THE REPUBLIC v. KUMASI TRADITIONAL COUNCIL & ORS EX PARTE: EBUSUAPANIN

RULING

PWAMANG, JSC.

The facts giving rise to this interlocutory appeal are not in dispute. On 18th May 2015 the High Court, Kumasi dismissed an application for Judicial Review file by applicant/appellant/respondent/respondent, hereafter to be referred to as “applicant”. Being dissatisfied, he filed an appeal to the Court of Appeal. On 5th October, 2015 applicant was served with Form 6 that is the notice of transmission of the record of appeal to the Court of Appeal. Applicant failed to file his

written submissions within 21 days as required by the rules. Nonetheless, on 18th November, 2015 the Court of Appeal heard an application filed by applicant for leave to amend his Notice of Appeal. The interested party/respondent/applicant/appellant, hereafter to be referred to as “respondent”, did not oppose the application so the Court of Appeal granted it and gave applicant up to 26th November, 2015 to file the pursuant Amended Notice of Appeal. Thereafter applicant filed his written submission on 15th December, 2015.

When the respondent was served with the written submission he objected to it and filed a motion in the Court of Appeal praying for it to be struck out on the ground that it was filed after 21 days of the service of Form 6 on applicant. That application was heard and dismissed by the Court of Appeal on 27th January, 2016. The court of appeal in its ruling agreed with respondent that the written submission was filed out of time but decided that it would nevertheless exercise its discretion to waive the non-compliance and admit the written submission. It is against that ruling of the Court of Appeal dated 27th January, 2016 that this interlocutory appeal has been brought to this court.

It is trite learning that an appeal is by way of rehearing, which means an appellate court is required to peruse the whole record of appeal and form its own opinion as to whether the findings and conclusions of the court below were justified having regard to the evidence and the applicable law.

At page 12 of his statement of case filed in this court, the respondent stated as follows;

“Even though the court of appeal exercised its discretion, the discretion, with the utmost respect was wrongly exercised. The exercise was not in accordance with law. In exercising its discretion in favour of the applicant, the court of appeal ought to have had consideration for rule 20 (1) and (2) of C.I.19. The decision of the Court of Appeal to rather reward a party who has flagra