AKUNTO AND OTHERS vs. FOFIE AND ANOTHER [1973] 1 GLR 81

CASES REFERRED TO

(1) Ofuman Stool v. Nchiraa and Branam Stools (1957) 2 W.A.L.R. 229, W.A.C.A.

(2) Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44.

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

(4) Quartey-Papafio v. Laryea (1936) 3 W.A.C.A. 118.

(5) Yeboa v. Bofour [1971] 2 G.L.R. 199, C.A.

(6) Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73. (7) R. v. Gyamfi [1960] G.L.R. 45, C.A.

[p.83] of [1973] 1 GLR 81

NATURE OF PROCEEDINGS

APPEAL from the decision of a Kumasi High Court setting aside an auction sale by virtue of a Court of Appeal decision in favour of the respondents. The facts are fully stated in the judgment of Koi Larbi J.S.C.

COUNSEL

Dr. Seth Twum for the appellants.

C.F. Hayfron-Benjamin for the respondents.

JUDGMENT OF KOI LARBI J.S.C.

Koi Larbi J.S.C. delivered the judgment of himself and Archer J.A. In December 1961 the respondents in this appeal instituted proceedings against the appellant Opanin Kwame Akunto, a licensed moneylender for a declaration that a moneylending transaction between the parties was harsh and unconscionable and should be re-opened under the Loans Recovery Ordinance, Cap. 175 (1951 Rev.). The High Court sitting at Kumasi on 20 June 1963, dismissed the respondents’ claim. They then appealed to the Court of Appeal and won the appeal on the ground that not only was the transaction harsh and unconscionable but also on the ground that the moneylender had transgressed certain provisions of the Moneylenders Ordinance, Cap. 176 (1951) Rev.), and therefore the whole moneylending transaction and the mortgage executed by the respondents were void. It was therefore held that the respondents were entitled to recover two cocoa farms which were mortgaged to secure the loan and also to cancel the mortgage deed. Before the Court of Appeal delivered its judgment in Fofie v. Akunto, Court of Appeal, 4 December 1967, unreported and unknown to the court, the appellant, who did not appear during the hearing of the appeal, had instructed a licensed auctioneer, one Wiafe-Akenten, to sell the two cocoa farms by virtue of a power of sale vested in the mortgagee. The auctioneer then sold the properties to one Yaw Krah for £G740 on 24 July 1963. The sale was never brought to the notice of the Court of Appeal.

As a result of the judgment of the Court of Appeal, the respondents sued the moneylender, the auctioneer and the purchaser at the Kumasi High Court, for an order setting aside the auction sale on account of fraud or in the alternative by virtue of the Court of Appeal decision in favour of the respondents. On 4 July 1969 the learned trial judge after hearing evidence from all the parties concluded his judgment as follows:

“The third defendant, in my judgment, is clearly a bona fide purchaser without notice of any want of title in the first defendant. That position however, cannot in the light of the determination of the Court of Appeal as to the effect of the mortgage transaction, protect his purchase and he is affected adversely by the want of validity of the transaction. In this respect it matters not that he was not a party to the previous proceedings since his title is derived from the first defendant.

The plaintiff is therefore entitled to judgment for an order setting aside the sale of his farm at Sabronum on 24 July 1963 to

[p.84] of [1973] 1 GLR 81 the third defendant. The plaintiff is further entitled to an order for an account of the proceeds of the farm by the third defendant with effect from the date of purchase.

With regard to the claim for damages for trespass that claim cannot succeed against the first or second defendant since they were not shown to be in possession of the farm, and it must fail also against the third defendant because I do not see that trespass is the appropriate remedy in the particular circumstances.”

After the sale, the purchaser was put in possession and according to his own evidence in the court below, he had plucked twenty loads in the first year, 25 in the second year, 30 loads in the third year, 30 loads in the fourth year and twenty loads at the time of the litigation. It is clear from the judgment that if the respondents were to recover possession of the farms, they had to go after the purchaser. They were also entitled to an account from the purchaser.

