Arguing New Grounds of Appeal – To Seek Leave Or Not

INTRODUCTION

When a Party is dissatisfied with a decision of a court, be it a ruling or judgement, that Party may appeal against that decision to a court with competent appellate jurisdiction. The Party who lodges the appeal is called the Appellant, and the Party who responds is the Respondent.  Per the rules of court, the basis of an appeal must be set out in the grounds of appeal; which is a component of the Notice of Appeal.

In this article, the Author explores the subject of whether or not leave is required before altering the grounds contained in the notice of appeal. The Author also discusses what consequences an Appellant faces if they do not seek leave before arguing grounds not contained in the Notice of Appeal.

APPEALS ARE NOT AS OF RIGHT BUT CREATURES OF STATUTE

Appeals from the District Court go to the High Court. If the appeal is from the Circuit Court or High Court, it goes to the Court of Appeal. Where the appeal is from the Court of Appeal it goes to the Supreme Court.  Every court with appellate jurisdiction has its set of rules to govern how appeals may be lodged in their courts. Appeals from the District Court to the High Court are governed by the provisions of Order 51 of High Court (Civil Procedure) Rules, 2004, CI 47 (as amended). Appeals from the Circuit and High Courts to the Court of Appeal are governed by the Court of Appeal Rules, 1997, CI 19 (as amended). Appeals from the Court of Appeal to the Supreme Court are governed by Supreme Court Rules, 1996, CI 16 (as amended).

Appeals are thus creatures of statute as a dissatisfied party does not have an automatic right of appeal. His Lordship, Akufo-Addo JSC (as he was then) held in Frimpong v. Poku[1] at page 6 that,

“A right of appeal is always conferred by statute and when the statute conferring the right lays down 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….”

In like manner, Ollenu JSC (as he then was) also held in Kumah v Kyeraah & Ors[2] on page 240 that,

“There is no inherent right in a party dissatisfied with a decision of a court to appeal against that decision, appeal lies only by statute. A right of appeal so given by statute can only be exercised in accordance with the provisions of the statute creating the right. If the right is not exercised within the statutory period, it determines and it is irrecoverable.”

MEANS OF COMMENCING APPEALS

An appeal is lodged by filing a Notice of Appeal at the registry of the court whose decision is being appealed against.[3]In Dora Boateng v Mckeown Investment Ltd[4], it was held thus,

“The import of rule 9 of CI 16 is that the jurisdiction of the Court of Appeal is invoked when a “Notice of Appeal” is filed in the registry of the court (below). “(emphasis mine).

The rules of the Appellate Court govern the contents of the Notice of Appeal. For the purpose of this article, we use the content as provided by the Court of Appeal Rules, C.I 19, particularly Rule 8 which stipulates,

(1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as “the notice of appeal”.

(2) The notice of appeal shall be filed in the Registry of the court below and shall-

(a) set out the grounds of appeal;

(b) state whether the whole or part only of the decision of the court below is complained of and in the latter case specify the part;

(c) state the nature of the relief sought; and

(d) state the names and addresses for service within the jurisdiction of all parties directly affected by the appeal.

The rules of an appellate court require that the grounds of appeal must be set out in the notice of appeal. The grounds of appeal refer to the statement or the exact dictum of the Judge which the Appellant is dissatisfied with; it cannot not be vague or argumentative. As much as practicable and possible, the grounds of appeal must be succinct and precise. Rule 8 (5) of C.I 19 thus provides,

“The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

Rule 8 (6) of CI 19 also provides,

“No ground which is vague or general in terms or which: discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”

In Multichoice Ghana Ltd. v Internal Revenue Service[5], the Supreme Court per Wood C.J (as she then was) reiterated the position of the law at page 789 as follows:

“Under the Supreme Court Rules, 1996 (C.I. 16), Rule (4), grounds of appeal are expected to be set out concisely and without argument or narrative.  More importantly, by Rule 6(5) aside from the well-known oft-used general ground of appeal – the judgment is against the weight of evidence – a ground of appeal which is vague or general is not permitted”.

