RITA ABBAN v. JOSEPH ABBAN & 2 ORS
2018
COURT OF APPEAL
GHANA
CORAM
- KUSI-APPIAH J.A
- HONYENUGA J.A
- ADJEI J.A
Areas of Law
- Civil Procedure
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Plaintiff initially sought to appoint a receiver/manager for a disputed property, but the High Court dismissed this application. A review application under Order 42 of the High Court (Civil Procedure) Rules, C.I. 47, was also dismissed. Subsequently, the Plaintiff filed an interlocutory appeal against the ruling of the review. The appeal was based on two grounds: the ruling being against the weight of affidavit evidence and the judge's wrongful exercise of discretion. The appellate court referred to the legal principles surrounding the timelines for filing appeals and the mutually exclusive nature of review and appeal. The appeal was ultimately dismissed, affirming that the High Court had acted appropriately in its decisions.
JUDGMENT
ADJEI, J.A.
On 31st May, 2017, the High Court Accra dismissed an application filed by the Plaintiff/Applicant/Appellant herein to appoint Receiver/Manager to manage the investment, rent and other accruals to the subject matter of the dispute pending the final determination of the matter before that court. The Plaintiff/Appellant dissatisfied with the ruling applied for review under Order 42 of the High Court (Civil Procedure) Rules, C.I. 47. The trial High Court Judge heard the application for review and dismissed same on 31st July, 2017. The Plaintiff aggrieved and dissatisfied with the ruling filed an interlocutory appeal against same on 18th August, 2018.
The Appeal contains two main grounds of appeal and they are as follows”
“i. The ruling is against the weight of affidavit service
ii. The learned Judge erred in law by wrongly exercising his discretion in favour of the defendants/respondents/respondents”.
The Plaintiff did not appeal against the ruling which refused to grant the application to appoint Receiver/Manager of the disputed property. The ruling was delivered on 31st May, 2017 and any appeal against it should have been filed within 21 days from thence. The time within which to file an appeal against a ruling or judgment of the High Court to the Court of Appeal is regulated by Rule 9 sub rule (1) of the Court of Appeal, Rules 1997 (C.I. 19). The relevant provisions provide thus:
“1. Subject to any other enactment governing appeals, an appeal shall not be brought after the expiration of
a. Twenty-one days in the case of an appeal against an interlocutory decision; or
b. Three months in the case of an appeal against a final decision unless the court below or the extends the time.
2. The prescribed period within which an appeal may be brought shall be calculated from the date of the decision appealed against.
3. A appeal is brought when the notice of appeal is filed in the registry of the Court below”.
From the above provision, an interlocutory appeal shall be filed within twenty-one days from the date of the decision appealed against and failure to file it within the prescribed time bars the aggrieved person forever from appealing against it during the pendency of the matter before that Court. The Courts are not seised with jurisdiction to enlarge time within which to file an appeal in interlocutory decisions.
The Review jurisdiction of the High Court under 42 of the High Court (Civil Procedure) Rules, C.I. 47 makes an app