When the notice of appeal against the judgment of the court below was filed on 10 July 1969 it was thumbprinted by the moneylender Akunto for and on behalf of the second and third appellants, that is, the auctioneer Wiafe-Akenten and the purchaser Yaw Krah. On the first day of the hearing, Dr. Seth Twum was asked by the court to state on whose behalf he was appearing. At first, he was not sure but later announced that he was appearing for all three appellants. At the resumed hearing, Mr. Hayfron-Benjamin raised a preliminary objection on the ground that the second and third appellants had not signed the notice of appeal. The objection was upheld because there was no evidence that the moneylender Akunto was the legal representative of the auctioneer and the purchaser.

Rule 1 of the Supreme Court Rules 1962 (L.I. 218), defines appellant to mean the party appealing from a judgment and includes his legal representative. Rule 4 also provides that, “In all proceedings before the Court the parties may appear in person or be represented and appear by a lawyer.” It seems to us that the expression legal representative is therefore not confined to lawyers. For instance, it may include a director or secretary or duly authorised agent representing a corporation or an occupant of a stool representing a traditional area or a head of family representing the members of a family. Nevertheless, in all such cases, the representative must be someone legally recognised by the law as capable of representing the party. A person holding a power of attorney may, subject to certain exceptions, be the legal representative of a party. But in Ofuman Stool v. Nchiraa and Branam Stools (1957) 2 W.A.L.R. 229, the West African Court of Appeal held that the class of persons who may be appointed by a stool for the purposes of litigation was strictly limited and therefore a person outside that class who even had valid powers of attorney could not be heard. It is therefore not enough for any person to come to this court and allege that he is the legal representative of a party.

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He must not only satisfy the court that he has been duly authorised but also whether in law he could represent the party.

The practice in this court as I have always seen it is that lawyers may sign the notice of appeal for their clients if they have authority to do so. This authority will be presumed until the contrary is proved in which case the lawyer may face the legal consequences according to the ethics and etiquette of the legal profession. It is convenient for a lawyer to sign one notice of appeal where there are several appellants whom he represents. But where the lawyer does not sign, then each party who is dissatisfied with the decision of the court below must sign and file a notice of appeal. His signature, mark or thumbprint or any indication to that effect must appear on the notice of appeal. There are cases, where one or more of joint and several defendants may be dissatisfied with a decision but may not wish to appeal because it is not worth the trouble. Should the courts permit the other defendants or one of them to sign the notice for and on behalf of those unwilling to appeal? I think it would be monstrous to permit such a course. What happens, if the appeal ends unsuccessfully and costs are awarded? Certainly, it would be open to some of the defendants to refuse to pay the costs because they never appealed and were not parties to the appeal.

We do not think any practice direction is necessary in such matters. Common sense dictates that an aggrieved party may authorise his lawyer or his legal representative to sign the notice of appeal. If that is not done, then an appellant must sign and file a notice of appeal. If that is not done, then an appellant must sign and file a notice of appeal so as to bind him as a party to the proceedings. See Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44 and Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A.

In the present appeal, the second appellant, the auctioneer, and the third appellant, the purchaser, never signed the notice of appeal and there was no indication that they had appointed the first appellant as their lawful attorney to sign the notice. Moreover, the bond for costs on appeal was never executed by the second and third appellants. Only the first appellant together with two other sureties executed the bond. We were, therefore, not satisfied that A. Wiafe-Akenten and Yaw Krah as second and third appellants had appealed. We therefore refused to hear learned counsel on their behalf.

The next point was whether the first appellant could be heard as an appellant. There is no doubt that when he signed the notice of appeal he thumbprinted the form and added the following qualification “for and on behalf of the second and third appellants herein.” There is no indication that he signed for himself and the others. On that ground alone, we could have refused to hear the appellant but considering the fact that the notice was typed by a licensed letter writer perhaps uninitiated into the art of preparing notices of appeal, and coupled with the fact that he signed the bond as appellant, we decided to ignore

[p.86] of [1973] 1 GLR 81 this patent defect and to hear him as the only appellant before the court.

The additional grounds filed were that the learned trial judge erred in law by:

(a) Ordering the setting aside of the sale of the farm in dispute to the third appellant.

