FRIMPONG AND ANOTHER vs. NYARKO [1999-2000] 1 GLR 429

CASES REFERRED TO:

(1) Nye v Nye [1967] GLR 78, CA (full bench).

(2) Moree v Tayee (1934) 2 WACA 43, PC.

(3) Sandema Nab v Asangalisa [1996-97] GLR 302, SC.

(4) Merah v Okrah [1984-861] GLR 400, SC.

(5) West Coast Dying Industry Ltd, In re; Adams v Tandoh [1984-86] 2 GLR 56 1, CA. (6) Jonee v Beard [1930] AC 298.

(7) Asare v Brobbey [1971] 2 GLR 331, CA.

(8) Phillips v Copping [1935] I KB 15; 104 LJKB 78; 152 LT 175, CA.

(9) Orthodox School of Peki v Tawlma-Abels [1974]1 GLR 419, CA.

(10) Cropper v Smith (1884) 26 ChD 700; 53 LJCH 89 1; 51 LT 729, CA.

(11) Republic v Thompson, Supreme Court, Accra, 3 February 1998, unreported.

(12) Republic v High Court, Kumasi, Ex parte Kwadwo Bi, Supreme Court, Accra, 15 July 1998, unreported.

[p.432] of [1999-2000] 1 GLR 429 (13) Okofo Estaees Ltd v Modern Signs Ltd [1996-97] GLR 224, SC.

(14) Goldfields (Gh) Ltd v Anthony, Supreme Court, Accra, 27 October 1998, unreported (15) Moore v Ta.ve (1932) 1 WACA 242.

(16) Dickinson, In re; Ex parte Rosenthal (1882) 20 ChD 315 (17) Ogunmola v Igbo (1941) 7 WACA 137 (18) Botchway v Nasser (1946) 12 WACA 23 (19) Kudiabor v Kudanu (1932) 6 WACA 14 (20) Ololo v LEBD (1950) 13 WACA 57

(21) Darko IX v Darke IV [1984-86] 1 GLR 81, SC

(22) Montreal Street Rail Co v Normadin [1917] AC 170

(23) Ndoley v Iddrisu [1979] GLR 559

(24) Republic v Kumasi Traditional Council; Ex parte Agyeman II [1977] 1 GLR 360

NATURE OF PROCEEDINGS

APPEAL to the Supreme Court against the decision of the judicial committee of the National House of Chiefs allowing the respondent’s appeal from the decision of the judicial committee of the Ashanti Regional House of Chiefs wherein they refused the respondent’s application to strike out the appellants’ action on the ground of lack of capacity to bring the action. The facts are sufficiently set out in the judgment of Acquah JSC.

COUNSEL

E M Edusei for the appellants

S K Amofa for the respondent

JUDGMENT OF EDWARD WIREDU JSC.

The matter before us to which this opinion relates is supposed to be an appeal against an interlocutory order of the judicial committee of the National House of Chiefs. The main issue raised for consideration by the court is whether the petitioners in this case, who are complaining to be aggrieved by that decision, have taken all the necessary steps as required by law to entitle them to a hearing

To answer the above question, it must first be appreciated that the right to appeal against a decision of any lower court is conferred by statute. In other words, the right to appeal is not inherent in any litigant. It is a right conferred by statute. In like manner, a court’s jurisdiction to hear and determine an appeal is provided by statute. In

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Nye v Nye [1967] GLR 76 at 82-83, CA Akufo-Addo CJ liud this to say: “It must be appreciated that there is no right of appeal in a litigant; nor is there an inherent power in any court to hear appeals.” In the case of Moore v Taye (1934) 2 WACA 43 at 45 Lord Arkin wrote:

“. . . is to be remembered that all appeals in this country and elsewhere exist merely by statute and unless the statutory conditions are fulfilled no jurisdiction is given to any Court of Justice to entertain them.”

Lastly, in Sandema Nab v Asangalisa [1996-97] 302 at 307, the Supreme Court had this to say per Acquah JSC:

“Now it must be appreciated that an appeal is a creature of statute . . . where a right of appeal is conferred as of right or with leave or with special leave, the right is to be exercised within the four corners of that statute and the relevant procedural regulations, as a court will not have jurisdiction to grant deviations outside the parameters of that statute.”

