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ADRIAN NII ODOI ODDOYE & LETICIA NAAMI ODDOYE

(PLAINTIFFS)
vs.
ROBERT BOSCO & 2 ORS.
(DEFENDANTS)
[SUPREME COURT, ACCRA]

CIVIL APPEAL NO. J4/25/2023

DATE: 24 JANUARY 2024

COUNSEL
RALPH POKU-ADUSEI ESQ. FOR THE 2ND DEFENDANT/APPELLANT/
APPELLANT WITH HIM, ENOCH ADU AMEYAW.
JUSTIN AMENUVOR ESQ. FOR THE PLAINTIFFS /RESPONDENTS/
RESPONDENTS WITH HIM, MIRACLE ATTACHEY.
DERICK ADU-GYAMFI ESQ. FOR THE 1ST DEFENDANT/RESPONDENT.
EMMANUEL BRIGHT AKOTO ESQ. FOR THE 3RD DEFENDANT/RESPONDENT.

CORAM
SACKEY TORKORNOO (MRS.) CJ (PRESIDING)
BAFFOE-BONNIE JSC
PROF. MENSA-BONSU (MRS.) JSC
ACKAH-YENSU (MS.) JSC
GAEWU JSC

JUDGMENT

GAEWU JSC:

My Lords, on 24January 2024, this court dismissed the appeal of the

2Defendant/appellant/appellant (hereinafter referred to as “the 2Defendant”)

against the judgment of the Court of Appeal that had affirmed the judgment

of the High Court dated 27April 2018 in favour of the Plaintiffs/Respondents/

Respondents (hereinafter referred to as “the Plaintiffs”).

We reserved the reasons that informed our decision and I now proceed to set

out the full reasons.

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On 11April 2012, the Plaintiffs took out a Writ of Summons from the High

Court against the 1Defendant/respondent (hereinafter referred to as “the

1Defendant”) and prayed for the following reliefs:

“1. Damages for trespass

An order of perpetual injunction to restrain the Defendant, his agents,

privies and assigns from entering onto or in any way disturbing the

Plaintiffs and their caretakers’ possession of the land.

2. An order cancelling Land Certificate No. GA36749, Vol. 59, Folio

375, issued to the Defendant.

3. Cost including legal costs”

The writ was accompanied by a statement of claim and the two processes

were served on the 1Defendant.

By an order of the trial High Court dated 6June 2013, the 2Defendant, a

grantee of the 1Defendant was joined to the suit. By another order of joinder

made on 15July 2014, the 3Defendant was also joined to the suit. These

joinders necessitated the amendment of the writ of summons and statement

of claim by the plaintiffs to include the 2and 3Defendants to the suit.

The Defendants filed separate statements of defence and the 1Defendant

added a counterclaim for a declaration that he is the owner of “ALL THAT

PIECE OR PARCEL OF LAND situate lying and being at Oyarifa-East (Accra)

and bounded on the North by Lessor(s) land measuring 201.2, 173.3, 141.5,

192.4, 103.1 and 337.6 feet more or less on the East by Lessor(s) land

measuring 415.9 and 311.8 feet more or less, on the South by the Lessor(s)

land measuring 867.1 feet more or less, on the West by Lessor(s) land

measuring 693.1 feet more or less and containing an approximate area of

7.83 acres or 3.13 hectares more or less.

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The 3Defendant also had a counterclaim as follows:

“1. A declaration of title to “ALL THAT PIECE OR PARCEL OF LAND

situate lying and being at Oyarifa-East (Accra) and bounded on

the North by Lessor(s) land measuring 201.2, 173.3, 141.5,

192.4, 103.1 and 337.6 feet more or less on the East by Lessor(s)

land measuring 415.9 and 311.8 feet more or less, on the South

by the Lessor(s) land measuring 867.1 feet more or less, on the

West by Lessor(s) land measuring 693.1 feet more or less and

containing an approximate area of 7.83 acres or 3.13 hectares

more or less.