(b) Declaring that the plaintiff is entitled to an order for an account of the proceeds of the said farm by the third defendant.

Learned counsel for the appellant was asked whether he thought these grounds were open to the appellant. He submitted in answer that the previous judgment of the Court of Appeal was different from the judgment in the present case of the court below. He explained further that in the Court of Appeal’s decision only the appellant and the respondents were parties, whereas in the court below the parties were different because there were two more defendants. Moreover, in the first suit, the subject-matter was for the re-opening of the loan transaction but in the second suit, the respondents sought to set aside the sale. Therefore res judicata was not applicable.

We are not convinced by these arguments. The true and only argument which the appellant sought to pursue was that as the learned trial judge had found that Yaw Krah was a bona fide purchaser for value, he was protected by section 23 of the Moneylenders Ordinance, Cap. 176 (1951 Rev.), and therefore he could keep the two farms he bought at the public auction. It seems to us that this statutory protection was enacted for the benefit of Yaw Krah, the purchaser who has not chosen to appeal against the decision for various reasons known to himself. Section 23 was not passed for the benefit of moneylenders whose moneylending transactions are declared by the courts to be either illegal, void or unenforceable. The section was passed to protect innocent purchasers of securities without notice of any legal defect in the title of their vendors. After having held that Yaw Krah was not before the court as an appellant, it would be wrong to permit the present appellant to advocate the cause of Yaw Krah. The previous decision of the Court of Appeal was to the effect that the present appellant had a void and unenforceable loan transaction with the respondents against whom he could have no legal rights whatsoever. The judgment of the court below ordered recovery of possession and account of proceeds from the two farms. The order as a whole was directed against Yaw Krah. The present appellant is not in possession and has not collected any income from the farms. We therefore fail to see how he in particular can be dissatisfied with the judgment of the court below.

Learned counsel for the appellant urged the court to invoke the proviso to rule 11 which enables the court to direct notice to be served on all parties or any parties to the action. In other words, the court should invite the purchaser to be heard. We are firmly opposed

[p.87] of [1973] 1 GLR 81 to such move. When litigants by their actions and conduct prove that they are no longer interested in litigation in which judgment has been delivered against them, we think it would be gross officiousness on the part of the court to go abegging these litigants to appear before them. What happens if the notice is served on the purchaser and he fails to appear by disregarding the notice? Have we not made a mockery of the court and its dignity? We think the proviso to rule 111 can be applied in appropriate cases. But the course proposed by the learned counsel for the appellant is not what was envisaged by the proviso to the rule.

The appeal is, therefore dismissed.

JUDGMENT OF SIRIBOE J.S.C.

Having failed in my humble, but genuine effort, to persuade my two brothers to reason with me in the course which I think the justice of this case requires to be taken in coming to a decision, I have had to go it alone for the reasons I am about to state in support of my dissent from their judgment just read.

Some time in December 1961 the respondents instituted an action (civil suit No. 208/61) in the High Court, Kumasi, against the first appellant, Kwame Akunto. The claim was for the re-opening of a loan transaction between the respondents as mortgagors and the first appellant as mortgagee, the subject-matter of the security being two cocoa farms. It is interesting to note that although the deed covering the transaction shows that it was entered into on 24 May 1961 the action was not taken until after there was a default to repay the amount due, and the mortgagee had caused notice of demand to be served on the respondents warning them that a sale of the farms would take place if repayment was not made within a month. The notice was dated 5 December 1961. On 28 June 1963 the High Court, Kumasi, in a reasoned judgment it gave, dismissed the respondents’ claim. The court then held that the mortgage deed represented the true transaction between the parties as to the amount of loan and interest stipulated therein, and that a copy of the deed was given to the respondents. Four years later, this judgment was reversed by the Court of Appeal in its judgment dated 4 December 1967 in which the court ordered that the respondents were entitled to recover the two cocoa farms mortgaged.

