REPUBLIC v. COMMISSIONER OF INCOME TAX; EX PARTE MAATSCHAPPIJ DE FIJNHOUTHANDEL N.V. (FYNHOUT)

JUDGMENT OF AZU CRABBE C.J.

Azu Crabbe C.J. delivered the ruling of the court. This was an application for an order setting aside and vacating the judgment of the full bench of the Court of Appeal reported sub nom. Commissioner of Income Tax v. Maatschappij De Fijnhouthandel N. V.(Fynhout) [1974] 1 G.L.R. 283 given in the above case on 18 March 1974. The history of the case can be briefly stated as follows: On 7 December 1970, the Court of Appeal allowed in favour of the applicants an appeal against a judgment of the High Court, Accra, refusing an application for an order of certiorari, and quashed assessments of tax amounting to ¢123,500.00 made by the respondent, the Commissioner of Income Tax, on the applicants: see [1971] 1 G.LR. 213, C.A. On 2 June 1971, the respondent filed a notice of appeal in the former Supreme Court against this judgment, and this notice of appeal was served on the applicants on 10 December 1971. Subsequently, by a letter dated 20 June 1973, the registrar of the Court of Appeal called upon the solicitor of the respondent to file a statement of his case in pursuance of the directives from the Chief Justice dated 15 May 1973. This letter was copied to the applicants, so that they actually became aware of the appeal by the respondent. The respondent in due course filed the statement of his case, and a copy of this statement was served on the solicitors of the applicants. In paragraph (3) of the applicants' affidavit this fact was admitted. The procedure to be followed after this stage had been reached in the appeal is prescribed by rule 13 (4) of the Supreme Court Rules, 1970 (C.I. 13), as follows:

"(4) A party upon whom an appellant's statement is served shall, if he wishes to contest the appeal, within three weeks of such service, or within such time as the Court upon terms may direct, file the statement of his case in answer to the appellant's statement."

The applicants did not file any statement of their case as required by this rule. On 24 January 1974, the registrar of the Court of Appeal informed the parties that the full bench had decided to exercise its general powers under rule 23 (1) of the Supreme Court Rules and would accordingly determine the appeal and give judgment in court without further argument. Judgment was given on 18 March 1974, and the applicants admit in paragraph (5) of their affidavit that their solicitors had notice of this. The judgment allowed the appeal and the assessment of the applicants by th