Adzigodi and Another v Aryee and Another (Civil Appeal No. J4/6/2026) [2026] GHASC 56 (29 July 2026)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A. D. 2026 CORAM: AMADU JSC (PRESIDING) ASIEDU JSC KWOFIE JSC ADJEI JSC ACKAAH-BOAFO JSC CIVIL APPEAL NO. J4/6/2026 29TH JULY, 2026 1. JOHN ADZIGODI PLAINTIFFS/APPELLANTS 2. MICHAEL YAKA SOSU VRS 1. PADIKIN ARYEE DEFENDANTS/ RESPONDENTS 2. COLLINS ADZIGODI J U D G M E N T 2 ADJEI, JSC: The Plaintiffs/Appellants/Appellants shall be referred to in this appeal as Plaintiffs, and the Defendants/Respondents/Respondents as Defendants. The Plaintiffs issued a writ of summons at the Tema High Court on 1st February, 2008. The High Court on 17th April, 2015 gave judgment against the Plaintiffs. The Plaintiffs on 22nd October, 2015 filed an application for extension of time within which to file an appeal against the final judgment of the High Court. On 11th November, 2015, the High Court granted an extension of time to the Plaintiffs to file their appeal out of time. The record of appeal was prepared , and Form 6 was subsequently issued. On 12th October, 2021 , the Court of Appeal, upon an application filed by the Plaintiffs, granted leave to the Plaintiffs to file additional grounds of appeal. On 15th December, 2021, the Defendants filed a Notice of Preliminary Objection under Rule 16(1) of the Court of Appeal Rules, 1997 (C.I. 19) to challenge the competence of the Notice of Appeal filed pursuant to leave granted by the High Court. The Defendants contended that the application for leave to file an extension of time to file an appeal was filed outside the six months provided by law and was therefore void. The Notice of Objection provides thus: “NOTICE OF RESPONDENTS TO RELY UPON PRELIMINARY OBJECTION RULE 16(1) 3 TAKE NOTICE THAT the Defendants/Respondents herein intend at the hearing of this Appeal to rely on the following preliminary objection of which notice is given AND TAKE NOTICE THAT the grounds of the objections are as follows: 1. That not only that the appellants failed to file the notice of appeal within 3 months as stipulated by the rules. But that they failed to file their application for extension of time within which to file Notice of Appeal 5 clear days after 6 months from the date of the judgement. Contrary to rule 9(4) of C.l.19 2. That since the application for extension of time within which to file notice of appeal did not comply with law, the trial High Court had no jurisdiction to entertain the application and let alone grant same. 3. That the application for extension of time within which to file notice of Appeal having been filed out of time, the grant was null and void and the Notice of Appeal filed on the 18th day of November 2018 was incompetent to invoke the jurisdiction of this Honourable Court of Appeal”. During the pendency of the appeal, the Defendants filed an application to the Court of Appeal to dismiss the appeal on grounds of incompetence. The Court of Appeal heard the application on 18th March, 2024, found it meritorious, and dismissed the grounds of appeal filed in pursuance of the leave granted by the High Court as a nullity. The Plaintiffs, dissatisfied with the ruling of the Court of Appeal delivered on 18th March, 2024, filed an interlocutory appeal against same on 25th March, 2024 to this Court. The grounds of appeal are as follows: “(i) His Lordships in the Court of Appeal erred when they ruled on 18/03/2024 that the Notice of Appeal cannot be made after six months. 4 (ii) The Court of Appeal also erred when they ruled on 18/03/2024 that the Court has no discretion but to dismiss the appeal since the Notice of Appeal cannot be made after six months under Rule 9(7) of the Court of Appeal rules. (iii) The Court of Appeal also erred in its ruling dated 18/03/2024 that the Appellate Court's jurisdiction has not been properly invoked and that the Appeal was a nullity and dismissed same. (iv) His Lordships misapplied, misconstrued and thereby misdirected themselves to the ambit of the provisions of Rules 9,16 and other Rules of the Court of Appeal rule relating to extension of time and Order 80 of C.I. 47 and dismissed the appeal there occasioning a miscarriage of Justice against the Appellants. (v) The Court of Appeal erred when his Lordships held that the Appellate Court's jurisdiction was not properly invoked by the Applicants and therefore, they wrongly assumed jurisdiction and dismissed the Appeal of the Respondents and same is a nullity and without any effect. (vi) The objection raised was premature and