Pausing here for a moment, it is to be observed that the order of the Court of Appeal was one which could not have been made, because, at the time it gave its judgment, the two farms had long ago been sold at a public auction soon after the High Court’s judgment, the purchaser thereof, being the third appellant in the present proceedings or appeal. It is said that the Court of Appeal at the time it delivered its judgment on 4 December 1967, did not know of the sale which had taken place. That may well be so, but the fact that the first appellant then as respondent did not appear at the hearing, should not have prevented the mortgagors then as appellants or their counsel, from bringing it to the notice of the court. That they were in possession of

[p.88] of [1973] 1 GLR 81 that fact is made clear from a ruling on the application they made in the court below subsequent to the sale. It reads thus:

“23.9:63 Dwira for applicants.

Lutterodt for respondent.

Dwira—I move in terms of motion paper and affidavit. Recites the facts. I asked for sale to be set aside. I am not able to say whether purchaser knew of this application.

Lutterodt—I oppose the application. It is not a proper application.

Dwira—Purchaser has notice.

Court: The sale of the cocoa farms was not an issue before the court. The defendant exercised his powers under the deed of mortgage as he was entitled to do, backed by the judgment of this court which dismissed the plaintiffs’ claim.

I cannot see any ground on which the sale can be set aside against a purchaser who from all accounts must be a bona fide one. I think this application was entirely misconceived and ought to be and is refused with five guineas costs.

(Sgd.) F. K. Apaloo J.”

It is right therefore, I think, to point out that the present respondents cannot be said to be free from blame in the failure to bring to the notice of the Court of Appeal, the true position with regard to the farms at the time the court delivered its judgment and made that controversial order. While the affidavit accompanying the application referred to makes it clear that the auction sale took place on 24 July 1963, there was nothing to show that the purchaser was in any way aware of an appeal against a judgment or an application for stay of execution in connection with the subject-matter of the said sale. In the event, having regard to the circumstances disclosed, that order cannot bind the third appellant, who, quite obviously, was an innocent purchaser for value without notice.

Except for the right or authority under which the sale was carried out, the case appears to be similar to that of Quartey-Papafio v. Laryea (1936) 3 W.A.C.A. 118 at p. 119. There, the sale was by public auction under a writ of fi. fa. levied in execution on the land, subject-matter in dispute, before a judgment on appeal in respect of the land was delivered. In a subsequent action by the successful party to recover the land from the purchaser Laryea, it was held that the latter had obtained good title to the land.

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Bringing the circumstances nearer home to a sale conducted under a deed of mortgage as in the present case, it is also right to say that the purchaser was protected by the proviso to section 23 (1) of the Moneylenders Ordinance, Cap. 176 (1951 Rev.), exhaustively considered in Yeboa v. Bofour [1971] 2 G.L.R. 199 at p. 224, C.A. There, in dismissing the cross-appeal of the plaintiff mortgagor to recover the mortgaged property from the purchaser the court held:

“In this case the learned circuit judge found as a fact that the third defendant was a bona fide purchaser for value without notice of any defect in the first defendant’s title. It follows, therefore, that the third defendant acquired a valid title to the house, notwithstanding any defects in the title of the first defendant due to the operation of the Moneylenders Ordinance. The cross-appeal accordingly fails.”

The decisions in the above cases notwithstanding, the respondents in the present proceedings sued the three appellants, i.e. the mortgagee, the auctioneer and the purchaser in the High Court, Kumasi. The claim in that suit numbered as L.C. 15/1964 and filed on 23 July 1964 was against the three jointly and severally, for an order setting aside the sale of the farms on the ground of fraud in the manner of the sale. After obtaining an order restraining the third appellant (the purchaser) from “mortgaging, selling or letting out the subject-matter of the auction sale pending the hearing of the suit,” it appears no further step was taken in connection with the case. The order, as stated, was made on 9 March 1964. No reasons were recorded for that apparent delay between 9 March 1964 and 6 May 1968 when the respondents filed a motion seeking leave to amend the original endorsement on the writ. It seems they were at first not sure of the grounds of their claim, hence the delay to see the outcome of the appeal in the other civil suit No. 208/61. This view is supported by the fact that the amendment sought, based the claim for the setting aside of the sale on the judgment given by the Court of Appeal in Fofie v. Akunto, Court of Appeal, 4 December 1967, unreported, in which it was ordered that the respondents recover the mortgaged farms. There were two other reliefs sought in the amended endorsement, namely, account of the proceeds of the farms to be rendered by the first and third appellants, and damages for trespass.

