ERIC V. ADDO VS CYNTHIA CARR (H1/97/23) [2023] GHACA 142 (4 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL KUMASI – GHANA AD - 2023 CORAM: MENSAH-DATSA (MRS) J.A. (PRESIDING) AMALEBOBA (MRS) J.A. BAIDEN C.E.E J.A CIVIL APPEAL NO: H1/97/2023 4TH MAY, 2023 ERIC VAICOUNT ADDO - PLAINTIFF/RESPONDENT/ RESPONDENT VRS CYNTHIA CARR - 1ST DEFENDANT/APPLICANT/ APPELLANT EMMANUEL CARR - 2ND DEFENDANT/NON – APPELLANT. 1 JUDGMENT AMALEBOBA (MRS), J.A. The jurisdiction of this Court has been invoked by a Notice of Appeal filed by the 1st Defendant/Appellant (hereinafter referred to as the 1st Defendant), against a Ruling of the High Court, Kumasi. Before we can proceed any further on the date of the Ruling appealed against and the nature of the Appeal, we will proceed to determine a preliminary legal objection raised by Counsel for Plaintiff/Respondent (hereinafter referred to as the Plaintiff). PRELIMINARY OBJECTION Counsel for Plaintiff contends, that since there are two Notices of Appeal contained in the Record of Appeal, against two different Rulings of the High Court, Kumasi, there is no clarity as to which of the Appeals is to be determined by this Court. According to Counsel for Plaintiff, this lack of clarity is further deepened by Counsel for 1st Defendant, who in his Written Submission refers to a date as being the date of the decision appealed against, when in fact no Ruling was delivered by the High Court, Kumasi on the said date. Counsel for Plaintiff argued further that, on 7th December, 2022 this Court restored the 1st Defendant’s Appeal which had been struck out for want of prosecution. This Appeal was filed against the Ruling of the High Court granting an Order of Interlocutory Injunction, against the Defendants, on 30th October 2020. The said Ruling is at pages 47 – 56 of the 2 Record of Appeal and the Notice of Appeal appears at pages 59 – 61 of the Record of Appeal. According to Counsel for the Plaintiff, the 1st Defendant then filed an Application for Stay of Execution, which the High Court dismissed on 29th January 2021. 1st Defendant filed another Appeal against the Ruling of the High Court, Kumasi. The said Ruling is at pages 108 – 116 of the Record of Appeal and the Notice of Appeal appears at pages 117 and 118 of the Record of Appeal. According to Counsel for Plaintiff, at page 1 of the Written Submission of Counsel for 1st Defendant, it was indicated that the instant Appeal is against the Ruling of the High Court, Kumasi dated 8th February 2022. Counsel for Plaintiff submitted that since there is no Ruling of the High Court, Kumasi dated 8th February 2022, it is unclear which of the Appeals before the Court the Plaintiff ought to respond to and for its lack of clarity, the Appeal be dismissed. Though the 1st Defendant filed no reply to the Submission of the Plaintiff, Counsel for 1st Defendant contended in Court, that the date stated as 8th February 2022, was in error and the Ruling the subject of this Appeal, is that dated 29th January 2021. A viva voce application by Counsel for 1st Defendant to correct his Written Submission, by amending the date on page 1 of the Written Submission, was resisted by Counsel for Plaintiff, who argued that granting leave to amend same, will prejudice his preliminary objection raised before the Court. This Court decided to determine the preliminary objection in its Judgment. We note that, notwithstanding the preliminary objection raised by Counsel for the Plaintiff, he proceeded in his Written Submission, to make submissions in respect of the Notice of Appeal filed against the Ruling of the High Court dated 29th January 2021, 3 urging this Court to consider his submissions on the merit of the Appeal, if the preliminary objection did not find favour with us. Page 1 of the Record of Appeal before this Court is clear on its face, that this is an Appeal from the Ruling of the High Court, Kumasi dated 29th January 2021. The said Ruling is at pages 108 - 116 of the Record of Appeal and the Notice of Appeal at pages 117 – 118 of the Record of Appeal. We are of the view that this Court and the parties are left in no doubt whatsoever, that the decision from which this Appeal is lodged, is that against the Ruling dated 29th January 2021, dismissing the Application for