the Court of Appeal was in error when it heard the objection prematurely by the Applicant and determined same”. The Plaintiffs argued grounds (i), (ii), (iii) and (v) together and argued that the High Court heard both parties and granted the application for extension of time to file an appeal without the Defendants objecting to the incompetence of the application and failure to object timeously amounts to waiver of rights. The Plaintiffs further argue that the Defendants are guilty of acquiescence as they did not take any step from 11th November, 5 2015, when the impugned order was made. The Plaintiffs further argued that the Defendants participated in the settlement of records at the registry of the High Court, leave to file additional grounds of appeal, leave to file written submission out of time, and respective written submissions by both parties, and have waived their rights to raise non-compliance after participating in the proceedings. According to the Plaintiffs , an application to set aside proceedings for irregularity shall be made within a reasonable time when the applicant has not taken any further steps to the knowledge of the irregularity. The Defendants, in response to the Appellants' argument, have submitted that failing to file an appeal within the time provided by law is not merely an irregularity; it goes to the roots of the matter and renders it a nullity. Rule 9 subrules (1), (2), (3), and (4) of the Court of Appeal Rules, 1997 (C.I.19), which regulate appeals from the High Court to the Court of Appeal, provides thus: “1. Subject to any other enactment governing appeals, an appeal shall not be brought after the expiration of (a)twenty-one days, in the case of an interlocutory decision; or (b) three months, in the case of an appeal against a final decision unless the Court below or the Court extends the time. 2. The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against. 3. An appeal is brought when notice of appeal is filed in the registry of the Court below. 6 4. An application for extension of time within which to appeal shall not be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.” The High Court delivered its judgment on 17th April, 2015 , and the Plaintiffs filed their application for an extension of time on 22nd October, 2015, that is, five days after the expiration of the six months provided by law. The law is settled that an appeal is a creature of statute, and a person who seeks to appeal shall file his appeal within the time prescribed by law; an appeal filed out of time shall be rendered null and void . Rule 9 subrule (4) of the Court of Appeal Rules, 1997 ( C.I. 19) provides that an application for an extension of time to file an appeal shall not be made after the expiration of three months from the expiration of the time prescribed by law. Jurisdiction is the power to adjudicate by a court, and where it is lacking the court cannot assume and exercise it. The High Court’s jurisdiction to determine an application for extension of time within which to appeal shall be made to it within three months from the date of expiration of the three months within which a final appeal is filed as of right, and the High Court assumed jurisdiction when its jurisdiction had been ousted by time. Where a person has the right to invoke the jurisdiction of a court to file an appeal or extension of time to file an appeal within the time prescribed by law and the time is lost, the jurisdiction of the court is equally lost and any decision made by it to grant any extension of time to file an appeal is a nullity. In the case of MacFoy v United Africa Co Ltd [1961] All ER 1169 , the Privy Council, speaking through Lord Denning, held that if an act is void, it is in law a nullity and becomes incurably bad . Any proceeding founded on it is also incurably bad. The extension of time to file an appeal which was filed out of time was filed contrary to law and procedure and is bad and incurably bad and the assumption of the High Court to grant the application was made without jurisdiction and same is void, and it is a nullity 7 in law, and all the processes founded on it including the leave to file additional grounds of appeal, and the respective written submissions by the parties are incurably bad. The Supreme Court in the case of Acheampong v The Republic [1996 -97] SCGLR 566 at page 578 quoted with approval the case of Zakari v Ndun [1968] GLR 1031 at 1036-1037 on order for extension of time granted without jurisdiction as follows: “It follows that the order of the judge enlarging