Two of the issues set down for trial which are of some importance to this judgment are:

“(1) Whether or not the third defendant is a bona fide purchaser of the farms for value without notice.

(2) Whether or not the stay of execution referred to prevents the first defendant from exercising his right of sale under the mortgage.”

As to issue (2), the evidence is clear that the motion for stay was argued and lost on the ground that it was misconceived, against which

[p.90] of [1973] 1 GLR 81 ruling there was no appeal. At any rate, the sale preceded the hearing and there was perhaps nothing to stay other than costs which was not what was asked for.

On issue (1), there is nothing on record which points to the contrary that the third appellant was a purchaser for value without notice. It was so found by the learned judge as did Apaloo J. (as he then was) in the ruling given in the previous civil suit No. 208/61. After considering the evidence as a whole in the instant case, the learned trial judge held: “The third defendant in my judgment is clearly a bona fide purchaser without notice of any want of title in the first defendant.” His judgment became questionable from what followed thereafter when he said:

“That position however, cannot in the light of the determination of the Court of Appeal as to the effect of the mortgage transaction, protect his purchase and he is affected adversely by want of validity of the transaction.

In this respect it matters not that he was not a party to the previous proceedings since his title is derived from the first defendant.”

Accordingly, he gave judgment in favour of the respondents, set aside the sale of the farms to the third appellant with an order that he should account for the proceeds with effect from the date of purchase. The claim for damages for trespass was disallowed as not being the appropriate remedy in the circumstances of the case.

It is obvious that the person directly affected by the judgment is the third appellant, who, from the earlier passage of the learned judge’s finding, is altogether blameless. In my opinion, the learned judge should have approached the case as one independently brought before him and have given his decision on it as he thought the circumstances of the case merited. He erred by basing his decision on the Court of Appeal’s judgment as if it were a command to him to be obeyed. By so doing, he deprived the third appellant of the protection to which he is obviously entitled, both by statute and judicial pronouncements to which I have earlier on referred. The third appellant’s protection does not derive from the fact that he was not a party to the previous proceedings in civil suit No. 208/61 as commented upon by the learned judge. Evidence dealing with that part of the proceedings, was introduced simply to draw attention to the fact that at the time the decision in civil suit No. 208/61 was given together with the controversial order upon which the learned judge relied in his judgment, the mortgaged properties had changed hands, and that the purchaser was unaware of the order. What was important for the learned judge to have considered was whether the third appellant as purchaser, was aware of any defect due to the operation of the Moneylenders Ordinance, Cap. 176 (1951 Rev.). If not, then it is right to say that he was protected under the proviso to section 23 (1) of the Ordinance. Throughout the proceedings I have been unable to trace any evidence which even suggests such awareness on his part, or

[p.91] of [1973] 1 GLR 81 that he was guilty of fraud as alleged in the respondents’ unproved amended endorsement of the writ.

The appeal from the judgment in question to this court has been resisted and upheld by the majority decision on the objection taken by counsel for the respondents. The ground of objection as I understand it, is that only the first defendant, the mortgagee, thumbprinted the notice of appeal on which was stated “for and on behalf of the second and third appellants herein.” Reference was made to the definition of appellant as contained in the Supreme Court [now Court of Appeal] Rules, 1962 (L.I. 218), r. 1 in support of the objection. It was to the effect that by rule 1, an appellant means the party appealing from a judgment and includes his legal representative. There being no evidence that the first appellant is the legal representative of the second and third appellants, it was contended that the former was not entitled to thumbprint the notice of appeal on their behalf. With respect, I am not impressed by that objection or the submissions in support of it. This position I made clear in open court when we resumed after retiring to consider the objection so taken. In my view, the appeal before the court quite rightly covers all the three appellants, who were parties to the original proceedings in the High Court from which this appeal emanated.

