Gbewonyo v Adorkor

LAMPTEY JA. On 24 April 1994 the High Court, Accra entered judgment for one Alice Adorkor (hereinafter referred to as the respondent) against James Gbovoncy (hereinafter referred to as applicant). The trial judge declared title to house number, 328 North Kaneshie, Accra in the respondent. He ordered that the respondent recover possession of the said house from the applicant. He dismissed the counterclaim of the applicant. Aggrieved and dissatisfied with the said judgment the applicant filed his notice of appeal on 20 June 1994. In due course the applicant was formally invited by the registrar to fulfil the conditions of appeal. The applicant failed and neglected to attend on the registrar and also to fulfil conditions of appeal. The appeal was accordingly dismissed because of the failure on the part of the applicant to fulfil the conditions of appeal.

The applicant applied to this court praying for an order re-listing the appeal. The respondent vehemently opposed the application.

In arguing the motion for the re-listing of the appeal, counsel for the applicant repeated in substance the matters contained in the affidavit in support of the motion; namely, that at the material time the applicant had travelled outside Accra, and further that he, counsel for the applicant was personally told by an official of the registry that time would be enlarged by that official to enable the applicant to fulfil the conditions of appeal whenever he returned to Accra. In reply, counsel for respondent disputed and challenged the statement that applicant travelled outside Accra. He submitted that the power to enlarge time in the circumstances was vested in a court or a judge. He contended that an official of the court had no power or right to enlarge time. He submitted that the failure on the part of the applicant to fulfil the conditions of appeal had not been satisfactorily explained. He invited the court to refuse the application.

The Court of Appeal Rules 1962 (LI 218), rule 19(3) provides as follows:

“19(3) An appellant whose appeal has been dismissed under this rule may apply by motion on notice that his appeal be restored, and the Court may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

The test laid down in the rule is a fairly simple one. The applicant is enjoined to give a good and sufficient cause to explain the delay and inability to fulfil the conditions of ap