In Nunoofio v Farmers Services Co Ltd[6], it was held at page 930 that

“…the plaintiff has appealed to this court against it on the ground that: ‘The Court of Appeal was wrong in holding that the termination of the Plaintiff’s contract was not wrongful’. This ground could have been struck out for vagueness or generality…”

 

The filing of the Notice of Appeal begins the Appeal process. The Notice of Appeal has the same status as any other means of commencing actions such as a Writ of Summons, Petition or Originating Motion on Notice. In Kwadwo Fosu v Nana Osei Akoto VI[7], the Supreme Court in describing the Notice of Appeal held,

“It is trite law that a Notice of Appeal is an originating process and like any such process, the Rules of Court prescribe the time frame for filing same. Therefore, an Appellant may file a Notice of Appeal setting out all the grounds of appeal within the legislatively prescribed time frame to properly invoke our appellate jurisdiction.”

The Supreme Court in a similar fashion, held in Amos Wedzi v Hotel Majorie[8], thus,

Grounds of Appeal are like pleadings at the beginning of a trial.  They form the basis of any trial and elaborate provisions exist in the rules of court as to how pleadings are supposed to be done. The rules of procedure and evidence show how pleadings are supposed to be formulated and what can go or should not go into pleading; when to amend pleadings with or without leave are all taken care of by the rules.”

Once a Notice of Appeal, containing the grounds of appeal, is filed, what option is open to an Appellant who intends to alter the grounds of appeal to enable him argue grounds not contained in the notice of appeal?

 

ARGUING GROUNDS NOT CONTAINED IN THE NOTICE OF APPEAL

In most situations, copies of judgments or rulings are not made readily available to the Parties after they are delivered by the Court. In some instances, copies of rulings or judgments become available months after they are delivered by the court. However, the Appellant is not at liberty to wait on the receipt of a copy of the judgment or ruling before filing the notice of appeal because appeals are time bound. Generally, interlocutory appeals must filed within 21 days from the date of delivering of the ruling; whereas final appeals must be filed within 3 months from the date of delivery of the judgment.[9] In interpleader actions, appeals must be filed within 14 days from the date of the delivery of the judgment.[10] As a matter of practicality, an Appellant cannot wait to get a copy of the ruling/judgment before filing a Notice of Appeal, for if the Appellant does not get a copy of the judgment/ruling within the time for filing the appeal, that Appellant will be out of time to appeal, and the non-availability of the copy of the judgment or record would not be an excuse.  It is due to this occurrence, that most lawyers who prepare notice of appeal include the sentence “additional grounds to be filed upon receipt of the judgment or ruling” to enable them file additional grounds of appeal when they finally receive a copy of the ruling or judgment.

If after filing the Notice of Appeal, the Appellant is furnished with a copy of the judgment/ruling, can the Appellant file the Additional Grounds of Appeal or amend the Grounds of Appeal, as of right; i.e., without leave of the court?

IS LEAVE REQUIRED TO ARGUE NEW GROUNDS OF APPEAL-EITHER BY MEANS OF ADDITIONAL GROUNDS OR AMENDMENT?

This question has been answered by numerous decisions of the Court, a few of which is discussed in this article. Before we delve into case law on the subject, we would first discuss the applicable rules of court.

Rule 8 (7) of C.I 19 provides,

“The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just.”

Similarly Rule 6 (6) and (7) of C.I 16 also provide

“(6) The appellant shall not, without the leave of the Court, argue or be heard in support of any ground of appeal that is not mentioned in the notice of appeal.

(7) Notwithstanding sub rules (1) to (6) of this rule the Court—

(a) May grant an appellant leave to amend the ground of appeal upon such terms as the Court may think fit; and

(b) Shall not, in deciding the appeal, confine itself to the grounds set forth by the appellant or be precluded from resting its decision on a ground not set forth by the appellant.”

In the case of Volta Aluminium Co.Ltd v Akuffo & Ors[11], His Lordship Date-Bah JSC (as he then was) on page 511 of the report said,

“Additional grounds of appeal were filed by the defendant company, but leave was not sought by their counsel from this court for them to be argued. Accordingly, strictly speaking, according to Rule 6(6) of the Supreme Court Rules 1996 CI 16, the arguments of the defendant based on the additional grounds should be ignored.

