pages.gif

Practice and procedure – Appeal – Re-listment – Appeal struck out for non-compliance with conditions of appeal – Appeal Court may re-list for good and sufficient cause – Meaning of “good and sufficient cause” – Whether good chances of appeal succeeding good cause – Whether important point arising in appeal good cause – Whether High Court registrar has power to extend time –Court of Appeal Rules 1962 (LI 218) r 19(3).

Practice and procedure – Appeal – Conditions – Extension of time – Whether registrar has power to extend time to fulfil conditions.

Legal practitioners – Counsel – Conduct – Bar boycotting courts – Whether valid ground for absence of counsel from court – Legal Profession (Professional Conduct and Etiquette) Rules 1969 (LI 613) r 9(6).

The applicant who appealed from the High Court to the Court of Appeal failed to fulfil the conditions of appeal and the appeal was dismissed. In his application to relist the appeal, the applicant explained that he had travelled outside Accra and the registrar assured his counsel of enlargement of time to fulfil the conditions of appeal upon the applicant’s return. The appellant’s counsel argued that the appeal involved an important principle of law upon which the court ought to make a pronouncement, also that the appeal had a good chance of success. Counsel for respondent denied that the appellant travelled out of town as alleged and that the power to enlarge time was vested in the court not the registrar.

Held: (1) The Court of Appeal Rules 1962 (LI 218) r 19(3) enjoined the applicant to offer a good and sufficient cause for the grant of the application to relist the appeal. The rule vested the court with discretion to be exercised judicially. “Good and sufficient cause” must not be defined narrowly. “Cause” in the context referred to the reason for default in fulfilling the conditions of appeal. “Good and sufficient cause” must therefore embrace reasonableness and justice. “Sufficient” did not imply conclusiveness, for there was nothing compelling in the rule. Thus if the applicant satisfied the court that he acted honestly and from honest motives or that the circumstances were beyond control, good and sufficient cause would have been established. The instances were by no means exhaustive, but before the court would exercise the discretion the applicant must establish good and sufficient cause. There was no time limit for such application; each case must be determined on its merits.

(2) On the facts the applicant and counsel had been negligent. They failed to exercise the degree of diligence required of a litigant interested in prosecuting the cause and strangely chose to rely upon a promise of extension by the registrar instead of applying to the court. The fact that an important point of law would arise in the appeal was not a sufficient cause for the grant of the application neither was the fact that the appeal had a good chance of success. New India Assurance Co Ltd v Manang [1968] GLR 538, CA referred to.

Per Benin JA. And worse of it all, the matter came before this court and yet counsel for the applicant did not appear because he was responding to the call by the Ghana Bar Association to boycott the courts. Even if that decision by the Bar was right and binding on its members, it was not binding on this court, nor did it have a persuasive effect on it. I say so in view of the provision contained in the Legal Profession (Professional Conduct and Etiquette) Rules 1969 (LI 613) r 9(6). The rule is clear that counsel who has accepted a brief has no legal right to stay out of court; he would be in breach of duty to the client as well as the court. This court could charge counsel for contempt for failing to appear before it. Having so wronged the court the same counsel cannot seek relief on account of the wrong. The other counsel was in court, for he knew he had a duty towards his client, his profession and the court.

Case referred to:

New India Assurance Co Ltd v Manang [1968] GLR 538, CA.

Application to relist appeal dismissed for non-fulfilment of conditions of appeal.

Dick Anyadi for the applicant.

N K Kudjawu for the respondent.

LAMPTEY JA. On 24 April 1994 the High Court, Accra entered judgment for one Alice Adorkor (hereinafter referred to as the respondent) against James Gbewonyo (hereinafter referred to as applicant). The trial judge declared title to house number, 328 North Kaneshie, Accra in the respondent. He ordered that the respondent recover possession of the said house from the applicant. He dismissed the counterclaim of the applicant. Aggrieved and dissatisfied with the said judgment the applicant filed his notice of appeal on 20 June 1994. In due course the applicant was formally invited by the registrar to fulfil the conditions of appeal. The applicant failed and neglected to attend on the registrar and also to fulfil conditions of appeal. The appeal was accordingly dismissed because of the failure on the part of the applicant to fulfil the conditions of appeal.

The applicant applied to this court praying for an order re-listing the appeal. The respondent vehemently opposed the application.

