LAMPTEY VRS. KEDE (J4/49/2022) [2022] GHASC 128 (27 July 2022)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2022

Coram

DORDZIE (MRS.) JSC (PRESIDING) AMEGATCHER JSC OWUSU (MS.) JSC TORKORNOO (MRS.) JSC PROF. MENSA-BONSU (MRS.) JSC

Civil Appeal

NO. J4/49/2022

27TH JULY, 2022

(amended to Read)

NII LANTEI LAMPTEY ……. DEFENDANT/APPELLANT/APPELLANT VRS SHADRACH SOSSOU KEDE …… PLAINTIFF/RESPONDENT/RESPONDENT

Judgment

AMEGATCHER JSC: -

Facts

This is an appeal from the judgment of the Court of Appeal dated 28 th July 2021. Per their pleadings, the respondent is a self -employed Ghanaian and lives at Page 2 of 35

Ashongman Estates, a suburb of Accra. The appellant is a royal of the Nsakina stool and the current chief of Nsakina. It is the case of the respondent that sometime on 12th April 2006 he negotiated and acquired a parcel of land at Nsakina from the then chief of Nsakina who later gave him an indenture evidencing the transaction. The respondent avers that he rema ined in uninterrupted peaceful possession until January 2012 when he started the construction of his three -bedroom private residence and reached lintel level by August 2015. By this time, he had been in possession for nine years and some months. It is the case of the respondent that the appellant who has a relationship with the royal family of Nsakina entered his land in August 2015 and with the assistance of thugs caused massive destruction of the building valued at Ghc74, 614.40. The respondent reported this wrongful damage of his property to the police and also to the royal family who promised to resolve the matter but after waiting for some time without any resolution he decided to go to court to claim Ghc100, 000.00 damages for the destruction and perpetual injunction to restrain the defendant from interfering with his rights and quiet enjoyment of the property. After service of the respondent’s writ and statement of claim, the appellant filed his defence denying any knowledge of the land, the grant of any land to the respondent as well as leading thugs to destroy the respondent’s property or ordering or supervising any person to carry out that destruction of respondent’s property. The appellant further denied any knowledge of any complaint about the destruction of property lodged against him at the police station. He also denied any knowledge of any meeting or settlement of the issue between the royal family and the respondent and put the respondent to strict proof of all the averments in his statement of claim. On 29 th November 2016, the respondent applied for leave to amend his writ of summons and statement of claim. Leave was granted to the respondent on 8 th December 2016 and he was ordered to file his amended writ and statement of claim within one week. There is no indication in the ROA that the pursuant amended writ Page 3 of 35

and statement of claim were filed. However, because of the references made to the amended pleadings by the trial court and the intermediate appellate court, the panel followed up with the registry of the Court which later furnished us with copies of the amended writ and statement of claim filed on the same day the application was granted i.e. 8 th December 2016 at 1:40 pm. Being an official record of the Court, we shall accept the filed copy and treat the amended writ and statement of claim as duly filed. However, counsel for the appellant has stated in his supplementary statement of case that the appellant was not served with the amended writ and statement of claim. We have seen an official search conducted by counsel for the respondent on 20th December 2016 at the registry of the High Court as part of the ROA at page

22. The following questions and answers are captured between counsel for the respondent and the registrar of the High Court: a) Whether or not the Court granted the Plaintiff leave to amend the Writ of Summons and Statement of Claim. Yes b) If so when? 8/12/16 c) Whether or not Defendant has been served with the Amended Writ of Summons and Statement of Claim. Yes d) If so when? 14/12/16 e) Whether or not Defendant has filed Amended Statement of Defence. No indication on the docket. It is clear from this official search that the appellant was served with the amended statement of defence on 14 th December 2016 but he chose not to file any amended defence in answer to the facts pleaded. If this were not the case we are sure the appellant would have been the first to challenge the search result and its inclusion in the ROA. We are, therefore, enjoined by law to accept the official record from the registry of the High Court as conclusive of the facts stated in the document. In this regard, facts pleaded in the amended statement of defence that have not been specifically denied or under the general traverse shall be taken as admissions. Page 4 of 35

HIGH COURT PROCEEDINGS The High Court Accra on 5 th December 2018 gave judgment in favour of the respondent against the appellants for declaration of title to the property, recovery of possession, damages amounting to Ghc74, 614.41 with interest, and costs. The appellant was dissatisfied with the judgment of the High Court but missed the window provided to file an appeal as of right within the first three months under Rule 9 (1)(b) of the Court of Appeal Rules 1997 (C.I. 19). On 23 rd May 2019, a little over five months after the High Court judgment, the appellant filed an application for an extension of time within which to file an appeal out of time to the Court of Appeal. This application was heard and granted by the High Court on 12 th July 2019. The High Court gave the appellant 14 days within which to file his notice of appeal. The appellant complied with the order and filed his notice of appeal on 17th July 2019.