Stay of Execution of an Order for Interlocutory Injunction. It is this clarity which enabled Counsel for the Plaintiff, to proceed to file his Written Submission on behalf of the Plaintiff on the Appeal, notwithstanding his preliminary legal objection. The said error is therefore clerical and neither goes to the substance of the Appeal, nor occasions any prejudice to the Plaintiff. Rule 20 (9) of the Court of Appeal Rules, 1997 (CI 19), permits a party to amend any part of the Written Submission before Judgment. The said Rule provides as follows: “20. Written Submission 9) Notwithstanding anything to the contrary contained in these Rules, a party to a civil appeal may at any time before judgment apply to the Court to amend any part of the written submission and the Court may, having regard to the interest of justice and to a proper determination of the issues between the parties, allow the amendment on such terms as it may consider fit.” Furthermore, Rule 31 (a) and (b) of C.I 19 gives this Court powers to make orders including, orders of amendment in the following terms: “31. General powers of the Court 4 The Court may- (a) make any order necessary for determining the real question in controversy; (b) amend any defect or error in the record of appeal.” The general powers of this Court to effect an amendment and to do so suo motu, has long being established by several decided authorities, as stated by Apaloo JSC in the case of DOVE V. WUTA OFFEI [1966] GLR 299. In the said case, the Supreme Court held that the Court of Appeal was right in suo motu amending the title of a suit, to determine the real issues before it and avoid a multiplicity of suits. From the foregoing, we are of the view that it is necessary to effect an amendment to the Written Submission of 1st Defendant, to reflect the date of the Appeal before the Court, for a determination of the real questions in issue. This is particularly so, as Counsel for 1st Defendant prayed the Court to effect the said amendment, to correct the error. We therefore amend the date at page 1 of the Written Submission filed by the 1st Defendant, on 14th December 2022, by substituting 8th February, 2022 for 29th January, 2021, as the date of the decision of the High Court appealed against. This Court will therefore, not rest its decision on the clerical error. The preliminary legal objection is overruled. THIS APPEAL This instant Appeal is therefore against the Ruling of the High Court, Kumasi, dated 29th January 2021. By the said Ruling, the High Court dismissed the Motion on Notice for Stay of Execution of an Order for Interlocutory Injunction filed by the 1st Defendant, on the 5 ground that same was incompetent. Being aggrieved by the said Ruling, the 1st Defendant has filed the instant Appeal. FACTS PRECEDING THE APPEAL The determination of this Appeal, does not in our view, require a detailed narration of the facts of this case. The Plaintiff who averred that he is one of the surviving sons of one Daisy Vivian Buiterz (deceased), issued a Writ of Summons against the 1st and 2nd Defendants. The Plaintiff averred that the Defendants who were appointed Administrators of the Estate, to administer Froebel Education Centre and ten (10) plots of land at Afaseabon, have resorted to misappropriating and embezzling the resources of the Froebel Education Centre, to enrich themselves. He therefore, by his Writ of Summons, prayed for an order for the Defendants to account for their administration of the said Estate, among several other reliefs. By Plaintiff’s relief (e), endorsed on his Writ of Summons, he prayed for “an order of injunction restraining the Defendants, their agents, representatives, assigns and privies, and all those acting at their direction or behest, from in any manner continuing the running of the said institution [Froebel Educational Centre] in a manner adverse to all other persons interested in the said school and the Estate of the Daisy Vivian Buiterz (deceased), generally. The Writ of Summons and Statement of Claim were accompanied by a Motion on Notice filed by the Plaintiff, praying for an Order of Interlocutory Injunction against the Defendants, in terms similar to relief (e) endorsed on the Writ of Summons and reproduced supra. The Defendants entered Appearance to the Writ of Summons. The 1st Defendant then filed an Affidavit in Opposition to the Application. 