In the instant case, the right to appeal from any decision of the judicial committee of the National House of Chiefs lies to the Supreme Court. The Supreme Court derives its jurisdiction to hear appeals of this nature statutorily from the Constitution, 1992. The relevant provisions are: (a) article 131(4) of the Constitution, 1992 which provides that: “(4) An appeal from a decision of the Judicial Committee of the National House of Chiefs shall lie to the Supreme Court with the leave of that Judicial Committee or the Supreme Court;” (b) article 273 (1) of the Constitution, 1992 and section 44 of the Courts Act, 1993 (Act 459). Quite apart from the requirements of the statutory provisions referred to above, there are also rules and regulations governing the procedure for bringing an appeal properly before this court.

In the instant case the Supreme Court Rules, 1996 (CI 16) is pertinent. It provides clear and unambiguous regulations which have to be complied with. These regulations are of two kinds: those that are fundamental and form the basic foundation or the substratum of the appeal and those that can be described as mere irregularities or technicalities. It is the rules in the former category which when duly

[p.434] of [1999-2000] 1 GLR 429 complied with, confer jurisdiction on the court. In other words, this Supreme Court can only be seised with jurisdiction to hear an appeal when the appellant has fully complied with the former category of rules of practice which regulate the bringing of an appeal: see Merah v Okrah [1984-86] 1 GLR 400 at 410.

The rules relevant to the present matter before us are rules 6(1), 7(1) and 7(3) and 8(1)(a) and 8(3) of CI 16 which provide that:

“6. (1) Any appeal to the Court in a civil cause or matter shall be brought by notice of appeal in the Form I set out in Part I of the Schedule to these Rules and shall be filed with the Registrar of the Court below . . .

7. (3) Where leave to appeal is granted the appellant shall file a notice of appeal in accordance with the provisions of these Rules . . .

8. (3) A civil appeal is lodged on the date the notice of appeal filed.”

(The emphasis is mine.)

Non-compliance with statutory rules which are fundamental, mandatory or sine qua non is fatal. The consequences of any default, simply put, is that there will be no appeal before the court, ie the effect will be that the court in question will have no jurisdiction. By section 4 (5) Act 459: “. . . the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Court.” The import of these rules as stated, is that an appeal court can only be conferred with appellate jurisdiction when the appellant complies strictly with all statutory regulations up to the time of filing his notice of appeal.

Having thus examined the substantive law and the effect of non-compliance with the statute law and the procedural regulations above, we can now effectively determine the effect of the present appellants’ position. In other words, whether upon an examination of the particular facts in this case, it can be safely said that an appeal has been brought properly before this court.

The facts which have sparked off the present matter before us have been fully set out in the able opinion of my brother Acquah JSC (ante), which opinion I have had the advantage of reading

[p.435] of [1999-2000] 1 GLR 429 beforehand and I will only resort to the facts where it is necessary to explain a point that is herein raised.

A cursory glance at the appellants’ notice of appeal reveals two glaring defects. The notice of appeal all have two stamps, one from the Court of Appeal registry in Accra and the other from the registry of the judicial committee of the National House of Chiefs in Kumasi. Both stamps having been displayed prominently on the face of the said notice. The stamp for the Court of Appeal registry appears on the orthodox portion of the notice whilst the one from the latter appears on the unusual portion of the notices. Even though the notices were directed to the registrar of the Supreme Court, none of them was filed in that registry. Secondly, both stamps display the same date and a time, that reveal a clear impossibility simply because the two registries are over 200 kilometres away from each other. The question that arises is, in which of the two courts was the notices of appeal filed?

According to the existing law: (1) The Supreme Court has jurisdiction to hear appeals from the National House of Chiefs: see articles 131 and 273 of the constitution, 1992 and also section 4(4) of Act 459; and (2) an appeal is brought by notices of appeal filed with the court below: see rule 6(1) of CI 16. The court below in the instant case is the National House of Chiefs. The Court of Appeal then clearly has no jurisdiction. The court below in this case is without doubt the National House of Chiefs. Unfortunately, the genuineness of the stamp indicating that the notice was filed at their proper place is seriously undermined by the presence of the stamp of the Court of Appeal registry bearing the same time and date.

