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Practice and procedure - Appeal
- Extension of time -
Computation of time to apply for
extension to appeal -
Interpretation Act, 1960 (CA 4)
ss 23(3) - Supreme Court Rules
1970 (CI 13) r 8(1)(b) and (4).
The Stool Lands Boundaries
Appeal Tribunal delivered a
final judgment on 18 December
1991. When the applicants
obtained a certified true copy
of the judgment the time for
appealing as of right had
elapsed. Under rule 8(4) of CI
13 the applicants had three
months within which to apply for
extension of time to lodge the
appeal. The applicants then
filed an application for
extension of time to the Supreme
Court on 18 June 1992.
Held
- (1) For the computation of the
period within which an
application for extension of
time could be brought the period
of time to appeal under CI 13 r
8(1)(b) must have expired. Only
then would the period for
extension of time under rule
8(4) commence. In the present
application, the first period of
three months ended on 18 March
1992. Therefore the second
three-month period for extension
of time began on 19 March 1992.
Applying section 23(3) of CA 4
to 19 December 1991, its
numerically corresponding date
three months later would be 19
March 1992 less one day, being
18 March 1992. Therefore 18
March 1992 was the last date on
which the applicant could have
exercised his undoubted right of
appeal. The application was
therefore in time. Hungarotex
Foreign Trading Co v Boateng
[1987-88] 1 GLR 205, SC
followed.
Per
Hayfron-Benjamin JSC
The wording of the example in s
23(3) of CA 4 appears on its
face to be misleading and may
incline the unsuspecting to the
view that the period mentioned
is included in the calculation
of the time.
Cases referred to:
Hungarotex Foreign Trading Co v
Boateng
[1987-88] 1 GLR 205, SC.
William v Burges
(1840) A & E 635.
K Mensah-Bonsu
(for da Rocha) for the
applicants.
K Ofosu-Asante
for the respondents.
ADADE JSC.
I have some difficulty agreeing
with the interpretation of s
22(6) of the Interpretation Act
1960 (CA 4) especially in
relation to s 23 of the same
Act. In Hungarotex v Boateng
[1987-88] 1 GLR 205, I
sufficiently articulated these
misgivings in a minority
opinion. The said s 22 and s 23
read as follows:
“22 (1) References in an
enactment to time are to
Greenwich mean time.
(2) Where in an enactment a
period of time is expressed to
begin on a particular day, that
day shall be included in the
period.
(3) Where in an enactment a
period of time is expressed to
be reckoned from, or after, a
particular day, that day shall
not be included in the period.
(4) Where in an enactment a
period of time is expressed to
end on, or be reckoned to a
particular day, that day shall
be included in the period.
(5) Where the time limited by an
enactment for the doing of
anything expires on a Sunday or
a public holiday, the time so
limited shall extend to and the
thing may be done on the first
following day that is not a
Sunday or a public holiday.
(6) Subsection (2) to (5) of
this section apply in relation
to a period expressed in days
whether or not the number of
days is expressed to be clear
days.
(7) Where in an enactment
anything is required to be done
on a particular day, then, if
that day happens to fall on a
Sunday or public holiday, the
thing shall be considered as
duly done if it is done on the
first following day that is not
a Sunday or public holiday.
23(1) In an enactment “month”
means a calendar month, that is
to say, a month reckoned
according to the calendar.
(2) If the period indicated in
the enactment begins on any date
other than the first day of any
of the twelve months of the
calendar it is to be reckoned
from the date on which it is to
begin to the date in the next
month numerically corresponding,
less one, or, if there is no
corresponding date, to the last
day of that month.
For example:
a month beginning on 15th
January ends on 14th February; a
month beginning on 31st January
ends on 28th February (or 29th
February in a leap year).
(3) If the indicated period is
one of two, three or more
months, it is to be reckoned
from the date on which it is to
begin to the date numerically
corresponding, less one, in the
second, third, or other
successive month thereafter or,
if there is no such
corresponding date, to the last
day of the latter month.