6 Upon consideration of the Application for Injunction, the learned trial Judge granted the Order of Injunction on 27th October, 2020. The said Ruling can be found at pages 47 – 56 of the Record of Appeal. By the said Ruling, the Defendants were restrained from further managing the Froebel Education Centre and were ordered to render account of their stewardship to the Registrar of the Court, for preservation. The High Court further ordered that an Interim Management Committee was to be set up, comprising of all the children of Daisy Vivian Buiterz (deceased) and the Registrar of the Court, to manage the school, pending the final determination of the suit. Being aggrieved by this decision of the High Court, the 1st Defendant filed a Notice of Appeal which can be found at pages 59 – 61 of the Record of Appeal. After filing the said Appeal, the 1st Defendant filed a Motion on Notice for Stay of Execution of the Ruling of the High Court, dated 27th October 2020. The said Application for Stay of Execution, was dismissed by the High Court by its Ruling dated 29th January 2021, which is at pages 108 – 116 of the Record of Appeal. It is the dismissal of the Application for Stay of Execution, which has resulted in the instant Appeal, as the 1st Defendant being dissatisfied with the Ruling of the High Court, filed a Notice of Appeal which can be found at pages 117 and 118 of the Record of Appeal. THE SOLE GROUND OF APPEAL By the Notice of Appeal filed on 8th February 2021, the sole ground upon which the 1st Defendant intends to argue this Appeal is stated as follows: “The Ruling of the learned Judge was wrong having regard to the nature, content etc of the application for stay of execution”. Counsel for 1st Defendant in his Written Submission made several arguments, contending among others that the Judge refused to consider the merits of the Application for stay of 7 execution , choosing rather to dwell on extraneous matters. One of these extraneous matters according to Counsel for 1st Defendant, was the High Court Judge’s reliance on statute, such as section 4 of the Legal Profession (Professional Conduct and Etiquette Rules),1969 ( L.I 613). Counsel for 1st Defendant argued, that the High Court Judge erred, when he relied on section 4 of L1 613, in arriving at the conclusion that the Counsel for 1st Defendant did not disclose the chambers from which the Application for Stay of Execution emanated and also did not state the chamber’s registration number on the process. Another argument made by Counsel for 1st Defendant, is that the High Court Judge was wrong in making a finding, that the 1st Defendant did not disclose her residential address and occupation in her Affidavit in support of the Application for Stay of Execution, contrary to Order 20 r (4) (2) of the High Court Civil Procedure Rules, 2004 (C.I 47). Several other arguments were made by Counsel for 1st Defendant. Counsel for Plaintiff in his Written Submission argued, that the ground of appeal as set out by the 1st Defendant is improper, for though the ground alleges error on the part of the High Court Judge, no particulars of error were provided, as required by the mandatory rules of Court. According to Counsel for Plaintiff ,a failure to comply with the rules on proper formulation of grounds of appeal is fatal, for which reason the Appeal ought to be dismissed. In support of his arguments, Counsel for Plaintiff referred to the cases of SANDEMA – NAH VS. ASANGALISA & ORS [1996- 1997] SCGLR 302; BOSOMPEM VS. TETTEH KWAME [2011]SCGLR 397, among several others. Counsel for Plaintiff further argued, that the grant or refusal of an interim application and in this instance, a stay of execution, is an exercise of discretion by the High Court Judge which cannot be interfered with, except in exceptional circumstances. According to Counsel for the Plaintiff, no such exceptional circumstances exist and the Appeal ought to fail. 8 As already stated in this Judgment, the 1st Defendant did not file a reply to the Written Submission filed by the Plaintiff, through Counsel. WHETHER 1ST DEFENDANT’S GROUND OF APPEAL IS IN COMPLIANCE WITH C.I 19. Before we can proceed