CITY INVESTMENT CO. LTD v. JULIANA ADADE & 2 ORS.

KUSI-APPIAH, (J.A.):

This is a motion for leave to file notice of appeal out of time.

The essence of the application is that, the appeal has good chance of succeeding.

Two points were made to substantiate that view point.

The first was that the appeal raises important legal issues such as the position of the court’s sheriff vis-à-vis an equitable mortgagee with regard to the property of a judgment debtor.

The second point made in favour of the applicant was to ascertain whether or not the Borrowers and Lenders Act, 2008 (Act 773) is applicable to the relationship between the judgment debtor and the claimant in this case.

The 1st claimant/applicant, dissatisfied with the ruling of the trial High Court (Commercial Division), Accra dated 25th June, 2018 in an interpleader claim filed notice of appeal against the said ruling/decision on 13th July, 2018, which was eighteen (18) days from the date of the decision or order contrary to the fourteen (14) days as provided under Order 44 r. 13 (5) of the High Court (Civil Procedure) Rules 2004 of C. I. 47.

The basic issue in this application is whether or not the Court of Appeal has jurisdiction to grant leave to the applicant to file appeal out of time under Order 44 r. 13 (5) of C. I. 47.

The brief facts of the case are as follows: “The plaintiff/respondent obtained judgment against the 1st defendant on 27th of June, 2017 for recovery of an amount of Gh¢6,508,407.15 together with interest and cost.

To execute the judgment debt and cost, the plaintiff/respondent attached property described as H/No. A 648/14, Cyeas Street, Dansoman, Accra.

It is the attachment of the property that has provoked the ire of the two claimants in filing the notice of claim and affidavit of interest in the subject property.

The trial court after hearing evidence from the parties, dismissed the claim of the claimants and granted leave for the plaintiff/respondent to attach and auction the subject property, the Dansoman House belonging to the 1st claimant/applicant herein.” Order 44 r. 13 (5) of C. I. 47 which deals with the powers of court in hearing Interpleader application provides: “(5) An appeal against any judgment or order given or made under sub-rule (4) shall be filed within fourteen (14) days from the date of judgment or order” (Emphasis mine) By this provision, the applicant herein was enjoined by Order 44 r. 13 (5) of C. I. 47 to have filed his appeal against the judgment or ruling of the trial High Court (Commercial D