Achieving speedy interlocutory appeals in civil cases: Lawyers and litigants’ dream.

Francisca Serwaa Boateng, Esq.

15^th May, 2022

Introduction

It is said that there is no inherent right of appeal in any litigant. Appeals are created by statute. Therefore, any party in a case who is not satisfied with any decision made or order given by a court must appeal by strictly following the rules applicable to the court where the appeal is to be heard. In Ghana, it is the Rules of Court Committee that has the constitutional mandate to formulate the rules of procedure for the various courts, including the courts where appeals are heard. The rules for filing appeals from a District Court to a High Court are very simple and provide for quick trial of appeals. But when it comes to appeals from cases at the High Court to the Court of Appeal, especially interlocutory appeals, it is a different story altogether. The rules are cumbersome and time-consuming and require preparation of appeal records, among other tedious tasks.

This articles discusses the procedure for filing interlocutory appeals from cases heard at the High Court to the Court of Appeal. It also discusses the simple procedure for filing appeals from decisions of the District Court to the High Court. The article suggests that a similar simplified mode of appeal must be adopted for interlocutory appeals from the High Court to the Court of Appeal and further to the Supreme Court to enhance the justice delivery system. 

Procedure for interlocutory appeals under the Court of Appeal Rules

What is an interlocutory appeal? An interlocutory appeal is an appeal that is filed against an order or decision that is made by a judge in the course of handling a case pending before the court. The order or decision must not be the final judgment of the court. So, if, for instance, a plaintiff issues a writ and serves it on a defendant resident outside Ghana without first obtaining leave of the court, the defendant can apply to set aside the writ for not complying with the High Court Rules.[1] The order the court makes after considering the defendant’s application to set aside the writ will be an interim or interlocutory order because the order so made will not determine to finality the issues that the plaintiff brought to the court against the defendant. A typical example of such interim orders is an order for injunction. In Daniel E. W. Joseph v Okomfo Anokye Stool & Another,[2] the Supreme Court held that an interlocutory injunction is one of the remedies available to litigants as an interim measure. Its purpose is to provide protective or provisional remedies to the parties between the commencement of the action and its final trial or determination.

            What is the time frame for filing an interlocutory appeal? An appeal against an interlocutory order (made by a High Court) to the Court of Appeal must be filed within 21 days.[3] Once this period expires, the appellant cannot file the appeal out of time. The Rules do not allow the appellant to apply for extension of time within which to appeal. Any appeal filed beyond the 21 days will be dismissed.[4] Similarly, an appeal from a Court of Appeal’s decision in an interlocutory appeal to the Supreme Court must be filed within 21 days and there is no opportunity for extension of time when the 21 days period expires.[5]

            Can an appellant in an interlocutory appeal file for stay of proceedings pending appeal? Before C.I 132[6] was passed, an appellant in an interlocutory appeal could apply for stay of proceedings in the case before the trial court pending the determination of the appeal.[7]  The author has stated elsewhere[8] that “[n]ow that Rule 27A has been revoked, legal practitioners must be prepared for the unfortunate situation where proceedings are not stayed pending interlocutory appeals, so cases are heard to conclusion before the trial court, but judgment is given in favour of the appellant by the appellate court, thereby rendering the judgment idle and useless. Such was the situation that confronted the Supreme Court in the Footprint Solutions case.”^[9]

            Do parties in interlocutory appeals ‘settle records’ and provide security for costs? Must the record be transmitted to the appellate court to signify that the appeal is ready? The answer to each of these questions is in the affirmative. So, yes, parties in interlocutory appeals at the Court of Appeal and the Supreme Court must ‘settle records’ and provide security for costs.[10] Also, the ‘record’ must be sent to the appellate court to signify that the appeal is ready to be heard.[11] Now, the period between the settlement of record and the transmission of the record from the trial court to the Court of Appeal or Supreme Court (as a second appellate court) is every lawyer and litigant’s worst nightmare. Both C.I 19 and C.I 16 do not stipulate any time within which a registrar must prepare the record and forward it to the appellate court. It may take more than a year for the record to be prepared and sent to the Court of Appeal before the appeal will even be considered to have been filed, properly speaking. So, in situations where applications for stay of proceedings are denied, interlocutory appeals are rendered useless as most never see the light of day before the main case at the trial court is completed.

            For this reason, most lawyers and litigants have to live with unhappy rulings in interlocutory applications at the High Court simply because the option of appealing against same is not worth the time and resources, not to talk about the emotional costs. This state of affairs make our judicial system unattractive compared to those of other comparable African countries. The long delays in our courts system, including inordinate delays in simple interlocutory appeals, do not make resort to the courts an attractive option for our citizens. Many of our people resort to consulting fetishes[12] and oracles and crooks in religious garb for solutions to their legal problems. How can we blame our people for taking such course if, when they come to our courts for redress, we only offer them delay and protracted proceedings based on convoluted rules we have made ourselves? In the premises, it is suggested that the rules of procedure for interlocutory appeals at the Court of Appeal and Supreme Court must be changed. In their stead, we must adopt simple procedures of appeal such as those regulating appeals from District Courts to High Courts, which is described below.