Indeed, needless to say, the notice of appeal on its face tells lies about itself. This amounts to a forgery or a false instrument which cannot be sustained in any court of law. A document or any part thereof that is made or altered with the intent to cause it to be believed that it was made or alter ed at a time different from that at which it was in fact so made or altered is a forged document: see section 164 of the Criminal Code, 1960 (Act 29). The notice of appeal in the present case contravenes this provision and is therefore invalid and unreliable.

From the above analytical examination of the facts of this case and the law as considered above, the natural and only conclusion is that there is no appeal before the Supreme Court. This is so in view

[p.436] of [1999-2000] 1 GLR 429 of the provisions of rules 6(1) and 8(3) of CI 19. Rule 8 (3) of CI 19 states that a civil appeal is lodged on the date the notice of appeal is filed. As at date, on the facts of this case, there is no proper notice of appeal before the court. The notice of appeal filed in the Court of Appeal puts the appellants out of court and they have no right to be heard in this court. The notice of appeal also contravenes the mandatory provisions of rule 6(1) of CI 16 thereby shutting the appellants from receiving a hearing in this court. This raises an issue of Jurisdiction and puts the requirement of desire to do justice in this case out of consideration by this court. The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however plausible, can never be elevated into a principle of law. The appellants are out of court and their case will be put out of court as it deserves, according to law.

JUDGMENT OF KPEGAH JSC.

I have had the opportunity of reading the opinion of Acquah JSC which he has circulated to all of us. I have nothing useful to add. I agree that the appeal is inadmissible and should be dismissed.

JUDGMENT OF ACQUAH JSC.

My Lords, this is a ruling on the propriety of the notice of appeal purporting to initiate a chieftaincy appeal from the National House of Chiefs.

Now, after that appeal had been argued before us and adjourned to a date for judgment, we held a judgment conference at which we noticed certain anomalies on the notice of appeal. We discovered that the notice of appeal had the filing stamps of both the Court of Appeal and the National House of Chiefs, meaning that same had been filed in the registries of these two courts. We further noticed that the date of filing in both filing stamps was the same, that is 12 February 1998; but the filing time stated in that of the National House Chiefs was 8.00 am while that of the Court of Appeal was 8.40 am. Since the proper forum for the filing of notice of appeal initiating chieftaincy appeals from the National House of Chiefs to the Supreme Court is the National House Chiefs, and the filing stamp of that house on the notice of appeal showed that same was filed at 8.00 am on 12 February 1998, why should the same notice of appeal be sent to the Court of Appeal registry in Accra to be filed on the same 12 February 1998 at 8.40 am? Furthermore, since the distance between

[p.437] of [1999-2000] 1 GLR 429 the National House Chief s registry in Kumasi and that of the Court of Appeal’s registry in Accra is over 200 kilometers, how could the notice of appeal be filed in both these places on the same day within a time space of 40 minutes? We also found that some copies of the notice of appeal were addressed to the “Registrar, Supreme Court” while others were to the “Registrar, Court of Appeal.” None was addressed to the registrar of the National House of Chiefs. And yet, the record of proceedings emanated from the registry of the National House of Chiefs.

These matters obviously smelt of a fraudulent manipulation of the notice of appeal and thereby raised the preliminary legal issue as to the competence of that document to initiate the appeal. For fraud as is well-known, vitiates everything, and when a court of law in the course of its proceedings, has cause to believe that fraud had been committed, the court is duty-bound to quash whatever had been done on the strength of that fraud. As Osei-Hwere JA (as he then was) said in In re West Coast Dyeing Industry Ltd, Adams v Tandoh [1984-86] 2 GLR 561 at 605, CA:

“Fraud like cancer, calls for a swift remedy. It must be uprooted. Therefore when fraud is brought to the court’s notice and there is credible evidence to support it the court is obliged to deal with it swiftly and decidedly.”