For example:
a period of six months beginning
on 15th August ends on 14th
February; a period of six months
beginning on 30th or 31st August
ends on 28th February (or 29th
February in a leap year).
(4) In an enactment “year” means
a period of twelve months.”
It strikes me that when in a
statute a period of time is
expressed in days (e.g. 7 days,
21 days, etc.) s 22 applies. But
when the period is expressed in
months, s 22 no longer applies;
the relevant section is s 23. In
the instant application the
period is expressed in months (3
months in the first instance
plus a grace period of 3
months). The total period of 6
months from the date of judgment
18/12/91, calculated with the
help of section 23 of CA 4
should expire on 17/6/92, and
not 18/6/92. The application for
extension, filed on 18/6/92
would therefore seem to be out
of time.
My brother judges, however, hold
a different view, as they did in
the Hungarotex case. I
respect their view, and on this
occasion I do not wish to carry
my doubts into another dissent.
I accordingly agree that the
application be allowed, as
prayed.
AMUA-SEKYI JSC.
By the decisions of this court
in Hungarotex Foreign Trading
Co v Boateng [1987-88] 1 GLR
205 the application for an
extension of time within which
to appeal was filed on the last
permissible date. The reasons
for the delay having been
satisfactorily explained, I am
of the view that an extension of
time ought to be granted. I also
grant leave to appeal as prayed.
AIKINS JSC.
In view of the decision of this
court in Hungarotex Foreign
Trading Co v Boateng
[1987-88] 1 GLR 205 I also agree
that the application for
extension of time was filed
within time and should be
granted. I therefore grant leave
as prayed.
BAMFORD-ADDO JSC.
I have had the benefit of
reading the ruling on this
matter of the learned President
of this panel as well as those
of my esteemed brothers,
Amua-Sekyi and Hayfron-Benjamin,
both JSC. I am in total
agreement with the latter’s
comments on Hungarotex
Foreign Trading Co v Boateng
[1987-88] 1 GLR 205. I also
agree that application for the
extension of time be granted as
prayed.
HAYFRON-BENJAMIN JSC.
I also agree that this
application be granted. In
argument before us the
applicant’s counsel referred us
to the case of Hungarotex
Foreign Trading Co v Boateng
[1987-88] GLR 205, a decision of
this court on an identical issue
which we are normally bound to
follow.
As it appeared from the digest
that there was a dissenting
opinion, I took the liberty of
reading the actual ruling. I am
satisfied that the majority of
Their Lordships in the
Hungarotex case were right
in the computation of the time
within which the appeal was to
be lodged.
In the instant application the
judgment of the Stool Lands
Boundary Settlement Commissioner
was properly appealed to the
Stool Lands Boundaries Appeal
Tribunal. That tribunal
delivered its judgment on the
18th December 1991. It is agreed
by all that it was a final
judgment in which the present
applicants, if they had cared
to, could have filed their
notice of appeal timeously with
the general ground that “the
judgment is against the weight
of evidence”. Rule 6(5) of the
Supreme Court Rules 1970 (CI 13)
permits an appellant to state
this ground of appeal without
more and to have his appeal
heard on that ground alone. The
appellant chose not to do so but
in his own words to wait “for a
certified true copy of the
judgment of this Honourable
Tribunal to enable me advise
(sic) myself properly as to
whether I should proceed with my
intended appeal”. When the
certified true copy of the
judgment was obtained the time
for appealing as of right had
passed. But under the rules the
applicant had three months
within which to apply for
extension of time to lodge his
appeal.
Rule 8(4) of CI 13 reads as
follows:
“An application for extension of
time within which to lodge an
appeal in respect of a final
decision shall not be made after
the expiration of three months
from the expiration of the
period prescribed by this rule
within which an appeal may be
lodged.”
The applicant applies to this
court under this rule and
contends that the date on which
he filed his application in this
court - that is the 18th June
1992 - was the last date
permitted him under that rule.
