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Practice and procedure – Appeal
– Extension of time – Applicant
granted leave by Court of Appeal
on oral application to appeal
against its split decision to
Supreme Court – Applicant
delaying until appeal lapses –
Applicant re-applying to Court
of Appeal for extension of time
to appeal Application disclosing
no substantial grounds of appeal
– Whether Court of Appeal has
power to extend time within
which to appeal – Whether court
may exercise its discretion to
grant application – Supreme
Court Rules 1979 (CI 13) r 8.
The applicant company was
granted leave by the Court of
Appeal to appeal against its
decision but failed to lodge the
appeal within three months as
required by the rules of court.
The applicant then applied to
the Court of Appeal for
extension of time to appeal and
explained that it was delayed in
obtaining a certified true copy
of the judgment to enable it
file a meaningful notice of
appeal.
Held:
The Court of Appeal had power
under rule 8(4) of CI 13 to
extend the time within which to
appeal even where it had
previously granted leave to
appeal provided the application
for extension was not made after
the expiration of three months
from the expiration of the time
prescribed for appeal.
Republic v Circuit Court Judge,
Tamale, ex parte Volta Senior
Game Warden [1984-86] 2 GLR
372, SC cited.
(2) Though the applicant had
not, in compliance with the
mandatory requirement of r
8(5)(c) of CI 13, disclosed any
substantial ground of appeal,
the court would pay regard to
the fact that the decision in
issue was a split decision and
that the trial court readily
granted leave to appeal upon the
oral application of the
applicant, made soon after the
delivery of the judgment. In the
peculiar circumstances of the
case, the application would be
granted.
Cases referred to:
Hungarotex Foreign Trading Co v
Boateng
[1987-88] 1 GLR 205, SC.
Republic v Circuit Court Judge,
Tamale, ex parte Volta Senior
Game Warden
[1984-86] 2 GLR 372, SC.
APPLICATION for extension of
time to appeal to the Supreme
Court.
Nutifafa Kuenyehia (with
him Nutsukpui) for the
applicants.
No appearance by or for the
respondents.
ADJABENG JA.
The applicants applied for
extension of time to appeal to
the Supreme Court against the
judgment of the Court of Appeal
dated 11 July 1991 dismissing
the applicant’s appeal by a
majority decision that confirmed
the decision of the High Court
which had dismissed the
applicants' claim against the
respondents. Counsel for the
applicants applied orally at the
delivery of the judgment in the
Court of Appeal under section
3(2) of the Courts (Amendment)
Law 1987 (PNDCL 191) for leave
to appeal to the Supreme Court
and the Court of Appeal granted
leave.
Under the Supreme Court Rules
1970 (CI 13) rule 8(1)(b), the
appeal ought to have been lodged
within 3 months. The applicants
failed to lodge their appeal
within the three-month period.
It therefore prays in this
application for extension of
time to lodge the appeal.
The main reason why it failed to
lodge the appeal within the
specified period, according to
their affidavit in support of
the application, is that it
could not secure the certified
true copy of the judgment of the
court even though it had applied
for it.
The point that seriously engaged
my attention during the hearing
of this application was whether,
having obtained leave under
PNDCL 191 to appeal against the
decision of this court, and
having failed to file the appeal
within time, the applicants were
still entitled to an extension
of the period within which to
appeal.
Counsel for the applicants
contended that since leave to
appeal had been granted, the
normal rules of court would
apply and that under rule 8 of
Supreme Court Rules 1970 (CI
13), this court has power to
extend the time. It must be
observed that the
defendants-respondents did not
appear at the hearing of the
application nor had they filed
an affidavit in opposition even
though they had been served with
the application.
I agree with the applicants’
counsel that this court has
power to extend the time for
appealing; but the application
for the extension should not be
made after the expiration of
three months from the expiration
of the period prescribed for
appealing against a final
decision, as in the present
case. See rule 8(4) of CI 13. In
other words, provided the
application for extension is
filed within six months from the
date of a final decision of the
court, the Court of Appeal has
power to extend the time. In
Republic v Circuit Court Judge,
Tamale, ex parte Volta Senior
Game Warden [1984-86] 2 GLR
372 particularly holding 4 at
page 374, the Supreme Court held
as follows:
“(4) Rule 8(4) of CI 13
completely extinguished a
person's right to apply for an
extension of time, after a grace
period of three months. LI 218
contained a similar ban under
its rule 10 (5) implying that
notwithstanding the wording of
rule 10 (6) of LI 218, no
application could lawfully be
entertained after six months in
the case of a final decision. In
the instant case, the judgment
sought to be appealed against
was given on 4 November 1985 and
the six months' deadline expired
on 3 May 1986. Since the
applicants’ motion was filed on
20 May 1986, i.e. seventeen days
outside the permissible period,
the Supreme Court had no
jurisdiction under CI 13, r 8
(4) to entertain the
application.”
See also Hungarotex Foreign
Trading Co v Boateng
[1987-88] 1 GLR 205, SC.
In the application before us,
the judgment which the
applicants wish to appeal
against was delivered on 11 July
1991. The application for
extension of time was filed on
14 November 1991, four months
and two days after the said
judgment. This clearly being
within the permissible period of
six months, we have power or
jurisdiction to extend the
period. But have the applicants
satisfied rule 8 (5) of CI 13?
This sub-rule provides that:
“An application for the
extension of time within which
to lodge an appeal shall be
supported by an affidavit,
(a) stating that leave has been
granted where necessary, and the
date of the leave;
(b) setting forth good and
substantial reasons for the
application; and
(c) giving the grounds of appeal
which, prima facie, show
good cause that the appeal is of
substance.”
I have no doubt that the
applicants have satisfied the
conditions set out in (a) and
(b) of rule 8 (5) supra. There
is evidence that the applicants
were granted leave on 11 July
1991, the very date the judgment
was delivered, to appeal against
it. The applicants have also
deposed that they could not
secure a certified true copy of
the judgment to enable them file
meaningful grounds of appeal. I
think, however, that they have
not been able to satisfy the
third condition stated in the
said sub-rule 5, namely that
they should give the grounds of
appeal which, prima facie, show
good cause that the appeal is of
substance. The applicants have
only deposed in their affidavit,
paragraphs 14 and 15, that they
believe that the chances of the
appeal succeeding are very
bright, and that “the case
raises several important issues
of law and it is ultimately in
the public interest that the
Supreme Court should have the
opportunity to pronounce on the
very important issues raised by
the appeal.”
No doubt, the applicants were
mandatorily required to satisfy
the third condition in rule
8(5)(c). Having regard, however,
to the fact that the decision
against which they intend to
appeal was a split decision of 2
to 1, and the fact that leave to
appeal against that decision was
readily granted by the court on
an oral application made
immediately after the delivery
of the judgment, I think that in
the interest of justice the
applicants should not be denied
the opportunity to appeal. In
the peculiar circumstances of
this case, therefore, I would
grant the application.
AMUAH JA.
I agree.
AMMAH JA.
I agree.
Application for extension of
time granted.
Kizito Beyuo, Legal Practitioner |