The House of Lords in Jonesco v Beard [1930] AC 298 at 301-302, HL put it this way: “Fraud is an insidious disease, and if clearly proved to have been used so that it might deceive the Court, it spreads to and infests the whole body of the judgment.”

Now, as to the court’s competence in raising and deciding such legal issues arising from matters glaring on the face of the record, Archer JA (as he then was) Asare v Brobbey [1971] 2 GLR 331 at 338, CA, quoted, Scrutton LJ as having said in Phillips v Copping [1935] 1 KB 15 at 21 that: “it is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it.” See also Orthodox School of Peki v Tawlma-Abels [1974] 1 GLR 419,CA.

In fairness to the appellants and to give the parties the opportunity to be heard, we ordered the registrar of the National House of Chiefs to appear and testify in the open, and for him to be cross-

[p.438] of [1999-2000] 1 GLR 429 examined. One, Francis Mark Domenya, a registrar at the National House of Chiefs, responded and testified. And on the basis of his evidence and the materials before us, this opinion is delivered. But first, a brief background of the case.

On the death of Nana Akoa Amponsah, the queenmother of Agona Ashanti, the descendants of Tiwaa and Yaa Awe of the Asinie royal family of Agona nominated one Nana Amma Ampratwum as successor. They presented her, as custom demands, to the Omanhene of the Agona Traditional Area, Nana Kwame Frimpong, who as they alleged, asked them to wait awhile. But then the Omanhene later installed one Akosua Nyarko of the Senchire family of Akyease as the queenmother. The Omanhene also at another time informed the kingmakers and elders of Agona at a traditional council meeting that, because of his physical weakness and failing health, he would place on his lap one Akwasi Agyeman of the same Senchire family, on the 40th day of the installation of the queenmother, Akosua Nyarko.

Aggrieved by these actions of the Omanhene, and contending that their lineage had the exclusive right to the male and female stools of Agona, the descendants of Tiwaa and Yaa Awe, represented by their head of family and obaapanyin filed a chieftaincy petition at the Ashanti Regional House of Chiefs against the Omanhene, as the first defendant, Akosua Nyarko, as the second defendant, and Akwasi Agyeman as the third defendant, claiming:

“(1) A declaration that the first respondent has acted contrary to custom and from improper motives in installing a non-royal on the queenmother stool of Agona.

(2) A nullification of the purported installation of the second respondent on the female stool of Agona.

(3) An order of perpetual injunction to restrain the first respondent, his agents, servants and workmen from putting on the stool any non-royal of the said stool and from anyway seeking to cause havoc to the said Agona royal stool.

(4) A mandatory order prohibiting the said first respondent from putting on his lap the third respondent who is a non-royal of Agona as the first respondent has envinced a clear intention so to do, contrary to custom.

[p.439] of [1999-2000] 1 GLR 429

(5) An order prohibiting the second respondent from parading herself or pretending to be the queenmother of Agona as she is not a royal nor has she been validly nominated, elected and installed on that stool.”

In their accompanying statement of claim, they contended that their lineage had the exclusive right to ascend both the male and female stools of Agona, and that the second and third respondents were ineligible because they did not belong to the royal Asinie family.

The defendants, in their statement of defence, denied the claim and contention of the petitioners and pleaded that the Asinie royal family of Agona-Ashanti was made up of five lineages: Kwabena Adu, Tiwaah and Yaa We, Krabi, Biane, and finally Osei Mensah. They contended that the second and third defendants together with the entire Kofi Senchire’s matrilineal family of Akyease-Ashanti belong to the Krabi royal lineage. They then counterclaimed for a declaration that:

“(i) the second and third respondents and members of their entire matrilineal family of Akyease-Ashanti are members of the Asinie royal family of Agona-Ashanti;

(ii) the second and third respondents and members of their entire matrilineal family of Akyease-Ashanti are eligible to occupy the paramount and queenmother’s Asinie stools of Agona-Ashanti;

(iii) the first respondents was: customarily competent and right to install the second respondent as the queenmother of Agona-Ashanti;

(iv) an order of perpetual injunction restraining the petitioners, their agents, successors according to native customary law and any other member or members of the other royal lineage of Agona-Ashanti from interfering with the second and third respondents and the entire members of their matrilineal family’s right as members of the Asinie royal family of Agona-Ashanti eligible to occupy the Asinie royal stools of Agona-Ashanti.”