Now rule 8(1) of CI 13 provides
as follows:
“Subject to the provisions of
any enactment governing the
same, a civil appeal shall be
lodged within ...
(b) three months in the case of
an appeal against a final
decision.”
If the judgment in the
application was delivered on the
18th December 1991, then when
did the undoubted right of
appeal expire? In this
application we are concerned
with section 23(3) of the
Interpretation Act (CA 4) which
reads:
“If the indicated period is one
of two, three or more months, it
is to be reckoned from the date
on which it is to begin to the
date numerically corresponding,
less one, in the second, third
or other successive month
thereafter or, if there is no
such corresponding date, to the
last day of the latter month.”
The period under consideration
is three months and rule 8
(1)(b) says that “the appeal
shall be lodged within three
months...”. The learned editor
of Earl Jowitt’s Dictionary
of English Law under the
word “day” states as follows:
“If anything is to be done
within a certain time or, from
something else, the day on which
the first act or occurrence
takes place is excluded from the
computation.”
The learned editor cites the
English case of William v
Burges (1840) A & E 635 in
support of this proposition. I
have not had the benefit of
reading this case, but I do not
challenge the veracity of the
statement. If this proposition
is right, then, since the
judgment was delivered on the 18
December 1991, the three months
period should be computed
beginning from the next day -
that is the 19th December 1991.
Applying section 23(3) to the
present application then the
date 19 December 1991 to its
numerically corresponding date
three months later will be the
19 March 1992 less one day and
the date is 18 March 1992.
Therefore 18 March 1992 was the
last date on which the applicant
could have exercised his
undoubted right of appeal.
Now the wording of rule 8(4) is
interesting because not only is
the interpretation cited from
Earl Jowitt’s Dictionary of
English Law applicable to
the computation of time under
that subsection, but also the
subsection states that the
extension of time shall not be
made “after the expiration of
three months from the expiration
of the period prescribed by this
rule within which an appeal may
be lodged”.
Thus, for the computation of the
period under consideration the
first period of time must have
expired, and then, and only
then, can the second period of
time commence. In the instant
application the first period of
three months ended on 18 March
1992. Therefore, the second
period of three months began on
the 19th March 1992. By the same
calculation, the numerically
corresponding date three months
later will be 19 June 1992, less
one day and the date will be 18
June 1992.
The wording of the example given
under section 23(3) appears on
its face to be misleading and
may incline the unsuspecting to
the view that the period
mentioned is included in the
calculation of the time. The
operative words in that example
are “beginning on the 15th
August”. In my respectful
opinion if something is to begin
on a particular date then,
unless the law says otherwise it
should actually begin on that
date - that is to say that date
is inclusive in the calculation
- something ended the previous
day and the new thing is to
begin immediately thereafter.
In his dissenting opinion in the
Hungarotex case the
learned President of this panel
who made that contribution
referred to certain passages
from the Annual Practice
and the Encyclopaedia of
English Law which rather
support the approach to the
issue which I have taken in this
application. That he came to a
conclusion different from those
of his brethren I cannot fathom.
But it will suffice as a final
statement that if even reliance
were placed on rule 8(2)(a) of
CI 13 which states:
“(2) The period specified in the
preceding sub-rule shall,
(a) in the case of an appeal as
of right, be calculated from the
date of the decision appealed
against...”
section 22 (3) of the
Interpretation Act (CA 4) states
clearly that:
“Where in an enactment a period
of time is expressed to begin
from or after a
particular day, that day shall
not be included in the period.”
(Emphasis mine.)
It must be emphasised that in
the context of the
Interpretation Act (CA 4) the
words “date” and “day” are used
interchangeably and have the
same meaning. Clearly time in
the instant application began to
run not from the 18th March 1992
but from the 19th March 1992.
The application was therefore in
time.
Application for extension of
time granted.
S Kwami Tetteh, Legal
Practitioner. |