In arguing the motion for the re-listing of the appeal, counsel for the applicant repeated in substance the matters contained in the affidavit in support of the motion; namely, that at the material time the applicant had travelled outside Accra, and further that he, counsel for the applicant was personally told by an official of the registry that time would be enlarged by that official to enable the applicant to fulfil the conditions of appeal whenever he returned to Accra. In reply, counsel for respondent disputed and challenged the statement that applicant travelled outside Accra. He submitted that the power to enlarge time in the circumstances was vested in a court or a judge. He contended that an official of the court had no power or right to enlarge time. He submitted that the failure on the part of the applicant to fulfil the conditions of appeal had not been satisfactorily explained. He invited the court to refuse the application.

The Court of Appeal Rules 1962 (LI 218), rule 19(3) provide as follows:

“19(3) An appellant whose appeal has been dismissed under this rule may apply by motion on notice that his appeal be restored, and the Court may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

The test laid down in the rule is a fairly simple one. The applicant is enjoined to give a good and sufficient cause to explain the delay and inability to fulfil the conditions of appeal within the time specified in the rule.

The reasons put forward by the applicant in the instant application were stated at paragraphs 7 and 8 of the affidavit in support as follows:

“7 That I am informed and verily believe that at the time the schedule officer fixed the date for the fulfilment of the conditions of appeal my counsel informed the schedule officer that he understood that I had travelled and was not sure whether I would be back early enough to fulfil the conditions within the time limit.

8 That my said counsel informs me and I verily believe that the schedule officer, Mr Bannerman assured him that if I was not back to fulfil the conditions of appeal within the period fixed then he, my counsel, should give me a letter any time I came in which event he would inform the Registrar and allow me to fulfil the conditions.”

I wish to observe that the applicant failed and omitted to state the date he left Accra and the date of his return to Accra. Again he did not state his destination even though the respondent had challenged the statement that he travelled out of Accra. The failure and omission to provide the court with further and better particulars of the journey made by applicant showed and demonstrated that the applicant failed to give a good and sufficient cause to the court. I am of the view that in the circumstances, the applicant should have provided the court with an affidavit from Mr Bannerman, described as an officer of the court by the applicant, to corroborate the statement attributed to him. Though the applicant averred that his counsel (who also appeared in this application as his counsel) was to provide him a letter addressed to the registrar in this matter, he failed and omitted to provide the court with a certified true copy of the said letter. I have drawn attention to the above matters for two reasons. First, the matters establish that the applicant did not provide the court with good and sufficient cause as required by the rule. The second reason is to draw attention to the need for an applicant to provide the court with corroborative evidence in the appropriate case.

Counsel for the applicant rested his application on another ground.

He referred to the notice of appeal and contended that one of the grounds of appeal raised an important principle of law. He pressed us to grant the application to enable the Court of Appeal at the appropriate time pronounce on this important principle of law. In reply, counsel for the respondent disputed the statement that an important principle of law was raised in the notice of appeal.

In considering this submission I have found the case of New India Assurance Co Ltd v Manang [1968] GLR 538 very helpful and instructive. In that case the Court of Appeal held as follows:

“The court of course welcomed every opportunity offered it to pronounce upon important principles of law, but the opportunity came only when those who are responsible for bringing to the court matters involving important principles of law acted with the diligence and promptness that the rules of court required. The delay in fulfilling the conditions of appeal was caused solely by the inexcusable negligence of the defendant’s counsel who deliberately slept on his client’s rights and he could not complain when those rights subsequently disappeared.”

I have made a finding that the applicant had not offered a satisfactory explanation for his failure to fulfil the conditions of appeal within time. The applicant failed without plausible excuse to act timeously; the plea that an important principle of law would be raised on appeal is not a good and sufficient cause to salvage the right lost by the applicant.

For the reasons given above I refuse the prayer of the applicant.

ESSILFIE-BONDZIE JA. In this application the defendant-appellant-applicant is asking for an order under rule 19(3) of LI 218 that his appeal which was dismissed on the 20 March 1995 for non-fulfilment of the conditions of appeal be re-listed and further to extend the time within which to fulfil the conditions of appeal.

