Inspector-general of Police & Anor V. Awuru Gloria & Anor (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

The Appellants/Applicants brought an Application under the Rules of this Honourable Court seeking the following reliefs:

“(a) An order of Court re-listing the appeal which was struck out on the 21st November 2007for want of diligent prosecution.

(b) And for further order(s) as the Honourable Court may deem fit to make in the circumstances. ”

The fact of this case is that the lower Court on the 13th day of July, 2007 transmitted the Record of Appeal containing two Notices of Appeal to this Court.

About a period of more than 3 months after transmission, the Appellants/Applicants had not filed their Appellants’ Brief of Argument, the 1st Respondent applied to this Honourable Court praying for the striking out or dismissal of the appeal on the grounds that the Appeal did not arise from any decision of the lower Court, that the Record of Appeal contained two Appeals from different proceedings and that the Appellants have not filed Brief of Argument within the time stipulated by the Rules of this Court. Consequent upon the Application, the Appeal was struck out on the 21st day of November, 2007. Appellants/Applicants’ Counsel alleges that before he could study and appreciate the Record and prepare his Brief of Argument, he lost his Uncle and had to travel home to make arrangements for the burial and that on his return, he had serious eye problem and was by then out of time. Appellants/Applicants instructed their Counsel to seek leave of this Honourable Court to re-list the Appeal and also to file Brief of Argument out of time.

Six issues are distilled on behalf of the Appellants! Applicants for the determination of this Application and they are as follows:

“1. Whether there are sufficient materials before the Court to enable it consider this application in favour of the Appellants/Applicants.

2. Whether the failure to file Brief of Argument within the time prescribed by the Rules is attributed to the Appellants/Applicants or to their Counsel based on the facts before the Court in this case.
3. Does the ground of Appeal in this case show good cause why the Appeal should be heard?
4. Can this Honourable Court grant this Application?
5. Whether the Motion on Notice dated 24/10/2007 for the striking out/dismissal of the Appeal which was filed under the repealed Court of Appeal Rules 2002 was competent.
6. Whether the transmission of the Notice of Appeal in respect of the Garnishee Proceeding along with the Record of Proceeding occasion a miscarriage of Justice.”

On behalf of the 1st Respondent, the following two issues are distilled for the determination of this Application as follows:

“1. Whether this Court has the Jurisdiction to grant the Application to re-list the Appeal.

2. Whether if the Court has the powers to grant the Application, (not conceded) whether the Appellants/Applicants have adduced valid and good reasons to merit the discretion sought to be exercised in their favour. ”

I have carefully perused the Motion on Notice brought by the Appellants/Applicants, the Affidavit in Support of the Motion, the Counter Affidavit, the Further Affidavit, the Further Counter Affidavit, as well as the written addresses of Counsel and have come to the conclusion that the following issues are capable of determining this application. They are as follows:

“1. Whether this Honourable Court has the jurisdiction to grant this Application.

2. Whether there are sufficient materials before the Court to enable it consider this Application in favour of the Appellants/Applicants. ”

Issue 1

“Whether this Honourable Court has the jurisdiction to grant this Application.”