2. A declaration of title to ALL THAT PIECE OR PARCEL of land

situate lying and being at Oyarifa, Accra and covering an

approximate area of 5.64 acres and bounded on the Northwest

by the Agbawe Owusu We Family land measuring 420 feet more

or less, on the Northeast by Agbawe Owusu We Family land

measuring 575 feet more or less, on the Southeast by the

Agbawe Owusu We Family land measuring 420 feet more or less

and on the Southwest by the Agbawe Owusu We Family land

measuring 575 feet more or less.

3. A declaration that 1Defendant is in breach of covenant against

subletting without the consent of the vendor and consequently

forfeits the parcel of land referred to in paragraph 2 herein.

4. A declaration that the Plaintiffs’ family were licensees on the

disputed land referred to in relief 1 herein.

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5. A declaration that the purported Statutory Declaration by

Plaintiffs mother dated the 7day of September 2000 was

fraudulent.

6. A declaration that any attempt or purported attempt by

Plaintiffs or their predecessors to register title to the disputed

land, is fraudulent.

7. A declaration that any transaction between 1Defendant and

2Defendant without the consent of 3Defendant’s family is void.

8. An order directed at the Land Title Division of the Lands

Commission to cancel and expunge from its records any

registration or plotting made to the name of Plaintiffs or their

predecessor in respect of the parcel of land described in relief ‘1’

herein.

9. An order directed at the Land Title Division of the Lands

Commission to cancel and expunge from its record Land

Certificate No. GA36749, Vol. 59 Folio 375 issued to the name of

1Defendant herein.

10. Recovery of possession of the parcel of land described in

paragraphs 1 and 2 herein.

11. General damages for breach of covenant against 1Defendant.

12 An order of perpetual injunction restraining Plaintiffs and 1and

2Defendants from having any dealings with the disputed parcels

of land described herein.

13 Cost including solicitor’s fee.

The 3Defendant in his statement of defence and counterclaimed alleged

fraud against the plaintiffs and stated the particulars of the fraud as follows:
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1. Plaintiffs or their parents knew or ought to have known that

they were granted a license to engage in agricultural activities

on the disputed land.

2. Plaintiffs or their parents knew that they were not given any

documents covering the disputed land as they were merely

licensees authorised to carry out their agricultural activities such

as the raising and rearing of livestock and farm animals.

3. That even if, without admitting same to be true, Plaintiffs have

misplaced any purported documents covering the disputed land,

Plaintiffs or their parents could have approached 3Defendant’s

family for the execution of such documents.

4. Plaintiffs or their parents failed to notify 3Defendant before

taking any steps to register title to the disputed land.

5. Plaintiffs or their parents knew at all times material that they

were only granted a license to engage in agricultural activities on

the disputed land during the operation feed yourself era and

nothing more.

The case proceeded to a full trial after pleadings closed. At the end of the

trial, the High Court entered judgment in favour of the Plaintiffs on all the

reliefs claimed against the Defendants and dismissed the counterclaims of

both the 1and 3Defendants.

Being dissatisfied with the judgment of the trial High Court, the 3Defendant

on 26June 2018 filed a Notice of Appeal against the judgment to the Court of

Appeal. The 1Defendant did not appeal but 2nd Defendant applied for a stay

of execution against the judgment of High Court pending appeal. However,

the only evidence of an appeal by the 2Defendant was a document marked

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Exhibit D.Y.1 headed Notice of Appeal attached to the affidavit in support.

But that “Notice of Appeal” addressed to The Registrar, Court of Appeal, did

not bear any filing stamp marks or receipt number to indicate that it was

filed in any court registry. That notwithstanding, the records before us show

that at the settlement of records of appeal before the registrar of the High

Court on 5June, 2020 at 1.00 pm, one Ralph Poku Adusei, Esq, of Zoe, Akyea

and Co, was recorded as present as Counsel for the 2Defendant, with Naa

Adjeley Dsane from Amenuvor & Associates as lawyer for the Plaintiffs. The

3Defendant who filed a Notice of Appeal in the registry of the High Court, as

dictated by the Court of Appeal Rules, 1998 (CI. 19) was absent and was not

represented by a lawyer.