to determine the merits of the Appeal, we ought to first determine, whether or not, the sole ground of appeal filed by the 1st Defendant is improper and not in compliance with the rules of this Court, for which reason the Appeal must be dismissed. An appeal being a creature of Statute, a party who seeks to invoke the jurisdiction of this Court, must comply with conditions set out in the enabling statute. This age-old position of the law has been reiterated in several decisions by the Supreme Court. In the case of SANDEMA -NAH V. ASANGALISA and Others, cited by Counsel for Plaintiff, the Supreme Court per Acquah JSC (as he then was), quoted with approval the dictum of Akuffo -Addo C.J in NYE V. NYE [1967] GLR 76 @ 82 – 83 C.A (Full Bench), as follows: “ 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 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”. The jurisdiction of this Court to determine appeals from the High Court, emanates from 1992 Constitution pursuant to its Article 137. The Court’s Act, 1993, Act 459 by its Section 11, has restated the jurisdiction of the Court of Appeal. The Rules of Court Committee, pursuant to the powers conferred on it by Article 157 of the 1992 Constitution of Ghana, 9 “shall by constitutional instrument, make rules and regulations for regulating practice and procedure of all Courts in Ghana”. The rules made by the Rules of Court Committee for practice and procedure in the Court of Appeal is the Court of Appeal Rules,1997 (C.I9), as amended. Rule 8 of CI 19 states as follows: “8. Notice and grounds of appeal (1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as "the notice of appeal". (2) The notice of appeal shall be filed in the Registry of the court below and shall- (a) set out the grounds of appeal; (b) state whether the whole or part only of the decision of the court below is complained of and in the latter case specify the part; (c) state the nature of the relief sought; and (d) state the names and addresses of all parties directly affected by the appeal. (3) The notice of appeal shall be as in Form I provided in Part I of the Schedule to these Rules and shall be accompanied with sufficient number of copies for service on all parties. (4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated. 10 (5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (6) No ground which is vague or general in terms or which: discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion, or on application by the respondent. (7) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just. (8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”. A reading of Rule 8 of C.I 19 and in particular Rules 8 (4), 8 (5) and 8 (6) make it clear, that a ground of appeal shall not contain a narrative or argument. The said ground shall also not be vague or in general terms such that it does not disclose a reasonable ground of appeal. Any such ground of appeal shall not be permitted, unless the said ground is that the Judgment is against the weight of evidence. Any ground of appeal which is not permitted by this rule, may be struck out by the Court on its own motion, or upon application by the Respondent. Therefore, a failure to comply with rules in formulating the appropriate grounds of appeal. may be fatal to an appeal, causing same to be struck out, and the appeal dismissed. 11 In the case of F.K.A. COMPANY LIMITED, NII TEIKO OKINE (SUBSTITUTED BY NII TACKIE AMOAH VI) VRS. NII AYIKAI AKRAMAH II (SUBSTITUTED BY NII DODOO LOMOTEY, KWAKUFIO, TOGBUI OKRU EBENEZER): CIVIL APPEAL N0 J4/1/2016; 13TH APRIL 2016, the Supreme Court speaking through AKAMBA JSC, on non-compliance with Rule 6 of the Supreme Court Rules (C.I 16), which is in pari materia with Rule 8 of the Court of Appeal Rules (C.I 19), stated succinctly as follows: “ It is important to stress that the adjudication process thrives upon law which defines its scope of operation. It is trite to state for instance that, nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision, be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold”. In the case of ZAMBRAMA V. SEGBEDZI [1991] 2 GLR 221@ 225 – 226, KPEGAH J.A (as he then was), opined on Rule 8 of LI 218 of the then Court of Appeal Rules, clearly in pari materia with our current Court of