OTOO v. DUA
1991
COURT OF APPEAL
GHANA
CORAM
- LAMPTEY
- ESSIEM
- PEGAH JJ.A
Areas of Law
- Civil Procedure
1991
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal addressed a preliminary objection to an appeal filed by the appellant against an interlocutory ruling and a final order made by Lutterodt J. The interlocutory appeal was filed out of time and deemed invalid, while the appeal against the final order was ruled valid and properly before the court. Justice Kpegah dissented, arguing that the entire notice of appeal should be struck out for incompetence, but the majority overruled the preliminary objection and allowed the case to proceed on the merits of the final order appeal.
Lamptey J.A. delivered the judgment of himself and of Essiem J.A. After hearing an interlocutory motion, Lutterodt J. read her ruling on 28 February 1990. On 12 April 1990, the trial judge delivered her "final order" in that interlocutory application. She dismissed the action of the plaintiff. Aggrieved by the "ruling" and the "final order", the plaintiff filed a notice of appeal in the following terms:
"Take notice that the plaintiff-applicant herein being totally dissatisfied with the ruling of Lutterodt J. delivered on 28 February 1990 and the order made pursuant thereto on 12 April 1990 doth hereby appeal to the Court of Appeal."
When the appeal came before us, learned counsel for the defendant-respondent (hereinafter referred to as the respondent) raised a preliminary objection based on the grounds that: (1) the notice of appeal was incompetent in the form in which it was couched; and (2) the appeal against the ruling of the 28 February 1990 was filed out of time and without leave of court. He submitted that the appeal was not properly before this court and the same must be dismissed in limine. Learned counsel for the plaintiff-appellant (hereinafter referred to as the appellant) conceded that the second ground of objection was well-founded and meritorious. On the first ground of objection he submitted that the notice of appeal satisfied the rules of court. He contended that the procedure followed by the trial judge in hearing and determining the application led to the drafting and formulating of the notice of appeal in that form. He invited this court to hold that the appeal was properly before it.
The second ground of objection was presented to the court with no problem. Since the ruling was an interlocutory one, the right of appeal must be exercised by the aggrieved party within fourteen days. This was not done in the instant case. The objection founded on the ground that the appeal was filed out of time is unassailable and well founded and we so find. We strike out the part of the notice of appeal which sought to complain against the ruling of 28 [p.250] February 1990.
The other ground of objection was that the notice of appeal contained two separate and distinct matters, namely (1) the ruling dated 28 February 1990 and (2) the orders made by the court on 12 April 1990. We are of the view that to appreciate the force of the arguments made by counsel for the parties, a brief statement of the facts of what transpired before the trial judge mus