The Registrar of the High Court proceeded to settle the records. Thereafter,

the Record of Appeal was prepared and transmitted to the Court of Appeal.

The 2Defendant filed written submissions in the Court of Appeal to which the

Plaintiffs responded by also filing their written submissions. The 3Defendant

did not file any written submissions.

In the Plaintiffs’ written submission in answer to the 2Defendant’s written

submission to the Court of Appeal, the Plaintiffs’ raised by way of preliminary

point the following issues:

1. Whether or not the Court of Appeal had the jurisdiction to hear

the appeal.

2. Whether or not there was an appeal properly so called before

the Court of Appeal.

On the above preliminary points, counsel for the Plaintiffs argued that a

careful reading of the ROA and the written submissions filed by the

2Defendant showed that the 2Defendant, did not properly file Notice of
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Appeal in compliance with the provisions of CI 19. He pointed to a ruling of

the High Court dated 19June 2018 on the record, which was in respect of the

application for stay of execution by the 2Defendant, wherein the High Court

Judge found as follows:

“The 2Defendant/Appellant attached a Notice of Appeal as Exhibit D. Y.

1. Exhibit D. Y. 1 has not been filed because it has no receipt stamp of

the court on it indicating that it has been filed. Secondly, Rule 8 Order

2 (sic) specifically states that Notice of Appeal shall be filed in the court

below, which is the High Court. Exhibit D. Y.1 has been addressed to

the Registrar of the Court of Appeal. Applying the rules there is no valid

Notice of Appeal pending and as such the application for stay of

execution is dismissed”.

The plaintiffs’ lawyer therefore submitted that the written submissions filed

by the 2Defendant ought to be disregarded since he had not appealed

against the judgment of the High Court.

In the meantime, the 3Defendant who filed a Notice of Appeal properly in the

case did not file any written submissions. Strangely enough, the 3rd

Defendant was represented at the hearing of the appeal by his son but

without any written submission in his name before the Court of Appeal. At

the hearing of the appeal the parties relied on their written submissions and

the Court of Appeal adjourned to consider their judgment.

The judgment of the Court of Appeal was split 2-1 with the majority basing

their decision on the preliminary legal points raised by the Plaintiffs. His

Lordship Bright Mensah, JA, who read the majority decision posed the

following question, whether the 2Defendant complied with the statutory

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procedure in filing his Notice of Appeal. This he answered, ’certainly not’! He

then proceeded as follows:

“As observed elsewhere in this judgment, the document complained of

was only exhibited to an application for stay of execution. The

impugned Notice of Appeal never bears the filing stamp of the court or

the bank clerk’s stamp to indicate that fees was paid. In consequence,

it is reasonable to hold that the 2Defendant never followed the

standard practice to properly file his intended Notice of Appeal. The

stamp on the document was rather that of a Commissioner for Oath’s

in proof that it was attached to the motion for stay of execution and

marked as exhibits quite distinct from proper filing of a Notice of

Appeal. That certainly cannot be said to be a Notice of Appeal properly

filed. The lower court’s observation that the document purporting to be

a Notice of Appeal was not really filed in this case is a truism. It goes

without saying, therefore, that the 2Defendant never filed, properly

speaking, a Notice of Appeal to invoke the jurisdiction of this court to

deal with his case and complaints he has against the judgment of the

lower court.

Consequently, I find that 2Defendant never filed an appeal in this case

and his right of appeal is foreclosed”.

It is against this holding of the majority that the 2Defendant has appealed to

this court on the following grounds:

1. The judgment of the Court of Appeal is against the weight of

evidence.

2. The Court of Appeal misdirected itself when the court

considered the preliminary objection raised in the written

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submission of the Plaintiffs/Respondents/Respondents contrary to

Rule 16 of the Court of Appeal Rules, 1997 (CI 19).