The undisputed facts in this application are that on the 21 April 1994 judgment was given by the High Court against the defendant-appellant-applicant. The defendant-appellant-applicant appealed and the records of appeal were settled on the 19 August 1994. The defendant-applicant was given one month up to 19 September 1994 to fulfil the conditions of appeal. When the time came the defendant-applicant failed to turn up. His counsel told the scheduled officer that his client had travelled and was not sure whether he would be back early enough to fulfil the conditions within time. The applicant was unable to fulfil the conditions of appeal until the appeal was called before the Court of Appeal on the 20 March 1995 when the court dismissed the appeal for non-fulfilment of conditions.

Rule 19(1) of the Court of Appeal Rules 1962 (LI 218) provides:

“(1) If the appellant has complied with none of the requirements of rules 12(4) and 13 the registrar of the court below shall certify such facts to the court, which may thereupon order that the appeal be dismissed with or without costs.”

Rule 19(3) also reads:

“Any appellant whose appeal has been dismissed under this rule may apply by motion on notice that his appeal be restored and the Court may in its, discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

In his submission learned counsel for the applicant conceded that the latter was in default in the fulfilment of the conditions. He said he informed the court officer that his client had travelled and the officer agreed to postpone the fulfilment of the conditions and that the appeal was put before the Court of Appeal without the knowledge of his client.

Mr Kudjawu countered the above assertions and contended that the applicant’s claim that a court officer promised to postpone or extend the time was a mere invention and that the applicant was not interested in prosecuting the appeal. He added that the respondent is an 81 year old woman and that the applicant deliberately refrained from fulfilling conditions so that the appeal could not be heard; that the applicant’s conduct is a ploy to drag the matter indefinitely until she died. It is to be observed that the applicant is living in the house whose extension is in dispute. The defendant went to live there when he married the respondent’s daughter who is now deceased.

On the question of negligence on the part of the applicant, it would be noted that the latter had always been represented by counsel. It seems therefore strange to me that when counsel realised he was out of time he chose to go to the registrar of the court instead of applying to the court below for extension of time to fulfil conditions. Besides although he claimed that the registrar or the scheduled officer promised to allow him time to fulfil conditions, he never caused the said officer to swear to an affidavit to that effect. I am inclined to share Mr Kudjawu’s fears.

It must be pointed out that the courts are not in the habit of depriving successful litigants of the fruits of their victory. As rule 19 demonstrates the court exercises its discretion for good and sufficient cause.

The applicant’s plea is that the appeal has a chance of success. He was claiming ownership of an extension (which he and the respondent’s late daughter made whilst living in the respondent’s house). He maintained that the respondent gave him and his wife permission and a promise to build the extension on the respondent’s premises. And since his wife is dead he is entitled to possession thereof. The respondent denied the applicant’s claims. She persisted in her claim that she built the extension to her house without any help from her late daughter and the applicant. The trial judge appeared to have believed and accepted the version of the respondent and gave judgment in her favour

Be that as it may, I am satisfied from the affidavits filed by the parties that the applicant and his counsel have not only been guilty of negligence but failed to exercise that degree of diligence which was required of litigants interested in prosecuting their case. The applicant’s conduct showed a deliberate intention to refrain from fulfilling conditions, so that the appeal could not be heard. He has slept on his rights and cannot be heard to say that he had good points of law to canvass on appeal.

In New India Assurance Co Ltd v Manang [1968] GLR 538 when the Court of Appeal was faced with a similar situation it held (as appears in the head notes) as follows that:

I share the views and sentiments expressed in the case cited but hold that in this application the applicant has not manifested a good and sufficient cause to persuade this court to exercise its discretion to relist the appeal and grant an extension of time to fulfil conditions of appeal. The application is dismissed accordingly.

BENIN JA. Madam Alice Adorkor was, until the death of her daughter, the mother-in-law of J K Gbewonyo. Madam Alice Adorkor will hereinafter be referred to as the respondent, and J K Gbewonyo as the applicant and the respondent’s daughter as the deceased. The respondent acquired a house numbered 328 from the State Housing Corporation at North Kaneshie, Accra. Certain extensions were made to this building and a new house was erected on a portion of this plot on which the house stands. The financing of the extensions and the new house was the subject of land litigation before the High Court, Accra, between the respondent as the plaintiff and the applicant as the defendant. Both claimed to have financed that construction. For her part the respondent claimed to have done so out of her own resources, and for his part the applicant claimed to have done so with the deceased having secured an assurance or promise from the respondent that the applicant and deceased would have same as their bona fide property upon the death of the respondent. The trial court found for the respondent and in its judgment delivered on 21 April 1994, it upheld the respondent’s claim for declaration of title and recovery of possession and dismissed the applicant’s counterclaim. In June 1994 the applicant lodged an appeal with this court against the decision of the trial High Court.