The first and third defendants later died, and the petitioners discontinued their action against these two deceased, leaving the second defendant, Akosua Nyarko as the sole defendant. Thereafter

[p.440] of [1999-2000] 1 GLR 429

Akosua Nyarko filed a motion to strike out the action of the petitioners on the grounds, first, that the petitioners had no capacity under customary law to destool her since she had been properly enstooled by the competent authority, and secondly, the discontinuance of the action against the deceased first and second defend- ants vindicated her installation.

On 20 November 1996 the Ashanti Regional House of Chiefs dismissed the motion, holding that the petition was not a destoolment action but one challenging the eligibility of the remaining defendant to ascend the queenmother’s stool; and further, since the capacity of the petitioners as head and obaapanin of their lineage were not denied, they were competent to maintain the said action.

An appeal to the National House of Chief was allowed on 15 May 1997 and the petitioners’ action was struck out. For in the view of the National House of Chiefs, although the petition was not a destoolment suit and therefore capacity was irrelevant, the action arose from the conduct of the first respondent, against whom all the reliefs, except the fifth, were aimed at. The second defendant did nothing to merit being sued since she did not nominate nor install herself. Thus, concluded the National House of Chiefs, the discontinuance of the action against the first and third respondents necessarily terminated the action. The National House of Chiefs refused an application by the petitioners for leave to appeal to this Court. On 28 January 1998 this court therefore granted them the said leave. And the notice of appeal filed in pursuance of that leave is the subject matter of this ruling.

The evidence of Francis Mark Domenya of the National House of Chiefs was that on 20 February 1998, his superior, the registrar of the National House of Chiefs, handed over to him eight copies of a notice of appeal with a covering letter dated 16 February 1998 from the registrar of the Court of Appeal, and instructed him to file them and date each, 12 February 1998. He said the notice of appeal already had the filing stamp of the Court of Appeal dated 12 February 1998 at 8.40 am. He accordingly put the filing stamp of the National House of Chiefs on each, dated each 12 February 1998 and inserted the time of 8.00 am. He said he collected no filing fees because there was no one to pay for it, and that up to date, no filing fees had been paid. He tendered the covering letter from the registrar of the Court of Appeal in evidence as exhibit SC 1.

[p.441] of [1999-2000] 1 GLR 429

Now, the minutes of the registrar of the National House of Chief on this exhibit SC I reads: “Please re-file the notice on the date 12 February 1998 and collect fees.

(Sgd) Registrar 20 February 1998.”

From the above minutes, Mr Dumenya was instructed to collect fees. Yet, he did not. The papers before us also disclose that the registrar of the Court of Appeal addressed another letter dated the same 16 February 1998 to the parties and the appellants’ solicitor informing them, in effect, that the Court of Appeal was not the proper forum for the filing of the notice of appeal. But the appellants took no steps to rectify their error.

Mr Dumenya made it clear that once no filing fees were collected, no notice of appeal had, indeed, been filed at the National House of Chiefs. But even if fees had been paid, that would not have validated the filing stamp, since the receipt date and the filing time inserted therein were false. From the evidence of Mr Dumenya and the materials before us, it is abundantly clear that the filing stamp of the National House of Chiefs on the notice of appeal was falsely procured to give the impression, false of course, that the notice of appeal was duly filed at the National House of Chiefs at the time and date stated therein-a conduct obviously intended to overeach or defraud the other party.

Now, the Supreme Court Rules, 1996 (CI 16), r 6 (1) provides as follows:

“6. (1) Any appeal to the Court in a civil cause or matter shall be brought by notice of appeal in the Form I set out in Part I of the Schedule to these Rules and shall be filed with the Registrar of the Court below.”