3. That the Court of Appeal misdirected itself in law when the court

determined the appeal against the 2Defendant/Appellant/

Appellant on the sole ground of the preliminary legal objection

raised by the Plaintiffs/Respondents/Respondents written

submissions without going into the merits of the appeal.

4. The Court of Appeal misdirected itself on the facts when the

court held that there was no valid Notice of Appeal filed by the

2Defendant/Appellant/Appellant in the registry of the High Court

when there was evidence that the record had been settled by the

Registrar and all parties based on a valid Notice of Appeal that

had been filed by the 2Defendant/Appellant/Appellant.

5. The Court of Appeal misdirected itself on the facts and in law

when it held that the Plaintiffs/Respondents/Respondents were

able to prove their case on the preponderance of probabilities

and were therefore entitled to judgment in their favour when

they were unable to establish their root of title by proper

evidence.

6. The Court of Appeal misdirected itself on the facts and the law

when it held that the Plaintiffs/Respondents/Respondents were

entitled to their claim when the

Plaintiffs/Respondents/Respondents had failed to clearly establish

the identity of the land over which the claim related.

7. Additional grounds of appeal may be filed on receipt of the

Record of Appeal.
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The first ground of appeal is the omnibus ground; the 2, 3and 4grounds of

appeal are on the lawfulness or otherwise of the preliminary legal point

raised and argued in the Plaintiffs’ written submission instead of complying

with Rule 16 of CI 19; while grounds 5, 6 and 7 are on the facts, evidence

and the law relating to the facts and evidence led at the trial. Consequently,

as the 2Defendant argued grounds 2, 3 and 4 first and together, the said

grounds 2, 3 and 4 will also be discussed together since these have the

potential to throw out further discussions of the other grounds of appeal.

Consideration of the Grounds of Appeal

2. The Court of Appeal misdirected itself when the court

considered the preliminary objection raised in the written

submissions of the Plaintiffs/Respondents/Respondents contrary

to Rule 16 of the Court of Appeal Rules, 1997 (CI 19).

3. That the Court of Appeal misdirected itself in law when the court

determined the appeal against the 2Defendant/Appellant/

Appellant on the sole ground of the preliminary legal objection

raised by the Plaintiffs/Respondents/Respondents written

submissions without going into the merits of the appeal.

4. The Court of Appeal misdirected itself on the facts when the

court held that there was no valid Notice of Appeal filed by the

2Defendant/Appellant/Appellant in the registry of the High Court

when there was evidence that the record had been settled by the

Registrar and all parties based on a valid Notice of Appeal that

had been filed by the 2Defendant/Appellant/Appellant.

Counsel for the 2Defendant in arguing grounds 2, 3 and 4 above, referred us

to Rule 16 of CI 19 and submitted that it is very fundamental to note that

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counsel for Plaintiffs did not file any notice of preliminary objection in

compliance with Rule 16 of CI 19 and therefore he was in clear breach of the

said Rule 16 when he sought to argue the preliminary legal objection to the

disadvantage of the 2Defendant contrary to the Rules and Practice of the

Court of Appeal. Counsel for 2Defendant in support of his argument referred

us to a number of cases, albeit Court of Appeal cases as follows: Yaya Addy

(3Defendant/Appellant) and Nii Odartey III (2Defendant/Appellant) &

Nii Okai Quaye Djanor (1Defendant), v. Abbeyman Family Stool

(2018) unreported, CA, Civil Appeal No. H1/106/17 dated 17May

2018; Alfred Agbesi Woyome v. Attorney General Civil Appeal No.

H1/42/2017 dated 8March 2018; Nana Kodiawude v. Nana Ackakyi and

Nana Azia Eiku IV (2018) (CA) Civil Appeal No. H1/21/18 dated

28November 2018; Osei Bonsu II v. Mensah & ors. [2003-2005] 1 GLR

141; Barclays Bank Ghana Ltd v. Iva Yelipoie (2012) CA Civil Appeal

No. H1/86/2011 dated 13December 2012; Yaw Asamoah v. Opanin

Kwame Sebewie (2015) (CA) Civil Appeal No. H1/69/2014 dated

22December 2015.

