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 BEFORE HER LADYSHIP JUSTICE HANNAH TAYLOR (MRS). SUIT No: C12/57/24 GODFRED APPIAH …PLAINTIFF/ APPELLANT PAKYI No. 2 ASHANTI REGION VRS AKOSUA SEM PAKYI No. 2 ASHANTI REGION …DEFENDANT/ RESPONDENT _________________________________________________ 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 the defendant at the District Court, Manso Nkwanta; - 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 is laying adverse claim to it. b. An order of interlocutory and subsequent perpetual injunction restraining the defendant, her agents, assigns, privies, workmen and all claiming through her from further interfering with plaintiff’s ownership/possession of the said land in the relief (a) supra. c. General damages for trespass and any other cost the court deems fit. 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 for the 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/possession of land which he has encroached. ii. General damages for trespass and any other order or cost the court deem fit. iii. A request for the court to come to the said plot and inspect the plot in other (sic) to take a decision. 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 of appeal as follows; - “The plaintiff whose duty it remains to prove his claims gave a very skewed evidence as his root of title and mode of acquisition of the 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 as not being proved. Judgment entered for the 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 the receipt of the record of appeal. 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 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 appeal was filed on 22nd of July 2020, five (5) months have elapsed. This throws in the question, whether the court’s jurisdiction has been properly invoked? This is a legal question and a court called upon to make a determination on any subject must first be satisfied that it has jurisdiction and for that matter the power to do so. The appellate jurisdiction of the High Court is created under article 140 of the 1992 Constitution and repeated under Section 15 of the Courts Act of 1993, 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 the holding 1 as follows; - “An appeal is a creature of statute and if the statute did not give the right of appeal that was the end of the matter.” 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 of NYE v. NYE [1967] GLR 82-83 as follows;- “…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 power are creatures of statute, 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 can ever materialize.” Thus, a person who desires to invoke the appellate jurisdiction of the Court and for that matter the High Court must do so within the ambit of the law. Section 21 of the Courts Act, 1993, Act 459 is on the right of appeal 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 the High 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. On time for bringing an appeal, Order 51 rules 3 and 4 of CI47 provide as follows; - 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 of the District Court shall file a notice of appeal within three months from the date of the decision appealed against. 4(1) An application to extend the time in which to appeal may be made to the court or to the court below. (2) No application shall be made after the expiration of one month after the time specified in rule 3 within which an appeal may be brought. (4) When time is so extended, the date of the order granting the extension and the court by which the order is made shall be set out in the notice of appeal. 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] 2 SCGLR 732 at 742 Anin Yeboah JSC 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 of time is void. See ATTA KWADWO v. BADU [1977] 1 GLR 1”. In the holding 2 of the Tindana case, the Supreme Court held; the issue of whether or not an appeal was filed outside the statutory period was one which went to 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 statutory period of three months. 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 parties or their 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 part of the record. For the reasons set per the foregoing, the appeal being incompetent same is dismissed. [SGD] JUSTICE HANNAH TAYLOR (MRS) JUSTICE OF THE HIGH COURT LEGAL REPRESENTATION: NANA BANYIN SIMPSON FOR PLAINTIFF/APPELLANT YAHAYA SEIDU FOR DEFENDANT/RESPONDENT 8