REPUBLIC v. HIGH COURT, KUMASI; EX PARTE KHOURY

JUDGMENT OF ADADE J.S.C.

This application is as interesting as it is peculiar. In substance the plaintiff-applicant is asking this court, in an application for certiorari, to bring up and quash a notice of appeal filed by the defendant-respondent. The said appeal is to the Court of Appeal, from a ruling of the High Court. The notice of appeal (good or bad) is now pending in the Court of Appeal, and the applicant says that we should order this notice to be brought up and quashed. In his own words, the applicant wants:

“ . . . an order declaring and setting aside as null and void the purported notice of appeal to the Court of Appeal filed by A. O. Lawson [the defendant] on 12 September 1990 in the registry of the High Court, Kumasi in the case entitled Khoury v. Lawson (Misc 96/90).”

I find this a very peculiar application.

Giving the grounds for his application, the plaintiff says that the ruling sought to be appealed against was given on 28 August 1990; that it being interlocutory, the defendant had fourteen days to file his appeal; but the defendant filed the notice of appeal one day late, i.e. 12 September 1990; the appeal was therefore incompetent. Accordingly, he comes by certiorari to ask us to bring up the notice and quash it.

Granting, for purposes of argument, that the notice was out of time, one may well ask: "Is certiorari the remedy open to the plaintiffs?" I should have thought that the remedy lies in some proceeding in the Court of Appeal itself, either prior to or at the hearing of the appeal; not in an application for certiorari, in this court. We must be careful lest we expose this remedy of certiorari to unnecessary abuse. Next time round I can very well see a party to an appeal asking this court, on certiorari, to bring up and quash an appeal which is pending in the Court of Appeal on the ground that it has no basis in law, instead of arguing his objections in the Court of Appeal for a ruling. We may soon find ourselves taking over and hearing appeals pending in the Court of Appeal and properly cognisable by that court. So that even if the notice of appeal [p.396] in the instant case was filed out of time, I would still be loathe to entertain the application. I would dismiss it.

However, during argument and having seen a transcript of the proceedings of the High Court, counsel for the applicant conceded that although the ruling is dated 28 August 1990, it was in fact read in open court on 29 August 1990. Therefore the notice of