(The emphasis is mine.) The expressions “court below” is defined in rule 82 of CI 16 as: “The court or body from which an appeal or other cause or matter is brought.” Since in the instant case, the matter before us was an appeal from the decision of the National House of Chiefs, the notice of appeal ought to have been filed at the National House of Chiefs and not the Court of Appeal. There is therefore

[p.442] of [1999-2000] 1 GLR 429 non-compliance with rule 6 (1) of CI 16. And the question is whether we have the power to waive such noncompliance.

Mr Edusei, learned counsel for the appellants, had on this point submitted that once the notice of appeal was filed, and fees paid at the Court of Appeal, we have power to regard same as having been filed at the National House of Chiefs and thereby waive the non-compliance. He said that such approach would enable us to do justice to the merits of the case, and that it would be gross injustice, to dismiss the appeal on such an error.

There is no doubt that the primary duty of a court in the adjudication of any case is to do justice and not to allow technicalities to impede such a noble objective. But justice is done according to law and not the whims and caprices of the individual judge. Thus in any given situation, the court’s authority to waive, amend, rectify or regard as fatal an error committed by a party is dependent upon the scope of the court’s jurisdiction to exercise a discretion, if any, in the matter. Indeed, the authorities establish that the courts are not inclined to waive or correct an error intended to overreach or defraud the other even if the matter lies within their discretion. Thus Bowen LJ in Copper v Smith (1884) 26 ChD 700 at 710, CA said: “. .. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.” (The emphasis is mine.) Again where the error is fundamental or goes to the jurisdiction of the court, thereby exposing the court’s incompetence or lack of jurisdiction in the matter in which the said error was committed, the court is incompetent to correct or waive such an error, as a court of law has no authority to grant itself jurisdiction’ in matters. where the relevant statute does not confer such power.

Now, it must be appreciated that a right of appeal is a creature of statute, and no party has an inherent right to it. Neither has any court an inherent jurisdiction to hear an appeal. The right to appeal can therefore arise and be exercised only in accordance with the laid down procedure. As Akufo-Addo CJ said in Nye v Nye [1967] GLR 76 at 82-83,CA (full bench):

“It must be appreciated that there is no, inherent right of appeal in a litigant; nor indeed is there an inherent power in any court to hear appeals. Both the right and the power are

[p.443] of [1999-2000] 1 GLR 429 creatures of statute, and unless the enactment creating the right of appeal and the power to hear an appeal is explicit, clear and unambiguous in its language, no such right and no such power can ever materialise. When however the right and the power do materialise they are exercisable only within the framework of the conditions imposed for their exercise.”

Of course, rule 79 of CI 16 (same as rule 66 of the repealed Supreme Court Rules, 1970 (CI 13)) empowers this court, in fitting situations, to waive non-compliance with a procedural rule or order of this court. But that rule does not permit this court to do what it has no jurisdiction to do. The rule reads:

“79. Where a party to any proceedings before the Court fails to comply with any provision of these Rules or with the terms of any order or direction given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings unless the Court considers that the non-compliance should be waived.”

The language of the above rule clearly shows that it applies only to “a party to any proceedings before the court.” The court here is defined in rule 82 of CI 16 to mean the Supreme Court. And as we are aware, this court conducts proceedings in respect of its various jurisdictions, namely: (i) appellate jurisdiction in civil and criminal matters; (ii) original jurisdiction; (iii) review; (iv) supervisory; (v) reference; and (vi) challenge of election of President. It is therefore important to appreciate that in discussing the scope of rule 79 of CI 16, the jurisdiction in respect of which the proceedings in issue are being conducted must be uppermost in one’s mind. For CI 16 being procedural rules, same cannot confer jurisdiction where the substantive law does not. In respect of its review and supervisory jurisdictions, for instance, the Supreme Court has in the exercise of its discretion under rule 79 not bound itself to any inflexible precedent. Rather, it had dealt with each case more on its own peculiar facts and circumstances, considering whether each non-compliance was wilful, unintended or excusable, and whether same could be waived or not waived without injustice to the other side. Thus failure to file a statement of case to accompany one’s motion for review under rule

[p.444] of [1999-2000] 1 GLR 429

56(1) of CI 16 had in some instances been waived and in others not waived: see Republic v Thompson, Supreme Court, Accra, 3 February 1998, unreported. Again in Republic v High Court, Kumasi; Ex parte Kwadwo Bi, Supreme Court, Accra, 15 July 1998, unreported the court allowed an unswom affidavit supporting a motion for certiorari to be sworn, on grounds that the failure was inadvertent and not intended to overreach. See also, Okofo Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224; and Goldfields (GH) Ltd v Anthony, Supreme Court, Accra 27 October 1998, unreported.