PROCEEDINGS AT THE COURT OF APPEAL The appeal was subsequently listed before the Court of Appeal and written submissions were filed by the parties. In its judgment dated 28 th July 2021 the Court of Appeal disposed of the appeal on the technical point i.e. whether there was a valid appeal before it. According to the Court of Appeal, the legal point on the status of the appeal was so obvious from a perusal of the Record of Appeal (ROA) that it had no choice but to rest its decision on that point. The Court of Appeal then proceeded to review th e rules and concluded that the appellant’s application for an extension of time within which to appeal was argued and granted on 12 th July 2019, and the notice of appeal was filed on 17 th July 2019. These dates, according to the Court of Appeal, were all outside the second three months window within which leave was required to file the appeal. On that basis, the Court of Appeal came to the Page 5 of 35

conclusion that at the time leave was granted and the appeal was filed, the appellant was out of time. The Court of Appeal, therefore, struck out the appeal as incompetent. It was from this decision of the Court of Appeal that the appellant appealed to this court on a number of grounds.

GROUNDS OF APPEAL TO THE SUPREME COURT The appellants filed the following grounds of appeal:

1. That their Lordships of the Court of Appeal erred in their interpretation of Rule 9 (1) 4 and 7 of C.I. 19 in the computation of period for extension of time to appeal and thereby misdirected themselves to hold that the notice of appeal filed on 17-07-2019, (pursuant to leave of the trial High Court dated 12- 07-2019) was out of time.

2. The Court of Appeal erred when they failed to appreciate that the application for extension of time filed on 23 -05-2019, was within the stipulated six (6) months period as envisage (sic) by Rule 9 (1) 7 of C.I. 19.

3. The Court of Appeal erred in setting aside the trial High Court’s order for extension of time to appeal, granted on 12 -07-2019, and thereupon held that the said notice of appeal filed on 17-07-2019 was a nullity.

4. The judgment is against the weight of evidence.

5. Further grounds may be filed upon receipt of the records. On 10th May 2022, the appeal was listed for hearing. After adopting the statement of case filed by the parties we adjourned the appeal for judgment. In the course of the consideration of the appeal, we discovered that the appellant had consistently stated that the name assigned to him in the writ and pleadings is not his real name. He stated his real name as Nii Lantei Lamptey and his chieftaincy title as Nii Odartei IV. We also discovered that the submissions of the parties were confined to the procedural matter regarding the time limit within which to appeal which formed the Page 6 of 35

basis of the Court of Appeal decision. For judicial economy and to save the parties from excess expenses in going back and forth within the court’s hierarchy, we exercised our powers under Article 129 (4) of the Constitution, 1992, and invited the parties to appear before us on 15 th June 2022 for further directions in this appeal. By consent of all the parties, we ordered the appellant’s name on the record to be amended to read Nii Lantei Lamptey. We also or dered the parties to file additional statements of case based on the grounds of appeal filed at the Court of Appeal so that we can dispose of every matter arising from this appeal in one judgment. The parties complied with the order and filed their additional statement of case arguing the merits of the appeal.

CONSIDERATION OF THE APPEAL BEFORE THE SUPREME COURT The appeal to this court is limited to the technical disposal of the appeal by the Court of Appeal i.e. that there was no valid appeal before the court from the High Court’s

Decision

The five grounds of appeal filed are so related that they will be considered together to wit: The Court of Appeal erred in their interpretation of Rule 9 (1) 4 and 7 of C.I. 19 in the computation of the period within which to apply for an extension of time to appeal and thereby erred in setting aside the High Court’s order for extension of time to appeal on the basis that it was out of time. At pages 224 -225 of the ROA, the Court of Appeal reviewed the important dates in the trajectory of this case as follows: “Having perused the written submissions of counsel for both parties in this case, I have decided to rest the decision in this appeal on a legal point which is so obvious from a perusal of the record of appeal touching on the propriety of the Page 7 of 35

appeal before this court having regard to rule 9 of the Court of Appeal rules 1997 (C.I. 19) dealing with the time limit for filing appeals. The record of appeal shows that the judgment of the High Court the subject of appeal was delivered on 5 th December 2018….On the 12 th of July 2019….the learned High Court judge heard arguments for and against a motion for extension of time within which to file appeal out of time and granted the application and ordered the defendant/appellant to file the notice of appeal and the necessary documentation within 14 days. On 17 th of July 2019 the defendant/appellant filed the Notice of Appeal……pursuant to the leave granted by the High Court on 12th of July, 2019.” After this review, the Court of Appeal then proceeded to interpret the rules at page 225 of the ROA in the following words: “By a simple computation of time, it is obvious that even as at the 12 th July 2019 when the High Court granted the defendant/appellant extension of time to appeal, the appellant was already out of time having regard to the fact that the judgment of the High Court the subject of the appeal was delivered on 5 th December 2018 a period of more than seven months before the extension of time was granted by the High Court.” The Court of Appeal then concluded at page 231 based on its understanding of the rules as follows: “Accordingly, the order extending the time within which to appeal is hereby set aside and the notice of appeal having been filed outside the six (6) months period was a nullity and confers no jurisdiction on this Court to determine the appeal.” It would be appropriate to reproduce the exact text of the relevant rules so as to determine whether the interpretation given by the Court of Appeal accords with the law.

