INTRODUCTION
People are at liberty to institute legal actions when there has been an infringement on their rights, a breach of contract, or they have been deprived of what rightfully belongs to them. However, despite an action being instituted, the decision or the judgment of the court in the pursuit of justice in these instances may not go in their favour, thereby being aggrieved by the decision or judgment delivered. In such instances, their rights would not have been totally curtailed as they have the opportunity to bring the decision given to a higher forum for it to be addressed again. It is this process that is referred to as Appeal. Appeals are therefore a vital part of our judicial system here in Ghana and all parts of the world.
An appeal is the legal process by which a higher court reviews a decision made by a judge in a lower court (trial court) where a party to the suit believes the judge at the lower court made an error.
The Black's Law Dictionary 9th Edition defines Appeal as a proceeding undertaken to have a decision reconsidered by a higher authority; especially the submission of a lower court's or agency's decision to a higher court for review and possible reversal.
The party bringing an appeal is the Appellant and the person against whom the Appeal is brought, the Respondent.
An appeal may be brought against the whole or a part of the decision of the court below.
HIERARCHY OF APPEALS
Article 131 of the 1992 Constitution outlines the Appellate jurisdiction of the Supreme Court. An appeal shall lie as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or with the leave of the Court of Appeal in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.
Notwithstanding the above however, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.
Article 137 of the 1992 C0nstitution equally confers appellate jurisdiction on the Court of Appeal and states that the Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of the Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution.
An appeal shall therefore lie as of right from the judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.
Aside the Constitution which confers Appellate jurisdiction on the Supreme Court and the Court of Appeal, the Courts Act, 1993 (Act 459) also confers appellate jurisdiction on the Supreme Court and the Court of Appeal.
Furthermore, the High Court Rules, 2004 (CI 47) as well the Courts Act, 1993 (Act 459) give the High Court appellate powers in respect of cases from the lower courts.
The High Court Rules, 2004 (CI 47) and the Courts Act, 1993 (Act 459) also contain provisions for instances where criminal cases from the District Court and the Circuit Court for appeal purposes are heard at the High Court.
The Hierarchy of Appeals in respect of Criminal and Civil Cases from the District Court is as follows: District Court to the High Court to the Court of Appeal.
Again, the Hierarchy of Appeals in respect of Criminal Cases from the Circuit Court is as follows: Circuit Court to the High Court to the Court of Appeal.
However, civil cases emanating from Circuit Court for appeals move from the Circuit Court to the Court of Appeal and then to the Supreme Court. It is worthy of note that the Circuit Court and the High Court use the same Civil Procedure Rules, the High Court (Civil Procedure) Rules, 2004 (C.I 47) when the matter is of a civil nature. Hence appeals from the Circuit Court in respect of civil cases go straight to the Court of Appeal despite the fact that the Circuit Court is a lower court.
Though appeals emanating from the District court for both civil and criminal cases and Circuit Court in respect of Criminal cases as of right truncate at the Court of Appeal, by Article 131(2) of the 1992 C0nstitution, an appeal shall lie from the Judgment of the Court of Appeal to the Supreme Court where with the leave of the Court of Appeal, it is satisfied that the case involves a substantial question of law or is in the public interest.
With regards to criminal and civil cases initiated at the High Court, the appeal process is from the High Court to the Court of Appeal and then to the Supreme Court.
IS AN APPEAL AS OF RIGHT OR AS OF LEAVE?
ByArticle 137(2) of the 1992 Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.
This presupposes that once the judgment or order to be appealed against is from the High Court, or Regional Tribunal, then the person has an automatic right to appeal to the Court of Appeal.
TIME FRAMES FOR APPEAL
For Appeals emanating from the District Court to the High Court, the time for bringing the Appeal is stipulated in Order 51 rule 3 of CI 47 as well as Section 21 of the Courts Act, 1993(Act 459).
A person wishing to appeal against a decision of a District Court shall file a Notice of Appeal within three (3) months from the date of the decision appealed against. This also applies to appeals from the High Court to the Court of Appeal as provided for in the Court of Appeal Rules, 1997 (CI 19).
A person aggrieved by an interlocutory order or decision made or given by a District Court, may appeal against the decision or order to the High Court with the leave of the District Court or of the High Court, and the High Court shall have jurisdiction to hear and determine the Appeal. However, the application for leave to appeal shall be brought within fourteen (14) days from the date of the order or decision against which leave to appeal is sought.