And in accordance with the rules of court the applicant was to fulfil conditions of appeal imposed by the registrar. He failed to do so. And again in line with the rules of court the registrar certified this fact to this court, which in full session dismissed the appeal for non-fulfilment of conditions of appeal. By the present application the applicant is praying this court to re-list the appeal and to extend time for him to fulfil the conditions of appeal. This application has been brought under rule 19(3) of the Court of Appeal Rules 1962 (LI 218) which provides that:

“An appellant whose appeal has been dismissed under this rule may apply by motion on notice that his appeal be restored, and the court may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

The entire rule deals with non-fulfilment of conditions of appeal.

Sub-rule 3 gives this court discretion; discretion given to an adjudicating body must be exercised judicially. Before this court embarks upon any exercise of its discretion the condition precedent is that an applicant must satisfy it that he has not only a good cause but also a sufficient cause in not fulfilling the conditions of appeal. It is only when this condition precedent has been satisfied by an applicant that this court can exercise of its discretion by allowing his application on terms. There is, however, no time limit within which such an application may be brought, each case will be determined on its own peculiar circumstance and merits.

What therefore is meant by good and sufficient cause? I think we should not attempt to define in a narrow compass what these words may mean. In other words we should avoid giving them a narrow definition or construing them narrowly; nor should we give them a restricted meaning. For as said earlier each case will have to be determined on its peculiar facts and circumstances. Therefore “cause” as used in this context can only mean the reason which did not enable the act (ie conditions of appeal) to be performed. Good and sufficient cause will therefore embrace reasonableness and justice. “Sufficient” as used in the rule should not be given the meaning of conclusiveness, for there is nothing compelling in the rule to suggest that. Thus in my view an applicant, if he is able to satisfy the court that he acted honestly and from honourable motives or that the circumstances were beyond his control (eg act of God, force majeure, unavailability of the court registrar) then he could be said to have enough reason and therefore would have shown good and sufficient cause within the meaning of the rule. The instances I have given are by no means exhaustive, but whatever they may be the applicant should be found to have acted reasonably enough in the circumstances having regard to the reasons he has assigned for non-fulfilment of the conditions of appeal.

There is no need to stress that these rules are designed to ensure finality in litigation, hence the need for a party who has lost his right in the course of litigation to satisfy the court that it is reasonable and just to allow him to come back. What does the applicant say? He admits, albeit through his counsel, that he was given one month to fulfil the conditions of appeal. He says further that at the time the conditions were imposed he was out of the jurisdiction which was explained to mean outside Accra. The applicant continues thus:

“8 That my said counsel informs me and I verily believe that the schedule officer, Mr Bannerman assured him that if I was not back to fulfil the conditions of appeal within the period fixed then my counsel should give me a letter any time I returned for the registrar to allow me to fulfil the conditions.

9 That on the strength of that assurance, as soon as my counsel was able to contact me he gave me a letter addressed to the registrar of the High Court and directed me to see Mr Bannerman who would allow me to fulfil the conditions of appeal. A copy of my counsel’s said letter is hereto annexed and marked exhibit B.

10 That unfortunately when I went to the registry I found that Mr Bannerman had proceeded on leave. The officer who was then acting for him asked me to come back after 2 weeks to enable him find the relevant docket before deciding what to do.

11 That it was on my third visit to the registry that this new officer finally told me that he did not understand what had happened in this matter so my counsel should come and see the registrar himself about it.

12 That I am advised by my counsel and verily believe that when he (my counsel) went and saw the registrar responsible for that schedule, Mr J D Tawiah, the latter informed him that he saw a certificate that the conditions of appeal had not been fulfilled on the docket awaiting his signature but he had not signed it as he also saw our letter explaining our lateness and thought it should be considered.

13 That I am advised and verily believe that Mr Tawiah promised to consult the Ag Chief Registrar, Mr Agblettah, and let my counsel know what decision had been taken.

14 That I am advised by my counsel that the said consultation between Mr Tawiah and Mr Agbletta did not take place for sometime.

