Rule 24, Vivat Davies V Achie Benson Davies ORS (18 of 2004) 2004 SLCA 12 (6 July 2004)

(2) of the Court of Appeal Rules. Mr. Jenkins-Johnston of Counsel for the Appellant contends that Rule 24(2) of the Court of Appeal Rules gives power to this Court to order re-entry of the dismissed notice of appeal for re-hearing. That rule provides: "24(2) Where an appeal has been struck out owing to the non-appearance of the appellant the Court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing". There is no ambiguity in the wording of that rule which applies to a situation where an appeal has been struck out for non-appearance of the appellant. See Brooksbank v Rawsthorne. The position in this appeal is different. In this case, the appeal was adjourned to 2nd June 2004 to be heard on its merit. The Court heard the respondent as well as considered the appellant's grounds of appeal, dismissed the appeal and ordered costs of Le.500,000.00 against the appellant. The order of the Court was drawn up and signed on the same day. It was not struck out or dismissed for non-appearance of the appellant. This is a final judgment and the only option left for the appellant is to appeal to the Supreme Court if she wishes. Rule 24(2) does not apply in this case and this Court has no power to direct a re-entry for hearing of an appeal that has been dismissed on the merit. See Hession v Jones (above). The appellant further relies on Rule 26(1) of the Court of Appeal Rules. That rule provides: 26(1) where an appeal has been heard ex parte under rule 25 and any judgment has been given therein adverse to the Respondent, he may apply to the Court to sit aside that judgment and to rehear the appeal". 5 234 Again the language of that rule is plain and unambiguous. It gives the Respondent the right to apply to set aside in adverse judgment made by the Court under Rule 25 (proceedings ex parte for non appearance of the respondent). That is not the case here where it was the appellant herself or by her Counsel did not appear when the appeal was called on and heard. The appellant can take no comfort under Rule 26(1) of Court of Appeal Rules. Lastly, the appellant sought to rely on Rule 66 of the Court of Appeal Rules which provides that: "66. Non-compliance on the part of an appellant with these rules or with any rule of practice for the time being in force shall not prevent the further prosecution of his appeal if the Court considers that the non-compliance was not willful and that it is in the interest of justice that the non-compliance should be waived. The Court may in such manner as it thinks fit, direct the appellant to remedy the non-compliance, and thereupon, the appeal shall proceed. The Registrar shall forthwith notify the appellant of any directions given by the Court under this rule where the appellant was not present at the time when those directions were given." The above rule in our respectful view, applies only to a case where an appellant fails to comply with a provision or provisions of the rules on the practice of the Court on appeals and such non-compliance may be waived by the Court in order to allow the appellant to further prosecute his appeal. However, Rule 66 goes further requiring the applicant to satisfy the Court that the non-compliance was not willful and that it is in the interest of justice that the non-compliance should be waived. This rule entitles the Court to look at circumstances of the case as well as the manner in which the parties conduct the case before the Court to assist it in determining the questions of willfulness and justice of the case. 6 235 With respect, the present case is not one of non-compliance with the rules which may be waived. This is a case of the appellant failing to appear to substantiate her appeal when called upon at the hearing of the appeal. But even if there was an issue of non-compliance with the rules, the appellant has to satisfy the Court that the non-compliance was not willful and that it is in the interest of justice to waive the non-compliance. The Court would be bound to look at the whole circumstances of the case and conduct of appeal by the parties. Regrettably, when one looks at the circumstances and conduct of the case, both in the Court below and in this court, the manner in which this case has been conducted throughout has been very unsatisfactory. The case has been allowed to linger on in the Courts for 17 years (High Court, 2 years and Court of Appeal, 15 years) not because there is any merit in the appeal, but simply because the Courts have been too keen to grant adjournments whenever asked for. This in our respectful view is bordering on an abuse of the process of the Court and an injustice to all the parties, including the appellant, but more so, the bona fide purchaser who pursuant to the Order of the Court, paid for the property only to wait for 14 years and 8 months (to date) to receive the property she had paid for. We all know of the salutary principle that justice delay is justice denied. The present case is in our view an instance of such a case. The Court is under a duty to ensure that parties coming before it obtain justice within a reasonable time. Legal practitioner are equally under the same obligation. We are of the firm view that the justice of this case is in the achievement of finality of litigation, a principle that the Courts must be vigilant in applying it. We must apply it in this case and we do so. His Lordship Gelaga-King JA, had this in mind when he reiterated the maxim. Interest reipublicae ut sit finis litium". Mohamed Fofanah v Mohamed S. Turay (4th March 1988) Court of Appeal, Misc.App.40/87 (unreported) With respect, the Court agrees with Counsel for the Respondent that Section 70 of the Courts Act 1965 applies here and the only option left for the appellant is to take her case further to the Supreme Court by way of an appeal. In this Court, the appeal has been decided finally. 7 236 The application for the Orders sought in this case must be refused and the orders sought are accordingly refused. [signature] BY THE COURT 8