DEI XI v. DARKE XII

JUDGMENT OF ADADE J.S.C.

The point of law which arises for determination in this application is, essentially, whether this court has jurisdiction to restore to the list, and hear on the merits, an appeal which has been deemed to have been struck out by operation of law under rule 13(2) of the Supreme Court Rules, 1970 (C.I. 13). The relevant portions of the said rule 13 read as follows:

"13.(1) The appellant shall, within three weeks of being notified that the record is ready, file with the Registrar a statement [p.323] of his case based on the grounds of appeal as set out in the notice of appeal.

(2) Where the appellant does not file the statement of his case in accordance with the provisions of the preceding sub-rule the appeal shall be deemed to have been struck out and the Registrar shall so inform the parties."

The facts grounding this application, as can be ascertained from the rival affidavits of the parties, are that on 22 February 1989 the High Court, Accra delivered a judgment in the above case against the defendants. The judgment was affirmed by the Court of Appeal on 19 July 1990. Having lost twice in succession the defendants, by the provisions of the Courts (Amendment) Law, 1987 (P.N.D.C.L. 191), needed leave to appeal to the Supreme Court. That leave was given by the Court of Appeal on the same day, i.e. 19 July 1990. A notice of appeal was duly filed, the record was settled, compiled and despatched by the Court of Appeal to the Supreme Court. Notice of the despatch of the record, Form 5, was served on the appellants on 15 January 1991. By rule 13(1) of C.I. 13, the appellants were obliged to file a statement of their case within three weeks from 15 January 1991, ie not later than 5 February 1991. They failed to do that. The appeal was therefore, under rule 13(2) of C.I. 13, deemed to have been struck out after 5 February 1991. Accordingly, by notice dated 1 March 1991 the Registrar of the Supreme Court informed the parties that the appeal had been deemed to have been struck out. On 4 March 1991 the defendants, through their solicitors, filed a statement of their case, and on 13 March 1991 brought the present application "to relist the appeal... and for such further or other orders as to this honourable court may seem fit." The applicants do not ask specifically for extension of time in which to file their statement of case, so that, if accepted, time may be extended to cover the date on which the statement was actually filed. It would