15 That it was out of anxiety about the delay in the decision whether to allow me to fulfil the conditions that my counsel went to the Chief Registrar, Mr Agblettah, only to be told that the docket had been transmitted to the registry of the Court of Appeal with the registrar’s certificate that the conditions of appeal had not been fulfilled.

16 That I verily believe that in view of the peculiar circumstances of this case and especially the fact that we were awaiting the decision of the chief registrar as to whether on the strength of my counsel’s explanations I should be permitted to fulfil the conditions of appeal or not, any decision by the High Court registry not to allow me fulfil the conditions of appeal should at least have been communicated to me or my counsel before the same was certified to the Court of Appeal.

17 That I am advised and verily believe that had we had any information that I was not to be allowed to fulfil the conditions we would have filed an immediate application for extension of time within which to fulfil the conditions.

18 That it so happened also that the week after my counsel had discovered that the matter had been transmitted to the Court of Appeal the Ghana Bar Association declared a boycott of the courts for one month.

19 That it was while my counsel was attempting to contact me to sign an affidavit to apply for extension of time during, the period when the lawyers were not attending court that this matter without my knowledge or that of my counsel came before this honourable court.

20 That I am advised and verily believe that the respondent’s counsel, despite the boycott, attended court and had my appeal struck out for non-fulfilment of the appeal conditions.”

The affidavit goes on to say that the applicant will suffer irremediable hardship if he is not allowed the chance to prosecute the appeal.

The burden of satisfying this court that he has a good and sufficient cause for this application rests solely and throughout the proceedings on the applicant; it never shifts. The respondent, if he is mindful to assist the court, may only raise such facts as would go to prove the falsity or otherwise of the applicant’s deposition on oath, but he is not bound to say anything at all. To begin with, the applicant says he was out of the jurisdiction when the record was settled and he so remained outside for the one-month duration the registrar allowed him to fulfil the condition of appeal. He had up to 19 September 1994 to fulfil the conditions of appeal. But it was not until 11 November 1994 that his solicitor wrote the letter exhibit B - referred to in paragraph 9 of his affidavit to be given to the registrar to allow him to fulfil the conditions of appeal.

Counsel for the applicant would want this court to believe that the registrar arrogated to himself the right, nay the power, to determine that the applicant could at the latter’s pleasure fulfil the conditions of appeal even after the time allowed had expired. Counsel knew the registrar had no such power or right and that it was only the court which had the discretion to do so, even then with good reason. The registrar also knows this or must be deemed to know and must thus not do anything to usurp the court’s powers. And at any rate even if it were true that the registrar gave that assurance or promise to counsel it could only be limited to the time the registrar fixed. In other words even thought the applicant was not available at the time the record was being settled yet he could come at any time within one month to fulfil the condition.

There is a presumption that official duty has been performed regularly and within the law. See section 37(1) of the Evidence Decree 1975 (NRCD 323) which merely restates the common law presumption omnia preaesumuntur rite esse acta, particularly applicable to judicial and governmental acts. That presumption must apply to this case because both counsel for the applicant and the registrar knew from the rules of the court that the latter had no power to grant extension of time for the applicant to fulfil conditions of appeal. And counsel for the applicant concedes this fact. Therefore when the time expired counsel who was for all purposes relating to this appeal (as can be gathered from his role) was acting as agent for the applicant could have applied for the extension of time when the client did not show up in time. And granting that he had no such instructions or authority, express or implied, he should have advised the client to apply immediately to the court for extension of time when he surfaced in November 1994. He did not do so. And the registrar who gave him the promise was said to be on leave and yet still he did not deem it fit to apply to the court. He sought to go through the side door when he knew he could not do that. A party who stands to lose in an action if he fails to perform a particular act must always be vigilant or diligent. Having filed an appeal the applicant was not expected to go to sleep, and expect that the court would come to his aid. For equity aids the vigilant and not the indolent. As at 11 November 1994, the applicant must have realised that he could not fulfil the conditions of appeal for whoever assured him, if at all there was such an assurance, was not at post. Yet he took no proper legal steps.