time for bringing the appeal made on 27 November 1967 was without jurisdiction. The question that falls for determination is whether, I, a High Court Judge, having equal jurisdiction with the judge who granted the extension of time can ignore his order as having been made without jurisdiction. It seems that I am perfectly entitled to ignore it as being a n ullity, that is as if the order does not exist at all in view of the judgment in African Woods Limited v Administrator of Stool Lands [1962] 2 GLR 24, SC.” In the same Acheampong v Republic, supra, the Supreme justified the Court of Appeal’s jurisdiction to set aside the judgment of another court or tribunal which was given without jurisdiction as void and prescribes the mode of setting aside void order to include an action brought to declare it a nullity, or by the court upon a review, or an application by summons or motion, or on appeal, or by a fresh action. The ratio in both Craig v Kanssen [1943] KB 256, CA; and Mosi v Bagyina [1963] 1 GLR 337, SC is that a void order or judgment may be set aside on application by summons or motion, and the Defendants were right in filing an application to set the order that granted extension of time as void, and the Court of Appeal was properly seised with jurisdiction to declare the notice of appeal filed in pursuance to the void order that granted an extension of time to file an appeal out of time. 8 The Defendants shall not be estopped by waiver and acquiescence for the nine years they participated in the proceedings emanated from the void order upon which the appeal was founded, as the order was incurably bad and can be set aside at any time as void. The doctrines of waiver and acquiescence cannot validate a void order as the order was made without jurisdiction and it is a nullity ab initio and never existed in the eyes of the law. The Plaintiffs cannot put something on nothing and expect it to stand. The grounds (i), (ii), (iii) and (v) of the appeal are dismissed as unmeritorious. The Plaintiffs submit under grounds (iv) and (vi) that the combined effect of Order 80 rule 4 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and Rule 63 of the Court of Appeal Rules, 1997 (C.I. 19) is that both the High Court and the Court of Appeal under their respect rules are empowered to extend the time for doing an act after the time provided by the rules have expired , and the High Court’s order which is being attacked should be saved under non-compliance. The time within which to file an appeal from the High Court to the Court of Appeal cannot be extended after the expiration of time provided by Rul e 9 subrule (4) of the Court of Appeal Rules, 1997 (C.I. 19). The settled position of law is that an appeal is a creature of statute and no one has a natural or common law right to appeal, unless it is specifically provided by law. Where the right of appeal conferred on a person by a statute expires, there shall be no right to be exercised by that person and be barred forever from appealing against that decision. The appeal from the High Court to the Court of Appeal is conferred on the Court of Appeal by article 137 of the Constitution and re-enacted by section 11 of the Courts Act, 1993 (Act 459) and not by the rules, and where the right of appeal is lost, the court shall not have jurisdiction to use the rules to waive the right that is lost forever. The provisions in the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and the Court of Appeal Rules, 1997 (C.I. 19) that can be waived do not include jurisdictions such as subject-matter jurisdiction and lack of personal jurisdiction, failure to fulfill a condition 9 precedent to exercise of jurisdiction such as the right to appeal or where a statute provides that leave shall be sought before filing a process, breach of natural justice, matters that are nullities, breaches in a different rules of court, breaches in sta tutes, and breaches in the Constitution. The grounds under consideration are unmeritorious by the fact that rules of court cannot be used to extend the time within which to appeal which has not been expressly provided by law, and same are hereby dismissed. The appeal fails in its entirety and same is dismissed. (SGD.) D. ADJEI (JUSTICE OF THE SUPREME COURT) (SGD.) I. O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) 10 (SGD.) H. KWOFIE (JUSTICE OF THE SUPREME COURT) (SGD.) K. T. ACKAAH-BOAFO (JUSTICE OF THE SUPREME COURT) COUNSEL KWAME OPPONG-ADADE ESQ. FOR THE DEFENDANTS/RESPONDENTS MOHAMMED ATTAH ESQ. FOR THE PLAINTIFFS/APPELLANTS