Likewise, in Kwadwo Fosu v Nana Osei Akoto VI[12], it was also held that,

“Any process that seeks to amend any part of the Notice of Appeal, either an addition or deletion of grounds of appeal or even to correct clerical errors must be done exclusively with leave of the court. The filing of additional grounds of appeal, may be permitted under Rule 6(7) of C.I. 16. The said rule permits the amendment of grounds of appeal upon such terms as the court may deem fit.”

The rules of court also provide that the grant of leave to file additional grounds of appeal are at the discretion of the court. Thus, an appellant cannot file additional grounds of appeal as of right as doing so denies the court the opportunity to exercise the discretion granted it by the rules.

This position was affirmed by the Supreme Court in the matter of Dora Boateng v Mckeown Investment Ltd[13] where it was held thus,

“After a valid Notice of Appeal is filed, any addition to the Notice in the form of additional grounds or amendments must comply strictly with rule 8 (7). The rule however vests the Court with power to determine an appeal outside the grounds stated in the Notice of Appeal but this is a discretion granted to the Court and not to the Parties. An Appellate Court, therefore should not without leave of the Court permit any party to amend the grounds or argue grounds of appeal not stated in the Notice of Appeal…No leave of the Court was sought to amend the Notice of Appeal or argue additional grounds of appeal in compliance with the rules. The second Notice of Appeal filed by the Defendant is, therefore alien to the rules and should have been struck out the Court of Appeal”

See also Republic v Judicial Committee of the Central Regional House of Chiefs; Ex Parte Aaba[14], where the Supreme Court in interpreting Rule 6(8) of C.I 16 which has similar provisions, held,

“…I understand rule 6(8) of CI 16 to mean no more than that the decision to rely on a ground not set forth by the appellant rests solely with the court when in any particular appeal before it, the justice of the case requires the court to rest its decision on a ground not relied on by the appellant in his notice of appeal…”

WHAT HAPPENS WHEN NEW GROUNDS OF APPEAL ARE ARGUED WITHOUT LEAVE?

When new grounds of appeal not contained in the notice of appeal are argued without leave of the court, that will be in infraction of the rules of the appellate court which is entertaining the appeal. Any infraction of the rules of court may be waived by the Court or the Respondent or may be declared as rendering the new grounds of appeal argued as an irregularity or same set aside. We will proceed to discuss this in details below.

 Waiver of Non-Compliance with the Rules

Appellate Courts have the jurisdiction to waive non-compliance with the rules of court. Rule 79 of C.I 16 provides as follows,

“Where a party to any proceedings before the Court fails to comply with any provision of these Rules or with the …… of any order or, direction given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings unless tile Court considers that the non-compliance should be waived.”

Rule 63 of C.I 19 also provides,

“When a party to any proceedings before the Court fails to comply with these rules or with the terms of any order or directions given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to the further prosecution of proceedings unless the Court considers that the non-compliance should be waived.”

The Appellate Courts have exercised the above discretion under the aforementioned rules to waive non-compliance with their rules, even non-compliance in respect of arguing grounds of appeal not mentioned in the Notice of Appeal.

In the case of West Laurel Co. Ltd v Agricultural Development Bank[15], the Supreme Court found that grounds (2) and (4) of the Appeal therein was argumentative and narrative and therefore not compliant with Rule 6(5) of C.I 16. Although the Court struck out ground (2), it waived non- compliance with the Rules in respect of ground (4). This however does not grant an appellant free rein to disregard the rules of court. As His Lordship, Marful-Sau JSC succinctly put it in the case of Justice Gilbert Mensah Quaye v Koiwah Investment Co. Ltd., Gershon Adjin, Dr. Adu Gyamfi AandInternational Central Gospel Church[16] thus:

“…We would like to sound a caution that by amending the offending ground instead of striking it out, this Court is not encouraging non-compliance of its rules. This Court shall in all appropriate cases insist on the strict adherence of the rules that regulate its proceedings….”

Additionally, before an Appellate Court would waive non-compliance with the subject rules on arguing grounds of appeal not contained in the notice of appeal, the Respondent must have been given an opportunity to respond to the additional grounds.

Is the Appellate Court Bound by Grounds Set Out in a Notice of Appeal?

