REPUBLIC v. HIGH COURT, HO; EX PARTE EVANGELICAL PRESBYTERIAN CHURCH OF GHANA AND ANOTHER

JUDGMENT OF ADADE AG. C.J.

This is an application for certiorari in which the defendant-applicants (hereinafter referred to as the defendants) are asking that a ruling of the High Court, Ho dated 19 October 1990, should be brought up and quashed on the ground that the said court lacked jurisdiction, or else exceeded its jurisdiction.

The question to be resolved at the outset is whether the plaintiff-respondents (hereinafter referred to as the plaintiffs) were in order in going to the High Court with any application at all. Did the High Court have jurisdiction to entertain the application? In other words, after an appeal has been lodged with the Court of Appeal against a decision of the High Court, at what point in time does the High Court cease to have jurisdiction to take applications relative to the subject-matter of the appeal? Rule 21 of the Court of Appeal Rules, 1962 (L.I. 218) says:

"21. After an appeal has been entered and until it has been finally disposed of, the Court [of Appeal] shall be seised of the whole of the proceedings as between the parties thereto, and every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court."

(The emphasis is mine.) By this rule, therefore, the High Court ceases to have jurisdiction to entertain an application as soon as the appeal is entered. Pending entry, however, the High Court is the proper forum for applications.

When then is an appeal deemed to have been entered? For an answer we go to rule 15 of L.I. 218 which states that:

"15.(1) The Registrar of the Court below shall transmit the record when ready together with—

(a) a certificate of service of the notice of appeal;

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(b) a certificate that the conditions imposed under rules 12(4) and 13 have been fulfilled;

(c) five or three copies as the case may be of the record for the use of the Judges;

(d) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith.

(2) The Registrar of the Court below shall also cause to be served on all parties mentioned in the notice of appeal a notice that the record has been forwarded to the Registrar, who shall in due course enter the appeal in the cause list mentioned in rule 3(1)."

(The emphasis is mine.) Therefore, an appeal cannot be entered unless the record of appeal is ready, has been transmitted to the Court of Appeal and notic