9. Time limits for appealing Page 8 of 35

(1) Subject to any other enactment for the time being in force, no appeal shall be brought after the expiration of- (a) twenty-one days in the case of an appeal against 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 the notice of appeal has been filed in the Registry of the court below

(4) No application for extension of time in which to appeal shall 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.

(7) Notwithstanding rule 28 of these Rules, no application shall be made to the Court for extension of time within which to appeal after six months from the date of the decision appealed against. There is no doubt that the time limit prescribed for appealing against a final decision of the High Court to the Court of Appeal as of right is three months in the first instance from the date the decision was rendered. After three months, a dissatisfied person who wishes to appeal has another window. That can only be exercised with the leave of the Court and that right is limited to an application for an extension of time being filed within the second window of three months. The rule clearly states that after the expiration of the second three months or six months from the date of the trial court’s judgment no application for an extension of time could be brought. At what stage, then, could an application for extension of time be regarded as valid Page 9 of 35

having regard to rule 9 of C.I. 19? The Court of Appeal took the view that the application for an extension of time must be argued and granted before the expiration of the second three month window. We have examined the rules and do not agree with the interpretation put on the provisions of Rule 9 by the Court of Appeal. The operating phrase we find relevant in sub -rules 4 and 7 is that no application for an extension of time within which to appeal shall be made after six months or after the expiration of the second three month window. The rule is clear. It is an application which should not be filed and not that arguments cannot be made when an application is pending or the court cannot hear and make an order once an application is pending. In our view what is important is the filing of an application for an extension of time before the six month window closes. The time fixed to move and rule on applications in our courts is beyond the control of litigants. Interestingly, this Court has had an opportunity to determine a similar procedural time limit which came before it a decade ago. That is the case of Halle & Sonns SA v Bank of Ghana & Warm Weather Enterprise Ltd [2011] 1 SCGLR

378. In that case, following a failed export and import of fish from a Norwegian firm to a Ghanaian company the Norwegian firm sued and had summary judgment in its favour by the High Court on 15th May 2001. On 7th November 2001, a week before the expiry of the six months window, the B ank of Ghana which was sued as 2 nd defendant filed a motion for an extension of time within which to appeal against the grant of the summary judgment. The Ghanaian company also filed its application for an extension of time on 14 th November 2001, a day before the expiry of the six months window. Both the Bank of Ghana and the Ghanaian company moved their applications on 5 th March 2003, about one and half years after the High Court summary judgment. The extension of time was granted, each given seven days within which to file the appeal. They filed their notices of appeal on 10 th March 2003. On 30 th November 2006, the Court of Appeal allowed the appeal, set aside the summary judgment, and granted the defendants unconditional leave to defend the Page 10 of 35

action. The plaintiff, the Norwegian firm appealed to the Supreme court against the judgment of the Court of Appeal arguing that at the time the Court of Appeal allowed the appeal and granted the defendants leave to appeal, they were irredeemably out of time in the sense that the determination by the Court of Appeal was made outside the six months’ time permitted by the rules , so the right to appeal had been extinguished. The Supreme Court per Sophia Adinyira JSC held at page 393 as follows: “The expression an application ‘shall not be made’ to the Court for extension of time as used in rule 9(7) of the Court of Appeal Rules, 1997 (C.I. 19), is not synonymous with the expression ‘no application shall be moved or heard’ after the six months limitation period. It is our considered view that an extension of time made by a court after the prescribed six months limitation period for filing an appeal under rule 9(7) is permissible and within the discretion of the court only where the application upon which the extension was granted was filed within the six months period. Otherwise, there would be a great deal of injustice to parties where applications are brought rather tardily though within the prescribed time. Not forgetting the slow pace at which cases move in our courts due to various inhibitions. There is no provision in the Court of Appeal Rules, 1997 (C.I. 19), prohibiting an applicant from moving an application filed within time after the expiration of the six months period. The determining factor in the circumstances is when the application was made. An application obviously must first be made before it can be moved for determination by a court……It is our thinking then that since it is the application that must be made within the six months period and not the determination of it, any application that is filed any time within the six months period ought to be moved and determined on its merit at any time, though expeditiously.” It is evident from the interpretation given in this judgment to the relevant rule on the extension of time within which to appeal that the Court of Appeal got it wrong and Page 11 of 35