However, unlike the review and supervisory jurisdictions, there is a mandatory statutory prohibition in section 4(5) of the Courts Act, 1993 (Act 459) on this court, subject to its power to grant special leave, to hear any appeal unless the appellant has fulfilled the conditions imposed on him by CI 16. The section reads:

“(5) Subject to subsection (2) of this section, the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed under the Rules of Court.”

(The emphasis is mine.) The appellate jurisdiction of the Supreme Court is therefore circumscribed by the injunction imposed in section 4(5) of Act 459. And it is within the parameters of this injunction that rule 79 of CI 16 operates.

Now, a careful study of the riles regulating civil appeals in general, break down into two sets of the rules: The first set leading to the filing of the appeal; and the second set, regulating the bringing of the appeal thus filed to a hearing. The first set includes rules on the time within which to file an appeal, the obtaining of leave, if any, and the forum where the notice of appeal ought to be. When in compliance with the first set of rules, a notice of appeal is filed, the appeal is deemed to be lodged at the appellate court to which the appeal is directed. Thus in relation to the Supreme Court, rule 8(3) of CI 16 provides: “A civil appeal is lodged on the date the notice of appeal is filed.” This implies, from what I have said that the notice of appeal must have been filed within time with the requisite leave, if any, and at the appropriate court below. The rules after the filing of the notice of appeal come under the second set. And they include the settlement

[p.445] of [1999-2000] 1 GLR 429 of records, the fulfillment of the conditions of appeal imposed by the registrar, the filing of the parties’ statement of case, and so on.

The decided cases show that defaults in connection with the rules in the first set is fundamental and goes to the root of the appeal, and therefore leave the court with no discretion but to dismiss the appeal in limine. They affect the notice itself, invalidate it and render the appeal void: see Moore v Taye (1932) 1 WACA 242; and Dickinson, In re; Ex parte Rosenthal (1882) 20 ChD 315. Defaults in connection with the second set are not so fundamental, since a valid appeal had already been lodged. They affect the prosecution of the appeal and in this wise, are conveniently described as procedural. Such defaults therefore render the appeal only voidable. And it is in relation to these defaults that the court’s discretion may be invoked: see Ogunmola v Igbo (1941) 7 WACA 137; Botchway v Nasser (1946) 12 WACA 23; and Kudiabor v Kudanu (1932) 6 WACA 14. Speaking on the court’s power to handle defaults in connection with these two sets of rules in relation to the Supreme Court Rules, 1962 (LI 218) in Merah v Okrah [1984-86] 1 GLR 400 at 410, SC Adade JSC said:

“Concerning the first, the court has no discretion but to strike down the appeal as invalid: there is no appeal before the court. The court’s discretion cap, only be invoked in connection with the procedural defaults, when rules 19 or 64 of LI 288 as appropriate, may be prayed in aid.”

On the basis of the above authorities, it has been consistently maintained that the Supreme Court’s discretion under rule 79 of CI 16 in civil appellate matters can be invoked only when the appeal has been lodged in the Supreme Court. And by rule 8(3) of CI 16 this implies that the notice of appeal must have been properly filed at the appropriate court below: see Ololo v LEDB (1950) 13 WACA 57; Darke IX v Darke IV [1984-80] 1 GLR 81, SC Sandema Nab v Asangalisa [1996-97] SCGLR 302. Explaining the scope of rule 66 of CI 13 (same as rule 79 of CI 16) in relation to the Supreme Court’s appellate jurisdiction, Adade JSC in Darke TX v Darke IV (supra) at 489 said:

“Case law on the interpretation and application of this rule has cystallised along the lines that the court’s discretion . . . is to be [p.446] of [1999-2000] 1 GLR 429 exercised when the appeal itself can be said to be properly pending before the court and the court has jurisdiction to deal with it. This means that the appeal must have been filed timeously, and, where applicable, the requisite leave had been obtained. But where the appeal is filed out of time, or otherwise suffers from a fundamental and radical defect, a defect that goes to the very root of the appeal, then notionally there is nothing before the court with respect to which the court may exercise any discretion at all. The court’s jurisdiction is to be invoked to handle appeals; it is not to be invoked to handle nothing. So if there is no appeal. pending, properly so-called, then the court has no jurisdiction to do anything.”

