|
RULING
OWUSU-ANSAH, JA:
This is a MOTION on
notice by Nathaniel Myers for and on behalf of the
applicant herein praying this Court for extension of
time within which to appeal and for a stay of execution
pending the hearing of the said application on the
grounds contained in the accompanying affidavit and on
such other grounds as to this Court may deem fit.
The Affidavit in
support of the motion deposes to the fact that on the
28/5/99 the High Court sitting in Accra delivered a
judgment against the Defendant/Applicant.
According to the
Defendant/Applicant when he was served with entry of
judgment he consulted counsel for advice but had to
travel at short notice, only to find on his return that
his solicitor had filed an application to pay the
judgment debt by installment.
The Defendant appellant
states that he was aggrieved by the said judgment and,
accordingly wanted to appeal. However, he was informed
by his solicitors that he was out of time. The judgment
was delivered on the 28/5/99.
The motion on Notice
for extension of time within which to appeal was filed
in the Court below within the requisite period on the
30/9/99 and fixed for hearing on the 11/10/99. Be that
as it may no decision or ruling was given on the matter
until the 22/12/99. It went against the applicant.
On the 23/12/99, the
instant repeat application was filed in this Court.
Counsel for the
Respondent raised a preliminary point of law, arguing
that the application was “out of time and incompetent”.
Counsel submitted further that the application should
have been filed in the Court of Appeal on or before the
28/11/99 i.e. within a period of six months from the
date of the judgment on the 28/5/99 in accordance with
the provisions of Rule 9(7) of CI 19: which provides
that "(7) Notwithstanding Rule 28 of these Rules, no
application shall be made to the Court for extension of
time within which to appeal after six months from the
date of the decision appealed against."
In response there to
counsel for the defendant/applicant submitted that his
application was well founded. He refers to Rule 28,
which provides:
“subject to these Rules
and to any other enactment, where under any enactment an
application may be made either to the Court below or to
the Court it shall be made in the first instance to the
Court below but if the Court below refuses to grant the
application the applicant shall be entitled to have the
application determined by the Court”.
Accordingly, says
counsel, he submitted the application to the court below
in the first instance. Thereafter, the further
application for extension of time was made to this court
under Rule 9(4) This Rule states.
“No application for
extension of time in which to apply shall be made after
the expiration of 3 months from the expiration of the
time prescribed by this rule within which an appeal may
be brought.”
Counsel for the
respondent submits further that he was therefore within
time because until the court below had failed or refused
to grant the application his further right to come to
this court would remain; his right is in effect
suspended. Counsel refers to Rule 9(8) which provides:
“For the purposes of Rule 4 of this Rule and Rule 28
where a person has applied to the Court below for
extension of time within which to appeal and after a
period of not less than one month the Court below fails
or refuses to grant the application, the applicant may
subject to sub-Rule (5) of this rule, move the court to
determine the application”.
The operative words in
this Rule are "fails or refuses". In this context, in my
view, “to fail” presupposes inaction, whereas “to
refuse” implies a positive act. According to the Oxford
Reference Dictionary to fail means “not to succeed, to
disappoint, to let down, to neglect, to forget, to be
unable”.
“To refuse”, on the
other hand, is “to reject, to say or show that one is
unwilling to accept, give or do; to indicate
unwillingness, not to grant a request made”.
For this reason I find
myself regretfully unable to share the views expressed
by the Respondent's learned Counsel in this connection.
It could not have been
the intention of the legislature in the fullness of its
wisdom, to grant open ended, almost limitless period
within which to make such an application for extension
of time. For that, in my view, would be
counter-productive.
Therefore there must be
a time limit. When an application has been made to the
Court below in the first instance one cannot wait
indefinitely for the Ruling of the Court below before a
repeat application is made to this Court.
In my judgment the
Court below is enjoined, on the strict interpretation of
these Rules, to grant or refuse the application within
the time limits.
And an applicant for
extension of time must keep his eyes open to ensure that
he is not in breach of Rule 9(7) whether or not the
Court below gives its ruling within that period. In
other words the application to this Court for extension
of time can only be made after one month if the Court
below fails or refuses to grant it in accordance with
Rule 9(8).
However, a repeat
application to this court must be made in compliance
with rule 9(7) whether or not there has been a refusal
of the application by the court below.
No party has
unqualified right to an extension of time. Otherwise it
would defeat the purpose of the rules which is to
provide a reliable time table for litigants.
It is appreciated that
the ultimate aim of the judicial process is to effect
compromise between law and society between the
technicalities of legal science and the requirements of
social justice.
But in this case the
Court has no power or discretion to interfere with the
relevant statutory provision i.e. Rule 9(7) of CI. 19.
The preliminary point
of law raised by counsel for the respondents is well
founded and must be upheld.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL.
BROBBEY, JA.:
I also agree that the
motion fails as being without merit. In the terms of
rule 28, no application can be made in the appellate
court without first applying to the trial court. In
anticipation that there could be delays or frustrations
in the trial court, what should be done while the
application is pending has been spelt out by rule 9(8)
which provides that:
“For the purposes of
sub Rule (4) of this Rule and Rule 28, where a person
after applied to the Court below for extension of time
within which to appeal and after a period of not less
than one month the Court below fails or refuses to grant
the application, the applicant may subject to sub Rule
(5) of this Rule move the Court to determine the
application.”
In the instant case,
the judgement was given on the 28th of May 1999. The
applicant did not appeal within the statutory three
months. On 30th September 1999, he applied in the lower
Court for extension of time within which to appeal.
Because of the provisions of Rule 9(7), he knew that no
application for extension of time could be made six
months from the 28th of May 1999. He should therefore
have complied with Rule 9(8) by applying to this Court
within one month after filing the application in the
lower Court. Even if that would have amounted to
duplication of applications, that was the procedure
which was required to be followed. He failed to do that.
Instead, he filed his
application in this Court long after the six month
period had expired i.e. on 23rd December 1999.
The statutory
provisions referred to in this ruling make no room for
this Court to grant any extension of time after the
expiration of six months.
The instant application
for extension of time before this Court is consequently
incompetent and should be dismissed.
S.K. BROBBEY
JUSTICE OF APPEAL
WOOD JA:
I also agree
G. T. WOOD (MRS)
JUSTICE OF APPEAL |