Based on the above Court of Appeal cases, Counsel for the 2Defendant

invites us to hold that the Court of Appeal misdirected itself in law when it

considered the preliminary legal objection raised and argued in a written

submission of the Plaintiffs contrary to Rule 16 of the Court of Appeal Rules

1997, (CI 19).

Counsel for the Plaintiffs in his argument in response to the submission of

counsel for the 2Defendant on the preliminary points asserts that no appeal

properly so called was filed for the Court of Appeal to assume jurisdiction to

hear and decide the appeal of the 2Defendant.

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Counsel submits that at the trial court, and at the application for stay of

execution stage, the 2Defendant’s attention was drawn to the fact that there

was no Notice of Appeal filed against the High Court judgment, yet the

2Defendant took no remedial steps to correct the anomaly.

Rule 16 of Court of Appeal Rules, 1997 (CI 19) on Notice of Preliminary

Objection as amended by CI 21, provides as follows:

“1. A respondent who intends to rely on a preliminary objection to

the hearing of the appeal shall give the appellant ‘three clear

days’ notice before the hearing of the preliminary objection,

setting out the grounds of objection, and shall file the notice in

the Form 8 set out in Part One of the Schedule.

2. Where the Respondent fails to comply with subrule (1), the court

may refuse to entertain the objection or may adjourn the hearing

at the cost of the Respondent or may make any other

appropriate order”.

Our emphasis is on the phrase ‘hearing of the appeal’. That is there must be

an appeal filed and pending to be heard by the Court of Appeal.

So, what then is appeal? An appeal is a proceeding undertaken to have a

decision reconsidered by a higher authority; especially, the submission of a

lower court’s or agency’s decision to a higher court for review and possible

reversal - See Black's Law Dictionary 9Edn.

In Attorney- General v. Sillem (1864) 10H.L.C.704, it was stated that an

appeal is an application to set aside or vary the decision of another tribunal

wrongly made. There is no inherent common law right to appeal. Such right

as are available are creatures of statute.

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The superior court of judicature comprising- the Supreme Court; the Court of

Appeal; and the High Court and Regional Tribunal are creatures of the

Constitution 1992 and/or statute. See Article 126(1) of the Constitution

1992 and the Courts Act, 1993 (Act 459). The various jurisdictions to hear

and determine any cause or matter are therefore constitutionally and/or

statutorily conferred.

Per Article 137 of the Constitution 1992, the Court of Appeal shall have

jurisdiction throughout Ghana to hear and determine, subject to the

provisions of the Constitution, appeals from judgment, decree or order of the

High Court and Regional Tribunals and such other appellate jurisdiction as

may be conferred on it by the Constitution or any other law. And except as

otherwise provided in the Constitution, an appeal shall lie as of right from a

judgment, decree or order of the High Court and a Regional Tribunal to the

Court of Appeal. - See also Section 11 of the Courts Act, 1993 (Act

459) as amended by the Courts (Amendment) Act, 2002 (Act

620) which has enhanced the Court of Appeal’s jurisdiction to hear and

determine appeals from a judgment of a Circuit Court, in a civil cause or

matter.

The power to make rules and regulations for regulating the practice and

procedure of all the courts in Ghana is vested in the Rules of Court

Committee established under Article 157(1) of the Constitution. As a

result, the Court of Appeal Rules 1997 (CI 19) was enacted to regulate the

practice and procedure at the Court of Appeal and for invoking its jurisdiction

to hear appeals conferred by Constitution and any other law.

Rule 8 of CI 19 on Notice and Grounds of Appeal provides that an appeal to

the Court of Appeal shall be by way of rehearing and shall be brought by a

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Notice of Appeal in the Form 1 set out in Part 1 of the schedule and the

Notice of Appeal shall be filed in the Registry of the court below.

