Kakpo VRS. Foshem co.. ltd. (CA. 80/2002) [2005] GHACA 6 (21 January 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - GHANA
CIVIL APPEAL
NO. CA. 80/2002
CORAM - OWUSU, JA [PRESIDING]
21ST JANUARY, 2005.
PIESARE, JA
APALOO, JA
MERCY KAKPO … DEFENDANT/APPELLANT
VRS.
FOSHEM CO. LTD. … PLAINTIFF/RESPONDENT
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R U L I N G
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APALOO, JA - When this appeal came up for hearing on 17/11/04, Mr. A.A.Somuah Asamoah Solicitor for the Plaintiff/Respondent who had earlier filed a notice of appointment of Solicitor in this Court and additionally in accordance with Rule 16(1) of C.I. 19 had filed a notice of preliminary objection to hearing of the appeal was heard in respect of his objection. Mr. Hayibor of Hayibor Djarbeng & Co. for the Defendant/Appellant waived his right to the statutory notice of three days and reacted orally to the objection.
In the view of Mr. Asamoah the appeal is not properly before this Court and therefore the same is incompetent. Mr. Asamoah noted that by the Record, the accredited and recognized Solicitor for the Defendant/Appellant in the Court below was Mr. Cletus Amoah of Simran Chambers Accra. That the said Mr. Amoah entered appearance, participated in the trial at the Court below and was present when the ruling containing the judgment was delivered by the High Court on15th November 2001.
A notice of Appeal was subsequently filed on behalf of the Defendant/Appellant about one week after the judgment by Messrs Hayibor, Djarbeng & Co. who were strangers in the action and unknown to the Plaintiff/Respondent. According to Counsel the Record does not show that Messrs Hayibor, Djarbeng & Co. filed a notice of change of Solicitor and indeed Mr. Cletus Amoah who remained the Solicitor on record, later on 27th November 2001, filed another notice of appeal. To Mr. Asamoah the failure on the part of Messrs Hayibor Djarbeng and Co. to file a notice of change of Solicitors rendered the appeal incompetent.
Mr. Hayibor was of the opinion that the objection is frivolous and should not be entertained. For the sole purpose of an appeal he is of the view that there is nothing to stop a party against whom a judgment has been given from engaging a new Solicitor to prosecute an appeal. Appeal, he said is a creature of statute, in this case the Court of Appeal Rules C.I. 19; and that C.I. 19 should determine whether or not an appeal has been properly lodged before the Court of Appeal. In so far as an Appeal is concerned the High Court Rules are inapplicable according to him.
It is trite learning that each Court has its own rules which govern practice and procedure. There is no doubt that the Courts are creatures of statues and may have similar rules for practice and procedure but it is important to appreciate that each Court is governed solely by the statute that set it up as well as its rules of practice and procedure.
In the High Court, a party has a right to change his Solicitor at any time in any cause or matter without an order for that purpose but unless and until notice of any change of Solicitor is filed and copies of the notice are lodged and served, the former Solicitor shall be considered the Solicitor of the party till the final conclusion of the cause or matter. See Order 7 Rule 2(1) of the High Court Rules.
From the foregoing rule, it is obvious that unless and until there is a change of Solicitor, the Solicitor on record is considered as the Solicitor for the party till the final conclusion of the cause or matter in the High Court. In my view where the cause or matter is concluded at the High Court, a party aggrieved by the High Court decision may proceed to the Court of Appeal by himself or by the same Solicitor or by a new Solicitor altogether since the obligations of the Solicitor on record is determined at the conclusion of the case in the High Court.
Having taken the decision to go on appeal the Appellant will then submit himself to the Court of Appeal Rules i.e. C.I. 19. By Rule 3 of C.I. 19 “A person who is a party to any cause or matter before the Court (Appeal) may appear in person or may be represented by Counsel of his choice.”
This Rule in particular envisages a situation where an Appellant decides to appear in person or by Counsel of his choice. The Rule does not clog or fetter the freedom of any party from engaging any Solicitor of his choice or from appearing in person for the appeal.
Again by Rule 9(3) an appeal is lodged when the notice of appeal has been filed in the Registry of the Court below. Indeed reading both Rules 3 and 9(3) together, it becomes clear that the Appellant himself or a Solicitor of his choice may file a notice of appeal in the Registry of the Court below. This fresh step does not require any notice of change of Solicitor.
We believe that a party’s freedom to engage Counsel of his choice to prosecute an appeal for him or to mount an appeal by himself will be dwindled or diminished if the objection is sustained. The preliminary objection is not tenable and the same is over ruled.
R.K. APALOO
JUSTICE OF APPEAL
I agree. R.C. OWUSU
JUSTICE OF APPEAL
I also agree. E.K. PIESARE
JUSTICE OF APPEAL
COUNSEL - A.A. SOMUA ASAMOAH FOR RESPONDENT.
CHARLES HAYIBOR FOR APPELLANT.
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