KHOURY AND ANOTHER v. MITCHUAL AND ANOTHER
1990
SUPREME COURT
GHANA
CORAM
- ADADE
- TAYLOR
- FRANCOIS
- AMUA-SEKYI JJ.S.C.
- OSEI-HWERE J.A
Areas of Law
- Civil Procedure
1990
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court dismissed an application for leave to appeal filed by F. and M. Khoury due to its untimeliness in the Court of Appeal. The Court reaffirmed that filing deadlines must be adhered to under procedural rules and subsequent applications based on improperly filed ones are incompetent. It was ruled that the Supreme Court cannot rectify procedural defects unless special reasons are provided, which the applicants failed to do. The court emphasized the importance of justice over procedural technicalities but upheld that the rules must be applied strictly to prevent misuse.
JUDGMENT OF ADADE J.S.C.
F. and M. Khoury, the defendant-applicants (hereinafter called the applicants) lost an action in the High Court, Sekondi on 15 May 1987. They appealed to the Court of Appeal, and again lost on 7 July 1988 (see Khoury v. Mitchual [1989-90] 1 G.L.R. 161, C.A.) Having lost twice in a row, the applicants needed leave if they wanted to appeal further to the Supreme Court: see section 3 (2) of the Courts Act, 1971 (Act 372) as amended by the Courts (Amendment) Law, 1987 (P.N.D.C.L. 191), s. 1. Accordingly, on 3 October 1988 the applicants filed an application to the Court of Appeal asking for the requisite leave. The application was not accompanied by any affidavit stating the grounds for it as is the normal practice. The said affidavit was filed six months later, on 11 April 1989. For the purposes of this ruling, it is not relevant for me to deal with the propriety or otherwise of filing a motion unaccompanied by an affidavit notwithstanding the arguments pressed on us by counsel. I shall therefore ignore that issue.
It is enough for my purposes that at the hearing of the application in the Court of Appeal, Mr. E. D. Kom, counsel for the plaintiff-respondents (hereinafter called the respondents) took the objection in limine that an application for leave should be filed within fourteen days of the date of the judgment as provided by the Supreme Court Rules, 1970 (C.I. 13), r. 7 and that the application filed on 13 October 1988, relative to the judgment of 7 July 1988, was woefully out of time and was incompetent. The Court of Appeal agreed with the submission, and on 8 May 1989 dismissed the application. Eleven days later, on 19 May 1989, the applicant filed the present application to this court asking "for leave or, in the alternative, special leave" to appeal.
[p.261]
Mr. Kom, counsel for the respondents, has again raised a preliminary objection to the competency of this application. He formulates his objection as follows in paragraphs 7 and 8 of the affidavit in opposition filed on 26 May 1989:
“(7) . . . since the applicants' notice of motion for leave to appeal was not dismissed on the merits but on the grounds that it was improperly before the Court of Appeal the applicants cannot repeat their application for leave before the Supreme Court. The right to re-apply to the Supreme Court is only for those whose applications were properly before the Court of Appeal and were dismissed on the merits.
(8) . . . any other interpret