Appiah V Sem (C12/57/24) [2024] GHAHC 426 (25 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE ASHANTI REGION, KUMASI HELD ON 25TH DAY OF OCTOBER 2024 BEFOREHER LADYSHIPJUSTICE HANNAHTAYLOR (MRS). SUITNo: C12/57/24 GODFREDAPPIAH …PLAINTIFF/ APPELLANT PAKYINo. 2 ASHANTI REGION VRS AKOSUA SEM …DEFENDANT/RESPONDENT PAKYINo. 2 ASHANTI REGION _________________________________________________ JUDGMENT The Plaintiff/Appellant is hereinafter referred to as the Plaintiff and the Defendant/Respondent is referred to as the defendant. The parties are resident at Pakyi No. 2 in the Ashanti region on land allegedly acquired by each of them. On 23rd July, 2018, plaintiff sought for a writ of summons to be issued for the following reliefs against thedefendant atthe District Court, Manso Nkwanta; - 1 a. Declaration of title to and recovery of possession of building plot 81 Block D measuring 100m x 120m, which the defendant has encroached on, developed and islaying adverse claim to it. b. An order of interlocutory and subsequent perpetual injunction restraining the defendant, her agents, assigns, privies, workmenand all claiming through her from further interfering with plaintiff’s ownership/possession of the said land inthe relief(a) supra. c. Generaldamagesfortrespass andany other cost thecourt deemsfit. It seems this application was accompanied with a statement of claim and upon service on the defendant, she also filed a statement of defence and counterclaimed forthe following reliefs against the plaintiff, - i. An order for interlocutory injunction and subsequent perpetual injunction restraining the plaintiff, his agents, assigns, workmen and all claiming through him from further interfering with defendant’s ownership/possessionofland which he hasencroached. ii. General damages for trespass and any other order or cost the court deem fit. iii. Arequest for thecourt tocome tothe said plot and inspect theplot in other(sic) to takeadecision. 2 The trial court took evidence from the parties and their witnesses and on 19th February 2020, delivered its judgment, concluding per the pages 35 and 36 of the record ofappealasfollows; - “The plaintiff whose duty it remains to prove his claims gave a very skewed evidence as his root oftitle and mode of acquisition ofthe land received no credence. As already stated, in seeking for a declaration to title of a land and recovery of possession, a proof of his root of title, mode of acquisition and various acts of possession exercised over the land cannot be glossed over. This onus of proof placed on the plaintiff could not be discharged on the preponderance of probabilities as in the mind of the court the evidence led is not convincing and more probable compared to the testimony of the defendant. Therefore, I dismiss the claims of the plaintiff asnotbeing proved.Judgment entered forthe defendant.” Irked by the decision of the trial District Court, the plaintiff mounted the present appeal on 22nd of July 2020 on grounds that the judgment is against the weight of evidence and gave an indication that additional grounds of appeal will be filed upon thereceipt ofthe record ofappeal. Subsequently, the plaintiff prayed the court for leave to file additional grounds of appeal and the counsels for the parties have also filed written submissions. What stands striking in this appeal is that the judgment complained of as found at pages 28 to 36 of the record of appeal was delivered by His Worship Thomas Boadi Soyori 3 on 19th February 2020. However, the notice of appeal on which the appeal is mounted found at page 37 of the record of appeal was filed on 22nd July 2020. In the notice of appeal, it is indicated that the judgment was delivered by Her Worship Comfort Asamoah Sarpong on 4th of June 2020. In the written submissions filed by the learned counsels for the parties, they both make reference to the judgment as delivered by His Worship Thomas Soyori on 19th of February 2020 found at pages 28 to 36 of the record of appeal. This observation largely suggests that at the time the appealwas filed on22ndofJuly 2020,five (5)months haveelapsed. This throws in the question, whether the court’s jurisdiction has been properly invoked?This is alegal questionand acourt called upon tomake a determinationon any subject must first be satisfied that it has jurisdiction and for that matter the powertodo so. The appellate jurisdiction of the High Court is created under article 140 of the 1992 Constitutionand repeated under Section15ofthe Courts Actof1993,Act 459. The right to appeal is also a creature of statute. No one has an inherent right of appeal unless the law makes provision for same. In the case of IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984 - 1986] 2 GLR 226, the Court of Appeal held per theholding 1asfollows; - “An appeal is a creature of statute and if the statute did not give the right of appeal thatwas the end ofthe matter.” 