Rule 6 (8) of C.I 16 stipulates,

“Where the Court intends to rest a decision on a ground not set forth by the appellant in his notice of appeal or on any matter not argued before it, the Court shall afford the parties reasonable opportunity to be heard on the ground or matter without re-opening the whole appeal”

In the Supreme Court case of Attorney – General v Faroe Atlantic Co. Ltd[17], the Court after striking out offending parts of two of the grounds of appeal therein, amended same.

The Appellate Court’s discretion to waive non-compliance with seeking leave to argue grounds not contained in the notice of appeal is grounded in the provisions of the rules which state that the Appellate Court is not bound by the grounds of appeal contained in the notice of appeal.

Rule 8 (8) of C.I 19 and Rule 6(7)(b) of C.I 16 provide,

“Rule 8 (8) of C.I 19

8 (8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.

Rule 6(7)(b) of C.1 16

6 (7) Notwithstanding sub rules (1) to (6) of this rule the Court—

(b) Shall not, in deciding the appeal, confine itself to the grounds set forth by the appellant or be precluded from resting its decision on a ground not set forth by the appellant.”

In addition, Rule 6 (8) of CI 16 stipulates that,

 “Where the Court intends to rest a decision on aground not set by the appellant in his notice of appeal or on any matter not argued before it, the Court shall afford the parties reasonable opportunity to be heard on the ground or matter without re-opening the whole appeal.”

On a reading of the rules set out above, it is the Author’s opinion that the fact that new grounds not contained in the Notice of Appeal have been argued in the Written Submissions/Statement of Case, does not render the said grounds a nullity. The Appellant Court may admit the additional grounds if the Respondent does not object to same and proceeds to respond to these grounds. In any event, the Appellate Court has the jurisdiction to suo motu invite the Parties to the appeal to address the Court on grounds not contained in the Notice of Appeal.

Supporting the above opinion is the case of Volta Aluminium Co. Ltd v Akuffo & Ors[18], wherein it was held,

On the other hand, by the rule 6(7) of C.I 16, notwithstanding the requirement for an appellant to set forth the grounds of appeal, the court is not obliged, in deciding the appeal to confine itself to the grounds set forth by the appellant nor is it precluded from resting its decision on a ground not set forth by the appellant. Accordingly in the interest of justice, I would take account of such of the additional grounds of appeal as I find helpful in the hearing of this case, by way of appeal. There will be no injustice in resting any decision I take on any of the additional grounds since the plaintiffs were given notice of them (and the arguments in support of them) and in fact, addressed them in their statement of case”.

Similarly, in the case of Edem Affram v Bernard Yaw Owusu[19], it was held,

“Considering some of the pertinent issues raised in this appeal and in order to do substantial justice to the parties to the appeal, especially the Appellants, I shall, nonetheless consider the grounds, by merging those which can be evaluated and determined compositely under the omnibus ground of appeal.”

 

CONCLUSION

An Appellant is ordinarily is not allowed to alter the grounds of appeal contained in the Notice of Appeal; either by filing an amended Notice of Appeal or filing additional grounds of appeal. In all instances, leave of the court must be sought. Where however, leave is not sought, the appellate court may exercise its discretion to waive the non-compliance and admit the additional or amended grounds of appeal under the following circumstances:

1. If the Respondent proceeded to respond to these additional/amended grounds of appeal in its written submission without raising the objection to same.
2. If it will be in the interest of justice for the additional/amended grounds to be admitted and heard by the appellate court to finally determine the appeal.

[1] [1963] 2GLR 1

[2] [1965] GLR 235

[3] Rule 9 (3) of CI 19

[4] (Civil Appeal No: J4/12A/2019)

[5] [2011] 2 SCGLR 783

[6] [2007-2008] SCGLR 926

[7] (Civil Appeal J4/26/2020)

[8] (Civil Appeal No. J4/45/2013)

[9] Rule 9 (1) of CI 19

[10] Order 44 rule 13 (5) of CI 47

[11] [2003-2005] 1 GLR 502

[12] (Civil Appeal J4/26/2020)

[13] (Civil Appeal No: J4/12A/2019)

[14] [2001-2002] SCGLR 545

[15] {2007-2008} 1 SCGLR 556

[16] (Civil Appeal No. J4/42/2018)

[17] [2005-2006] SCGLR 271

[18] [2003-2005] 1 GLR 502 at 511

[19] (Civil Appeal No: J4/47/2021)