(The emphasis is mine.) Thus, unless the appeal in issue here has been lodged in this court in terms of rule 8(3) of CI 16, we cannot invoke our discretion under rule 79 of CI 16 to consider the request of Mr Edusei.

In the instant case, the evidence of Mr Dumenya clearly established that the notice of appeal was filed at the Court of Appeal and that up to date no notice of appeal had been filed at the National House of Chiefs where by rule 6(1) of CI 16 same ought to have been filed. The filing stamp of the National House of Chiefs on the notice of appeal is not genuine in. that it was contrived to deceive and give the impression. that same had properly been filed there.

I concede that this false National House of Chiefs’ filing stamp was the handiwork of the officials of the house, and generally the law does not permit the court tepenalise a party in a situation arrising from the misconduct of a court official over whom the party has no control. In Montreal Street Rail Co v Normadin [1917] AC 170 at 174, the law was stated thus:

“When the provisions of a statute relate to the performance of a public duty and the case is such that to hold nail and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, [the court] would require very strong evidence before punishing an innocent person for the default of the registrar over whom he has no control. So that in the absence of any evidence

[p.447] of [1999-2000] 1 GLR 429 that it was the appellants who requested the court officials to place the filing stamp of the National House of Chiefs on the notice of appeal, the appellants ought not to be penalised for that. I entirely agree.

But first of ill, penalising of the appellants for the presence of the false National House of Chiefs filing stamp does not arise as same is a nullity. Mr Dumenya made it quite clear that there had been no filing of the notice of appeal at the National House of Chiefs, especially as no filing fees had been paid, and that the date and time inserted in that filing stamp are all false. The said filing stamp is therefore to be totally ignored. The position therefore is that the notice of appeal was filed at the Court of Appeal registry. And since the filing of notice of appeal is regulated by time, the appellant’s are now hopelessly out of time, irrespective of whether the decision delivered by the National House of Chiefs on 15 May 1997 is interlocutory or final.

Secondly, although a party is generally not to be penalised for the misconduct of a court official, it is also established that where the misconduct of a court official is founded on or arises from the error, mistake or improper conduct of that party, the said party cannot take advantage of that misconduct. For as Apaloo CJ aptly said in Ndoley v Iddrisu [1979] GLR 559 at 565: “No man should be permitted to take advantage of his own wrong.” See also Republic v Kumasi Traditional Council; Ex parte Agyeman II [1977] 1 GLR 360 at 365. Therefore since the error occasioned by the procurement of the false National House of Chiefs filing stamp on the notice of appeal arose from the error of the appellants in filing same at the wrong forum, the appellants cannot take advantage of the presence of the false National House of Chiefs filing stamp and plead that this court should regard their notice of appeal as having been duly filed at the National House of Chiefs. In short, it does not lie in the mouth of the appellants to attempt to take any advantage of the National House of Chiefs filing stamp.

In conclusion, the appellants having filed their notice of appeal at the wrong forum in contravention of rule 6(1) of CI 16, with the result that their appeal is still deemed not to have been lodged in terms of rule 8(3) of CI 16, this court is not seised with jurisdiction under rule 79 of CI 16 to exercise its discretion in one way or the other. The appeal is therefore destined to be refused. And I so hold.

[p.448] of [1999-2000] 1 GLR 429

JUDGMENT OF ADJABENG JSC.

I agree that the appeal be struck out.

JUDGMENT OF ADJABENG JSC.

I also agree that the appeal be dismissed.

DECISION Appeal dismissed.

LSNA