Procedure for interlocutory appeals in the District Court

The procedure for handling interlocutory appeals from the District Court to High Court is different from what regulates interlocutory appeals from the High Court to the Court of Appeal.^[13] An interlocutory appeal is filed when the appellant submits 4 (or more) files containing a notice of appeal; the motion paper, the supporting affidavit and the exhibits used in the District Court; the respondent's affidavit in opposition and its exhibits, if any; and the order or decision complained of to the Registry of the High Court. The appellant must then pay the appropriate filing fee. The High Court Registrar will stamp all the documents in each file. And each file will be “the record of appeal" for the purposes of the appeal. Therefore, there will be no settling of record or preparation of a record of appeal. The appeal will be filed as soon as it is accepted by the Registrar and the filing fee is paid. No record must be transmitted or forwarded to the High Court before the appeal will be deemed to be filed.

When the record of appeal is thus filed, one file will be served on each party and proof of service will be placed on the court’s docket. Within 14 days of filing the appeal, the appellant must file 4 copies of the "Statement of the Appellant's Case" setting out fully the arguments and the relevant statutes or decided cases the appellant wishes to rely on in support of the appeal. If the appellant fails to file his statement of case, or files it out of time, the appeal may be dismissed. A copy of the appellant’s statement of case must be served on each respondent or their lawyer within 7 days of filing.

A respondent must file "Respondent's Statement of Case” within 14 days of receiving the appellant’s statement of case. It must set out his arguments in full citing all relevant statutes and decided cases he intends to rely on in the appeal. A copy will be served on the appellant. Within 7 days of serving the respondent’s statement of case, the registrar will fix the appeal for hearing and serve hearing notices on the parties. The court may give judgment on the basis of the papers filed and, if necessary, receive oral submissions from the parties or their lawyers.  An interlocutory appeal includes an appeal in respect of a decision or ruling on:(a) any interlocutory application, irrespective of whether the decision disposes of the whole case or not or (b) judgment on the undefended list.

            It is submitted that if the Court of Appeal Rules make similar provision for interlocutory applications from the High Court to the Court of Appeal, the whole landscape of hearing appeals will change for the better. As already noted, the current procedure for filing interlocutory appeals under C.I 19 (as amended) makes no fine distinction in the procedures for appealing final judgments and interlocutory rulings or orders. Under C.I 19, irrespective of whether an appeal is interlocutory or final, parties have to go through the rigours of settling records, preparing records of appeal and waiting for the Registrar to send the record to the Court of Appeal before the appeal will be ripe for hearing. In the result, most parties just accept their fate and live with atrocious rulings as the alternative of filing interlocutory appeal is more lethal. If all an appellant in an interlocutory appeal needs to do is to submit to the Registrar files containing a notice of appeal, the motion paper, the supporting affidavit and the exhibits used in the High Court, the respondent's affidavit in opposition and its exhibits, if any, and the order or decision complained of to the Registry of the Court of Appeal, that will be a great boost in the hearing of interlocutory appeals. Considering the immense experience of most of the Court of Appeal and Supreme Court judges, handling such applications will be a walk in the park, no matter the numbers of such appeals that may be filed.  Indeed, the time lines as set for appeals from the District Court may even be shortened such that, only parties who are sincerely aggrieved by clearly obnoxious rulings will dare to file interlocutory appeals.

Historical antecedents

The suggestion made for the adoption of the simple rules of procedure for interlocutory appeals from the District Court to the High Court for interlocutory appeals to the Court of Appeal and Supreme Court is not without precedent. There are many instances where the Rules of Court Committee has risen to the occasion and changed the rules of procedure to make them more responsive to the changing needs of society and the legal profession. For example, under the old High Court Rules,[14] applications to invoke the High Court’s supervisory jurisdiction by way of prerogative writs (certiorari, mandamus, prohibition, etc.) involved two steps. As a first step, the applicant had to apply by motion ex parte for leave to issue the prerogative writ (motion paper plus affidavit and supporting evidence as exhibits). The second step was that, when leave was granted, then the applicant filed the pursuant motion on notice with a supporting affidavit and exhibits to be served on the other party as respondent. This, no doubt, was a two-stage approach whose only value could be seen in its cumbersome and time-consuming nature.

It is interesting to observe that, while the two-step approach held sway in the High Court for several years, the situation in the Supreme Court was markedly different. Under the Supreme Court Rules,[15] the Supreme Court’s supervisory powers could be invoked by the applicant filing and serving only one application; motion on notice plus a supporting affidavit and exhibits, if any, on the respondent. Needless to say, that was quicker, more efficient and cost-effective than the two-step approach at the High Court.

Not surprising, the Rules of Court Committee did the needful in 2004 when C.I 47 was passed and changed the rules for applications to invoke the High Court’s supervisory jurisdiction to be the same as the procedure at the Supreme Court. That has worked tremendously well and the laborious task of making the same application twice is now a thing of the past. It is submitted that, the same can be done by changing the cumbersome rules on interlocutory appeals to the Court of Appeal and adopting the simple rules regulating appeals from the District Court to the High Court.

Conclusion

Appeals are regulated by rules and the ease and willingness of parties to file appeals depend largely on how simply the rules can get them the desired results with less hassle. If the Rules of Court Committee can adopt the rules on interlocutory appeals from the District Court to High Court for appeals from the High Court to the Court of Appeal and Supreme Court, with the necessary modification, it will expedite the hearing of such appeals at the Court of Appeal. Overall, it will boost confidence in our court system and make it a forum of choice for the trial of cases.