And then came 1995. The next schedule officer told him the matter had been certified by the Acting Chief Registrar and forwarded to the registry of the Court of Appeal. At that stage it must have become apparent to both counsel and the applicant that the matter had passed out of the jurisdiction of the High Court. And so any prudent appellant and his counsel would waste no more time in applying to this court for extension of time. They did not do so. And by the applicant’s own affidavit, paragraph 18 thereof, at least one week expired between the date his counsel discovered that the record had been transmitted to the Court of Appeal and the date he claimed the Ghana Bar Association declared its boycott of the court, and within that period of one week I consider it sufficient time for an application to have been filed having regard to the circumstances recounted by the applicant himself in his affidavit. And once the record was transmitted counsel and the applicant knew it could be put before this court at any time for an order dismissing same. And the applicant is saying his counsel was then looking for him to sign an affidavit, a clear indication that he himself was not vigilant and diligent and was surely not interested in the appeal.

And worst of it all, the matter came before this court and yet counsel for the applicant did not appear because as he told this court, he was responding to the call by the Ghana Bar Association to boycott the courts. The applicant and his counsel would want this court to accept that they would want to do as it pleases them. They would not fulfil the conditions of appeal within the month allowed; they would want the registrar to do the illegal thing by allowing them to fulfil the conditions of appeal out of time; they would not apply for extension of time even after they had become aware that the record had been transmitted to the Court of Appeal with a certificate that the conditions of appeal were not fulfilled. And even at that stage when counsel was eager to file documents the applicant who must be personally interested was not found. And eventually when the matter was put before the court for a decision counsel failed to turn up because of what appears to be a wrongful decision taken by the Ghana Bar Association.

And even if that decision by the Bar was right and binding on its members, it was not binding on this court, nor did it have a persuasive effect on it. I say so in view of the provision contained in Rule 9(6) of the Legal Profession (Professional Conduct and Etiquette) Rules 1969 (LI 613). It states:

“A lawyer who neither attends in court himself nor makes arrangements for a responsible member of his firm or staff or agent or some other lawyer to be present throughout in court proceedings in which he or his firm is acting is guilty of a breach of duty to the court, his client and his profession.”

This rule is clear that counsel who has accepted a brief has no legal right to stay out of court; he would be in breach of duty to the client as well as the court if he did that. This court could very well charge counsel for contempt for failing to appear before it and thereby breaching his duty to it. Having done a wrong to the court the same counsel cannot come back to the same court to ask for relief on account of his wrong. As he says, the other counsel was in court, for he knew he had a duty towards his client, his profession and the court.

In my view the applicant has not shown good cause let alone a sufficient one. His attitude and conduct have been most unreasonable and it will be plainly unjust to allow him back into this matter. There must be an end to litigation. And it must be stated that the merits of an appeal do not constitute good and or sufficient cause in considering an application under this rule. An appeal is a statute-granted right so however good a party’s case may be he can decide to forgo an appeal. So if he decides to press forward then he must respect all the rules made in that regard. What has to be considered is the reason why he failed to fulfil the conditions of appeal and not the merits of his appeal. So the fact that the appeal has a good chance of succeeding is of no consequence. I reject the contrary argument of counsel accordingly. I agree with counsel for the respondent that the applicant’s failure to fulfil the conditions of appeal was deliberate and inexcusable.

At this stage I refer to the useful authority cited to us by counsel for the respondent, namely New India Assurance Co Ltd v Manang [1968] GLR 538, CA. There among others, the delay in fulfilling the conditions of appeal was caused by the solicitor’s typist’s mistake and counsel’s own negligence. The court declined an invitation to it to extend time to fulfil the conditions of appeal not even when it was argued that very important principles of law were involved. This is what the court, per Akufo-Addo CJ said at page 540:

“We are being invited to exercise our discretion to grant an extension of time not only because of the typist’s initial mistake but also because a very important principle of law is involved in the case which requires to be pronounced upon. This court of course welcomes every opportunity offered it to pronounce upon important principles of law, but the opportunity comes only when those who are responsible for bringing to the court matters involving important principles of law act with diligence and promptness that the rules of court require. We do appreciate the attraction that is paraded before us to engage ourselves in delving into the intricacies of the law, but we cannot yield to that attraction without committing what in our view would be grave injustice.”

The court rightly in my view did not allow the merits of the appeal to influence it. Has the applicant or his counsel acted with diligence? Does the applicant have any reasonable excuse for not fulfilling the conditions of appeal? Does he have any reasonable excuse in not applying for extension of time to do so? Does his lawyer have any legally justifiable excuse for not attending court when the matter came up to be dismissed? The answer to each of these questions is clearly no. And following this it will be plainly unjust to allow the applicant to revive this matter. In the premises I would dismiss the application with costs.