From the provisions of Rule 8 of CI 19 therefore, it is imperative that the

Notice of Appeal must be filed and in the Registry of the court below - High

Court, Regional Tribunal, or the Circuit Court. To give further bite and

authority to the provisions of Rule 8 of CI 19, the substantive statutory

legislation, that is, the Courts’ Act 1993 (Act 459), which grants appellate

jurisdiction to the Court of Appeal provides at Section 11(8) that:

“The Court of Appeal shall not entertain an appeal unless the appellant

has fulfilled the conditions prescribed in that behalf by the Rules of

Court”.

The question to be answered therefore is whether the 2Defendant had filed a

Notice of Appeal against the judgment of the High Court dated 27April 2018

in strict compliance with the provisions of Rule 8 of CI 19.

We have perused the entire ROA and we have not seen any Notice of Appeal

properly filed by the 2Defendant as mandated by Rule 8 of CI 19 and none

has been pointed out to us. However, as noted earlier in this judgment, there

is a purported Notice of Appeal attached to an affidavit of one Daniel Teye, a

manager of the 2Defendant company in support of a Motion on Notice for

stay of execution marked as Exhibit DY 1. The said Exhibit DY 1 has no filing

stamp, bank stamp and other relevant markings to show that indeed it was a

Notice of Appeal that had been filed at the Registry of the High Court.

Indeed, the High Court had in its ruling dismissing the Motion for Stay of

Execution determined that there was no valid Notice of Appeal filed.

Significantly, the 2Defendant has not appealed against this ruling.

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An appeal is a creature of the Constitution and/or statute and the Court of

Appeal had no inherent jurisdiction to hear an appeal from a person affected

by an adverse judgment if such a person failed to exercise her statutory right

of appealing and doing so in the manner laid down by the law.

A person or a party who seeks to invoke the appellate jurisdiction of the

court must strictly comply with the conditions set out in the enactment

conferring the right as well as the Rules of Court governing appeals. -

See Nye v. Nye [1967] GLR page 78; Kramo v. Afriyie [1973] 1 GLR 9;

Amponsah v. Minister of Defence [1960] GLR 140; Re Yendi Skin

Affairs, Yakubu II v. Abdulai [1984-86] 2 GLR 226.

In Frimpong v. Poku [1963] 2 GLR 1 (SC), it was stated that:

“A right of appeal is always conferred by statute and when the statute

conferring the right lays down the conditions precedent to the vesting

of that right in a litigant, it is essential that those conditions must be

strictly performed, otherwise the right does not become vested”.

Also, in Moore v. Tagoe (1934) 2 WACA 43 @ 43-45, Lord Atkin stated as

follows:

“It must be remembered that appeals in this country and elsewhere

exist mainly by statute and unless statutory conditions are fulfilled, no

jurisdiction is given to any court of justice to entertain them”.

The Supreme Court has also stated in the case of Sandem-Nab v.

Asangalisa [1996-97] SCGLR 302 as follows:

“…It must be appreciated that an appeal is a creature of statute …

where a right of appeal is conferred as of right or with leave, the right

is to be exercised within the four corners of the statute and the

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relevant procedural regulations and rules as the courts will not have

jurisdiction to grant deviations outside the parameters of the statute”.

From the foregoing authorities the failure of the 2Defendant to cause to be

filed for it a Notice of Appeal in the Registry of the High Court against the

High Court’s judgment dated 27day of April 2018 but chose to attach and

exhibit a Notice of Appeal to an affidavit of Daniel Teye in support of a

motion on notice for stay of execution of the judgment is fatal to his appeal

as there was no Notice of Appeal filed in strict compliance with Rule 8 of CI

19 which would have invoked the Court of Appeal’s jurisdiction to hear and

determine the appeal purported to have been filed by it. Thus, as the failure

by 2Defendant to comply the mandatory provisions of Rule 8 of CI 19 is fatal

to his appeal. Filing of a Notice of Appeal and in the Registry of the High

Court is a statutory condition which must be complied with before the Court

of Appeal may have jurisdiction to hear and determine any appeal, failure to

comply with Notice of Appeal will leave the court with no discretion to make

any determination in the matter.