The first question to be considered, is the stage at which the objection was taken, and whether in view of what had transpired before then, counsel for the respondents was entitled to. In other words, whether he had not waived his right, if any, to take that objection as he did. It cannot be denied that when the appeal was called, counsel for the appellants announced himself as appearing for all the three appellants. He, thereafter, sought leave which was granted without objection to argue the additional grounds prepared and signed by counsel on behalf of all three appellants. In fact, the reply by counsel for the respondents as to whether they had been served with the additional grounds, was that they had been, and had no objection, which means no objection to the grounds being allowed or granted to be argued.

Counsel for the appellants then opened up and was in the process of arguing the appeal, when his attention was drawn to the case of Yeboah v. Bofour (supra) by a member of the court, which case decided a purchaser’s right of protection in respect of a sale carried out under the Moneylenders Ordinance, Cap. 176 (1951 Rev.), the proviso to section 23 (1) thereof. As counsel did not appear to have read it, nor had copies of the of the judgment available at the time, the court adjourned to another date. It was at the resumed hearing that the objection in question was taken.

It seems to me that the first thing counsel who has been briefed to prosecute or defend an appeal ought to do, is to examine the notice of

[p.92] of [1973] 1 GLR 81 appeal and the grounds filed, to satisfy himself as to whether everything appearing thereon is in order. Where a defect is detected, and he is for the appellant, he should take steps to remedy it at the proper time, that is, before he begins to argue his appeal. On the other hand, if he is for the respondent and the defect is one which should be taken in limine, he should do so before his friend on the other side begins his argument. In this case, the objection taken is in respect of the notice of appeal, and counsel cannot be said to have been unaware of it before coming to court. If he thought there was anything wrong with it as he now complains, he had ample opportunity of bringing it to the notice of the court, earlier as stated, but not to acquiesce in it to the extent of even agreeing to leave sought to argue additional grounds filed in pursuance of the said notice of appeal. In my view, that was a clear indication that if there was any defect, counsel had waived his right to object to it, and cannot be allowed to do so at a later stage.

But what seems to me of vital importance to be considered is whether the defect is so fundamental as to render invalid the notice of appeal in so far as the second and third appellants are concerned. Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44 and Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A. in the majority judgment, although they are decisions of the West African Court of Appeal, do not apply here. They are decisions based on the old Native Courts (Colony) Procedure Regulations, 1945 (No. 11 of 1945), Vol. VIII (1954 Rev.), p. 737. As the title implies, they were intended to regulate procedures in courts at the lower rung of the judicial hierarchy or ladder, and could not in the circumstances apply to the court at the apex, whose rules are entirely different from those regulations of 1945. In the present case, the rules applicable are the Supreme Court Rules, 1962 (L.I. 218).

Throughout the rules in question, there is no provision thereof, which specifically requires or states that the appellant himself or his legal representative should sign or thumbprint the notice of appeal as the case may be. Rule 8 which regulates the filing of a notice of appeal and the grounds in support of the appeal does not say so. It is only by looking at civil Form 1 of the First Schedule to the Rules, at the bottom of the right hand corner where the word “appellant” is put, that one may presuppose the requirement exists. But it is a mere supposition and cannot be a strict requirement to be complied with, since rule 7 makes it clear, that the forms set out in the schedules to the rules, or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable. It follows therefore, that the forms are not absolute, and that in the special circumstances of this case, where all the three defendants were sued jointly and severally to recover properties sold on the instructions of the first appellant by the second appellant and purchased by the third appellant, there can be nothing wrong in the first appellant filing a notice of appeal on behalf of all in respect of a decision given against them. Another factor is that they were all represented by one counsel in the court below just as in this court. If

[p.93] of [1973] 1 GLR 81 there was a defect, at all, it was procedural, which I think was cured by the leave granted by the court to counsel for the appellants to argue the additional grounds without any objection by the other side.