Appeal Rules (CI 19), as follows: “I must say without any fear of contradiction that ground (2) embodied in the notice of appeal is objectionable and inadmissible as a legitimate ground to be urged in this court. Rule 8 (2) of the Court of Appeal Rules, 1962 (L.I. 218) states: "(2) If the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated." And rule 8 (4) also states: "(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence. 12 The implication of these rules is that an appellant after specifying the parts of the Judgment or order complained of, must state what he alleged to have been found by the trial judge or what error he had made on point of law. I do not think it meets the requirements of these rules to simply allege misdirection on the part of the trial judge. The requirement is that the ground stated in the notice of appeal must clearly, and concisely indicate in what manner the trial judge misdirected himself, either on the law or on the facts. Stating in the notice of appeal that the trial judge misdirected himself, either on the law or on the facts and gave an erroneous decision without specifying, how he misdirected himself, is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour, shall understand on what ground it is impugned”. In the case of DAHABIEH V. SA TURQUI & BROTHERS [2001- 2002] SCGLR 498, the Supreme Court in stating the reasons behind the provision in Rule 6 of CI 16 (in pari materia with Rule 8 of CI 19), stated as follows: “The intention behind Rule 6 of the Supreme Court Rules (CI 16), is to narrow the issues on appeal and shorten the hearing by specifying the error made by the lower courts, or by disclosing, whether or not, the point at issue had earlier been raised. By that way, both the Court and counsel for the respondents would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyers know well in advance, what points of law are being raised, so that they may prepare their case and marshal their authorities. Whilst an indication that the point of law was not raised in the Court below, may help the Court resolve the issue faster. In the instant case, ground (1) of the grounds of appeal alleging that the Judgment is wrong in law is in effect saying that there is an error of law in the Judgement. If so, then 6 (2) requires the appellant to specify the ground of appeal in that particular complaint, amounting to an error of law. Having failed to do so ground (1) of the grounds of appeal is inadmissible”. 13 Also, in the case of FAUSTINA TETTEH VS. T CHANDIRAM & CO. GH LTD & 3 ORS; CIVIL APPEAL NO; J452/2018, the Supreme Court per MARFUL JSC, relied on the case of DAHABIAEH V. SA TURQUI, supra and in striking out offending grounds of appeal, held thus: “The Appellant failed to particularize the errors alleged by the said grounds to enable this Court effectively address same as required by law. The errors alleged cannot be inferred sufficiently from the wording of the grounds to enable us address same. Accordingly, the offending grounds (1) – (10) will be struck out as they are non -complaint with the Rules of Court”. For ease of reference, the only ground of appeal filed by the 1st Defendant in this Appeal, is reproduced below: “The Ruling of the learned Judge was wrong having regard to the nature, content, etc of the application for stay of execution”. We find this ground of appeal to be vague and in such general terms as to disclose no reasonable ground of appeal. The ground of appeal does not disclose the nature of error complained of by the 1st Defendant, who is the Appellant. A ground such as this, leaves this Court in a quandary as to the issues to be determined on this ground of appeal. The ground of appeal clearly offends against Rule 8 (6) of C.I 19 and is inadmissible. Consequently, the ground of appeal is struck out. There being no other ground of appeal, this Court is unable to determine the merits of the Appeal. This Appeal is accordingly dismissed. SGD. HAFISATA AMALEBOBA (MRS) J.A. 14 (JUSTICE OF APPEAL). SGD. I agree: GEORGINA MENSAH - DATSA (MRS) J. A (JUSTICE OF APPEAL). SGD. I also agree: CHARLES EDWARD EKOW BAIDEN J.A. (JUSTICE OF APPEAL) COUNSEL: KWASI AFRIFA ESQ. FOR THE PLAINTIFF/RESPONDENT. NANA OBIRI BOAHEN ESQ. FOR THE 1ST DEFENDANT/APPELLANT. 15 16