4 The eminent author, S. A. Brobbey in his book “Essentials of The Ghana Law of Evidence” at page 516 noted that a much fuller statement of the law was given in the case ofNYE v.NYE [1967] GLR82-83 as follows;- “…There is no inherent right of appeal in a litigant; nor indeed is there an inherent powerin any courtto hearappeals. Boththe right and power are creaturesofstatute, unless the enactment creating the right of appeal and the power to hear the appeal is explicit, clear and unambiguous in its language, no such right and no such power canevermaterialize.” Thus, a person who desires to invoke the appellate jurisdiction of the Court and for thatmatterthe HighCourtmust do so within theambit ofthe law. Section 21 ofthe Courts Act, 1993, Act 459 is onthe right ofappeal to the High Court. Under section 21 (2) in particular, it is provided that a person aggrieved by any judgment of a District Court in any civil matter may appeal against the judgment to theHigh Court. Clearly provided for, in the High Court [Civil Procedure] Rules, 2004, CI 47, under Order 51 are the rules governing appeals from the District Court to the High Court. An appeal to the High Court shall be brought by a notice referred to as the notice of appeal. Ontime forbringingan appeal,Order51rules3and4ofCI47provide as follows; - 5 3(1) Subject to rule 4, a person wishing to appeal under section 21(1) of the Courts Act, 1993 (Act 459) against a decision ofthe District Court shall file a notice ofappeal withinthree monthsfromthedate ofthedecision appealed against. 4(1) An application to extend the time in which to appeal may be made to the courtortothe courtbelow. (2) No application shall be made after the expiration of one month after the time specified inrule 3within whichanappealmay be brought. (4) When time is so extended, the date of the order granting the extension and thecourt by which the orderis made shall be set out in thenotice ofappeal. On notice of appeal filed out of time, the Supreme Court in the case of TINDANA (NO. 2) v. CHIEF OF DEFENCE STAFF & ATTORNEY –GENERAL (NO.2) [2011] 2SCGLR732at 742 Anin YeboahJSC held that;- “The appeal lodged outside the three months was therefore outside the statutory period provided for under Rule 9 of CI 19. It is settled on a long line of authorities that an appeal filed outside the statutory period provided for under the rules without any valid extension oftime is void. SeeATTA KWADWOv. BADU [1977] 1 GLR1”. Inthe holding 2of the Tindana case, the Supreme Courtheld; the issue of whether or not an appeal was filed outside the statutory period was one which went to 6 jurisdiction. A jurisdictional issue must be addressed by any Court entertaining any proceedings. It follows that by parity of reasoning, the appeal as it stands is incompetent and incapable of invoking the appellate jurisdiction of the Court as it has been filed outside the statutoryperiod ofthreemonths. There is no indication that an extension of time to file an appeal within the one- month grace has been sought as none is disclosed per the record or on the notice of appeal. The date set out in the notice of appeal is misleading. I have tried to gather from the record forwarded, how the appellant came by the date stated in the notice of appeal, but cannot find any. The record of appeal, is made up of the originating process, the pleadings, if any, certified copies of all documents admitted as evidence and those rejected, the notes of evidence, any interlocutory proceedings or orders, the judgment or order of the court below, the notice of appeal and addresses of the partiesortheir lawyers. The record of appeal makes no disclosure of any judgment written by Her Worship Comfort Asamoah Sarpong and delivered in June 2020. In REPUBLIC v. ACCRA SPECIAL CIRCUIT COURT; EX PARTE AKOSAH [1978] GLR 212, Sowah JA (as he then was) held that an appeal must be heard only when the decision appealed is partofthe record. 7 For the reasons set per the foregoing, the appeal being incompetent same is dismissed. [SGD] JUSTICEHANNAH TAYLOR (MRS) JUSTICEOF THEHIGH COURT LEGALREPRESENTATION: NANA BANYINSIMPSONFORPLAINTIFF/APPELLANT YAHAYASEIDU FORDEFENDANT/RESPONDENT 8