A person who wishes to appeal in respect of an interlocutory order of the High Court to the Court of Appeal shall do so within twenty-one (21) days from the date of the order.
DOES FAILING TO APPLY WITHIN THE STIPULATED TIME PROVIDED BY THE RULES BAR A PERSON FROM APPEALING?
A party is not barred from appealing to the court despite failure to appeal within the time stipulated in the Rules. One can apply to the trial court or the Appellate Court for an extension of time within which to appeal against a final decision. This is done by a motion supported by an affidavit.
NOTICE OF APPEAL AND GROUNDS OF APPEAL
An appeal is initiated by a Notice of Appeal. The Notice of Appeal must contain the Grounds of Appeal, the decision complained of, the reliefs sought, and the names and addresses for service of all parties directly affected by the appeal.
When the Notice of Appeal is filed, the Registrar shall serve same on all parties indicated in the notice. The Registrar shall equally issue a summons in the form labelled as Form 2 directing the parties to appear before him to settle the Record of Appeal.
It is imperative to draft the grounds of appeal in simple terms as they are the points on which the appeal will be argued. Therefore, the grounds of appeal must not be argumentative or narrative.
The grounds of appeal must not be vague or stated in general terms. If the grounds of appeal allege misdirection or error in law, particulars of same shall be clearly stated.
RECORD OF APPEAL
The Record of Appeal is prepared by the Court below from whose judgment the appeal is emanating from. The Record of Appeal shall consist of the originating process, the pleadings, certified copies of all documents admitted as evidence or tendered as evidence and rejected, the notes of evidence, any interlocutory proceedings or orders, the addresses of the parties or their lawyers or both, the judgment or order of the court below and the notice of appeal.
THE EFFECT OF JUDGMENT WHILE AN APPEAL IS PENDING
An appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed against except where the court below or the court otherwise orders in the case of the court below by an application made orally or by motion on notice to it.
THE APPEAL PROCESS IN GHANA: REMISSION OF THE RECORD OF APPEAL AND ITS EFFECT (THE CASE OF THE REPUBLIC VRS THE HIGH COURT (LAND DIVISION), THE REGISTERED TRUSTEE OF THE PRESBYTERIAN CHURCH OF GHANA, NANA OTENG KORANKYE INTERESTED PARTY) 28TH JUNE, 2023 IN PERSPECTIVE:
This was a case in which the crucial question for determination was whether upon the remission of the Record of Appeal to the lower court, as a consequence of an order by an Appellate Court, the Appellate court cedes its jurisdiction over the matter to the lower court whose registry the record had been remitted.
ANALYSIS BY THE COURT
The Court in analyzing the issue before it made reference to Rule 21 of the Court of Appeal Rules and stated that after the Record of Appeal has been transmitted from the Court below to the Appellate Court, the Appellate Court shall be seized of the whole proceedings as between the parties and every application shall be made to the Appellate Court and not the court below, but an application may be filed in the court below for transmission to the court.
The Court made reference to the case of Republic vrs High Court (Human Rights Division) Accra; ex parte Akita (Mancell-Egala & AG) [2010] and stated that "Once the Civil Form 6 had been served on the trial High Court, that Court no longer had jurisdiction over the case. At that point of the proceedings, the court with the appropriate jurisdiction would be the Court of Appeal".
According to the Court, Rule 21 was not to prolong the jurisdiction of the trial court which had been curtailed by the service of Form 6. The remission of the Record of Appeal was not a direction to the High Court or the court below to carry out a judicial act in the record.
The Court of Appeal does not relinquish its jurisdiction over the appeal because it has remitted the Record of Appeal for errors to be corrected.
The Supreme Court therefore by certiorari quashed the decision of the High Court that assumed jurisdiction to set aside or vary the order for stay of execution as prayed by the Applicant on the basis that the High Court had no jurisdiction.
The above case is to the effect that a lower Court from which a record of proceedings had been transmitted to an appellate court with a service of the Form 6 on the parties no longer had jurisdiction over the case. The appropriate court with jurisdiction is therefore the appellate court despite the Record of proceedings transmitted to the court below for rectification.
CONCLUSION
Appeals therefore give a person aggrieved by a decision of the court an opportunity for the decision to be reviewed by a higher body as generally an appeal is by way of rehearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.