those grounds of appeal are inadmissible and unarguable as they are not compliant with the rules of court. They are hereby struck out.
