JONAS ADDO MCKAY & ORS v. DANIEL MENSAH & ANOR

R U L I N G

DENNIS ADJEI, J.A.:

This application was brought under Rule 34 of the Court of Appeal Rules, 1997, C. I. 19. It provides as follows: -

“The Court shall not review a judgment after it has been delivered unless it is satisfied that the circumstances of the case are exceptional and that in the interest of Justice there should be a review.”

On 16th January, 2012 the 1st Defendant/Appellant/Applicant’s application for a repeat stay execution of the judgments delivered by the High Court on 25th October 2010 and 19th January 2011 were dismissed by this Court because the Court was of the opinion that both appeals were filed out of time and there was no appeal pending to cloth the Court with jurisdiction to entertain the application. The applicant’s contention is that the appeal filed against the order made on 19th January 2011 was filed within time and this Court erred in law when it held that the appeals against both decisions were filed out of time. It is therefore the case of the applicant that there is an error on the face of the record that makes his case an exceptional one to be reviewed by this Court.

The application for review was filed on 25th January, 2012, that is ten (10) days after the applicant’s application had been dismissed. The time within which a review application should be filed was not provided by the Rules of Court Committee in C.I. 19 and the Court of Appeal too has not developed any such practice. The application was filed within ten (10) days after his application for the stay of execution had been dismissed on technical grounds and would be taken as having been filed timeously.

The thrust of this review application is that on 25th October, 2010; the High Court gave judgment in favour of the Plaintiff/Respondent and made an order for accounts in respect of which the Court thought it was wrongly calculated by the Plaintiff. The Registrar of the trial Court was to do the accounting and calculate the interest payable thereon.

The Registrar submitted the accounts and on 19th January, 2011 the trial High Court made some orders in respect same.

On 14th April, 2011, the Applicant herein filed an appeal against the two decisions of the High Court. The Court of Appeal was of the opinion that the appeal was filed out of time and there was no appeal pending for the stay of execution to be grounded on it and the Court therefore struck out the application for stay of execution as incompetent.

The time within which to appeal in civ