We therefore agree with the majority decision of the Court of Appeal that the

2Defendant never appealed in the case and its right of appeal was therefore

foreclosed.

An appellant may object to the non-compliance of a respondent’s failure to

comply with Rule 16 of CI 19 on Notice of Preliminary Objection if there was a

regularly filed Notice of Appeal properly capable of invoking the jurisdiction

of the Court of Appeal, not when there is no Notice of Appeal filed and the

effect of the objection is to challenge the jurisdiction of the Court of Appeal

in the case. Therefore, the numerous Court of Appeal decisions cited by the

2Defendant are not applicable on the facts in this case.

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The 2Defendant submits in the alternative, that assuming the Court of

Appeal did not err in holding that there was no valid appeal by the

2Defendant before the Court of Appeal, the Court of Appeal ought to have

relied on the validly filed Notice of Appeal by the 3Defendant and

determined the case on the merits on the basis of the written submissions

filed by the 2Defendant.

However, as we have already noted supra, the 3Defendant after filing his

Notice of Appeal on 26June 2018, did not take any step to get that appeal

prosecuted. He did not attend the settlement of the records before the

Registrar of High Court as required by Rule 11 of CI 19 and he did not fulfil

the conditions imposed by the Registrar at the settlement of records. He also

did not file written submissions in accordance with Rule 20 of CI 19.

In the circumstances, even though the 3Defendant sent representatives to

the Court of Appeal when the case came on, they were to witness what was

going on but not to participate in the proceedings. Clearly, the true legal

position is that the Notice of Appeal filed by the 3Defendant did not ripe to

invoke the jurisdiction of the Court of Appeal for the court to hear and

determine 3Defendant’s appeal.

The 3Defendant apparently abandoned his appeal and as there is no

statutory or procedural provision referred to us that allows a non-party’s

written submission to be substituted and/or accepted in place of an

appellant’s failure to file a written submission, the Court of Appeal may not

proceed to hear the appeal. In the Supreme Court case of Agbeyevu v.

Ocansey [2009] SCGLR 703 @ 708, it was held that:

“Even though the 1992 Constitution and the Courts Act 1993 (Act 459),

confer statutory rights on the appellant to appeal as of right, the

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statutory right to appeal is regulated by the Rules of Court out of which

the conditions were imposed on him to fulfil. If on the facts an

appellant has failed to comply with the rules regulating the appeal,

irrespective of the statutory right conferred on the appellant by the

1992 Constitution and the Courts Act 1993 and notwithstanding the

merits of the appeal, an appellate court will not proceed to hear the

appeal”.

In conclusion, the Court of Appeal did not err when they considered the two

preliminary points raised and argued by lawyers for the Plaintiffs in the

written submission and determined the appeal. Furthermore, the Court of

Appeal came to the correct conclusion on the legal points raised so we find

no justifiable ground to disturb their decision.

Notwithstanding the fact that this appeal succeeds on the preliminary legal

point raised, we have noted that the Court of Appeal went to great length

and discussed the merits of the case itself and determined that the plaintiffs

succeeded in proving their case on the preponderance of probabilities and

were therefore entitled to judgment thereby affirming the judgment of the

trial court as sound in law and supportable by the evidence.

We have perused the record of appeal, the facts, the pieces of evidence led

at the trial and the applicable laws, and we uphold the majority decision of

the Court of Appeal that the 2Defendant’s case is unmeritorious and ought to

be dismissed.

Accordingly, the appeal against the judgment of the Court of Appeal dated

10March 2022 is hereby dismissed.

E. Y. GAEWU
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(JUSTICE OF THE SUPREME COURT)

G. SACKEY TORKORNOO (MRS.)

(CHIEF JUSTICE)

P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

PROF. H. J. A. N. MENSA-BONSU (MRS.)

(JUSTICE OF THE SUPREME COURT)

B. F. ACKAH-YENSU(MS.)

(JUSTICE OF THE SUPREME COURT)