In Armar v. Armar, Court of Appeal, 21 April 1969, unreported, digested in (1969) C.C. 73, the point taken on the appeal was to the effect that the divorce petition was not signed by the petitioner but by his solicitor, and therefore, did not conform to Order 55, r. 4 (5) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The subrule states that: “Every petition shall, unless otherwise directed, be signed by the petitioner.” It was on the ground aforesaid, contended that the petition was a nullity and everything which flowed upon it, including the decree was equally void and of no effect. Amissah J.A. who read the judgment of the court, reviewed a number of cases dealing with defects which are so fundamental as to amount to a nullity, and those which are mere irregularities capable of being cured. The review covered Order 70, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which in his view, was a hurdle to be cleared by counsel for the appellant in that appeal, if his argument was to prevail. For, said the learned judge, “if a defect is an irregularity which is curable then the proceedings will be saved under this rule,” meaning Order 70, r.1 above. Before concluding the judgment which dismissed the appeal the learned judge held: “Although I agree that there was a defect I am unable to conceive of it as so fundamental as to vitiate the proceedings in this case. It was a defect of a nature amply catered for by Order 70.” Order 70, r. 1 referred to, states:

“Non-compliance with any of those Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”

Admittedly, we have no rules in the Supreme Court Rules, 1962 (L.I. 218), couched in the same words as Order 70 above, but there are provisions contained in the former which, in my view, have an effect similar to the latter. The provisions I have in mind can be found in rule 11 the proviso thereto, and rule 32 of the Supreme Court Rules (supra). Rule 11 and the proviso to it provide that:

“The Registrar of the Court below shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected:

Provided that the Court may direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just, and make such order as might have been made if the persons served with such notice had been originally parties to the appeal.”

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Rule 32 also provides that:

“The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

It seems to me that if the notice of appeal in question is said to be defective, the defect, in my opinion, is not as so fundamental as to prevent the court from acting upon the notice on behalf of the other defendants particularly, the third defendant, who is directly affected by the judgment appealed from. The defect is of a nature amply catered for by the combined effect of the provisions of rules 11 and 32 quoted above, and as was held in Armar v. Armar (supra), I would say that the objection taken on it fails.

The question which now arises is, what should be done then, and to that I would say this: From the majority decision, it is appreciated that the learned judge’s order is “as a whole directed against the third defendant purchaser.” That being so, it was for the court to hear arguments on behalf of all three on the notice filed. Failing that, the court should have granted the application legitimately made by counsel for the appellants under rule 11 and the proviso thereto, for the third defendant to be served with a copy of the notice of appeal, if the court was not satisfied that the one filed by the first appellant covers him. Another alternative is to exercise the powers provided under rule 32. But as the decision of the majority states at p. 87 post:

“When litigants by their actions and conduct prove that they are no longer interested in litigation in which judgment has been delivered against them, we think it would be gross officiousness on the part of the court to go abegging these litigants to appear before them.”

With great respect, that was an unfortunate expression, since it failed to take into consideration fully the circumstances which led to the application and the rule under which it was made. Bringing in a party to an action who, circumstances show, would be affected by the appeal emanating from that action, in my view, does not amount to gross officiousness on the part of the court because it savours of going abegging. On the contrary, it is aimed at doing justice to the case as we are often reminded of. The late Lord Hewart, Chief Justice of England, in enunciating a fundamental principle for the guidance of all those who administer the law said: “It is of the utmost importance not only that justice should be done, but that it should manifestly and obviously been seen to be done.” Quoted with approval by Granville Sharp J.A. in R. v. Gyamfi [1960] G.L.R. 45 at p. 52, C.A.

[p.95] of [1973] 1 GLR 81

It follows, therefore, that as it is obvious from all accounts that the third appellant was a purchaser for value without notice of any defects in his vendor’s title due to the operation of the Moneylenders Ordinance (supra) he is entitled to the protection afforded by that Ordinance. The learned judge was in the circumstances wrong in depriving him of that protection, by relying on the judgment in the previous civil suit No. 208/61 which in my view, did not affect the purchase. I would therefore in the interest of justice allow the appeal, set aside the judgment appealed from, together with the consequential orders made including that as to costs. I would award costs only in favour of the third appellant in this court at ¢224 and in the court below ¢126.00. I further order that if any amount has been paid by him by way of accounts or costs ordered by the trial court, such amount should be refunded to him.

DECISION

Appeal dismissed.

S. O.