JOSEPH v. FARISCO (GHANA) LTD.
November 25, 1991
SUPREME COURT
GHANA
CORAM
- WUAKU
- AMUA-SEKYI
- OSEI-HWERE JJ.S.C.
- KPEGAH
- OFORI-BOATENG JJ. A
Areas of Law
- Civil Procedure
November 25, 1991
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Kpegah J.A., considered a motion by the appellant in civil appeal No. 8/91 to set aside the registrar’s notice of dispatch of the record of appeal (Form 5). After service of Form 5 on 30 September 1991, counsel for the applicant, Mr Neils Lutterodt, returned the process and complained of omissions—an omitted page of the Court of Appeal judgment, missing portions of his submissions, additional grounds of appeal, and lists of authorities—asserting preparation within three weeks was almost impossible. Mr Johnny Hansen, solicitor for the respondent, did not oppose. The Court held that CI 13 contains no provision permitting such an application; rule 16(1) identifies forum, not jurisdiction. It refused to invoke inherent jurisdiction to avoid rule 13(2)’s automated sanction regime and noted counsel should have filed and, if necessary, sought amendment under rule 13(11). The application was dismissed.
JUDGMENT OF KPEGAH J.A.
Kpegah J.A. delivered the ruling of the court. In these proceedings, the appellant-applicant (hereinafter referred to as the applicant) is seeking an order of this court to set aside the issuance of the notice of dispatch of the record of appeal (Form 5) which was served on his solicitors. The prayer of the applicant is akin to a motion to set aside the service of a writ of summons as provided for under Order 12, r. 24 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A).
When the motion came up for hearing, learned counsel for the applicant, Mr Neils Lutterodt, informed the court that Mr Johnny Hansen, solicitor for the respondent, had indicated to him that he was not opposed to the application. The court interpreted this concession to the applicant by Mr Johnny Hansen to mean only that he has no assistance to offer the court; and since the issue is one of law, [p.467] we decided to take argument from Mr Lutterodt and to examine the problem.
The applicant is the appellant in civil appeal No. 8/91 which is pending in this court. On 30 September 1991, notice to the parties of the dispatch of the record of appeal, Form 5, was duly served on the solicitors for the applicant. The registrar of the court below took this step in discharge of a statutory duty imposed on him by rule 12(1) of the Supreme Court Rules, 1970 (CI 13).
When the applicant's solicitors were served with Form 5, they took the rather unprecedented step of returning the process the same day on the ground that there were certain omissions in the record of appeal which made it almost impossible for them to prepare their statement of case within the stipulated time of three weeks as required by the rules of this court. It seems to us that the applicant's solicitors might have been in possession of the record of proceedings before the registrar served them with the notice of dispatch of the record of appeal to this court.
We think it is prudent, since it will aid a better appreciation of the ruling, if the relevant paragraphs of Mr Neils Lutterodt's affidavit in support of the motion are quoted. Paragraphs (3)-(5) of the said affidavit state:
“(3) That upon receipt of the Form 5, I wrote to the Registrar of the Supreme Court, Accra on 30 September 1991 notifying him of the many transparent errors and omissions in the record of proceedings, notably the omissions of a part of the judgment of the Court of Appeal which judgment forms the subject of our appeal to