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Courts – Appeal – Leave – Time –
Appellant losing appeal in High
Court and Court of Appeal –
Application for leave to appeal
to Supreme Court to be filed
within fourteen days of Court of
Appeal decision – Supreme Court
Rules 1970 (CI 13) r 7(1) –
Court of Appeal Rules 1962 (LI
218) r 9 (1) – 1969
Constitution, art 105 (1)(c) –
Courts (Amendment) Law 1987 (PNDCL
191) ss 2, 3(3).
Held:
a party who lost an appeal to
the High Court and the Court of
Appeal ought to seek leave to
appeal to the Supreme Court
within fourteen days of the
decision of the Court of Appeal.
Hammond v Odoi [1972] 2
GLR 459, CA, Darbah v Ampah
[1989-90] 2 GLR 103, SC,
Republic v High Court, Kumasi,
ex parte Khoury [1991] 2 GLR
393, SC, Revici v Prentice
Hall Incorporated [1969] 1
WLR 157 CA referred to.
Cases referred to:
Darbah v Ampah
[1989-90] 2 GLR 103, SC.
Hammond v Odoi
[1972] 2 GLR 459, CA.
Republic v High Court, Kumasi,
ex parte Khoury
[1991] 2 GLR 393, SC.
Revici v Prentice Hall
Incorporated
[1969] 1 WLR 157, [1969] 1 All
ER 772, 112 Sol Jo 1021, CA.
APPLICATION for leave to appeal
from the decision of the Court
of Appeal to the Supreme Court.
Bortey Lamptey
for the applicant.
Quansah
(with him Patrick Baiden)
for the respondents.
ADJABENG JA.
The plaintiffs-respondents took
action by originating summons in
the High Court, Accra, for the
determination of certain
questions. The court determined
the questions in favour of the
respondents. The
defendant-applicant, being
dissatisfied with the decision
of the High Court appealed to
this court. This court, on 20
February 1992 dismissed the
defendant-applicant’s appeal and
confirmed the decision of the
High Court. The applicant, if
desirous of appealing against
the decision of this court,
would, by the provisions of the
Courts (Amendment) Law 1987
(PNDCL 191), require leave to do
so, having lost twice. She
could, when the judgment of this
court was pronounced,
immediately have applied orally
for leave under section 3(2) of
the Courts Act 1971 (Act 372),
as amended by section 1 of PNDCL
191. But she did not do so. On
19 May 1992 however, almost
three months after the delivery
of the Court of Appeal decision,
she filed the application now
before us praying for leave to
appeal against the decision of
this court.
At the hearing of the
application counsel for the
respondents raised a preliminary
objection to the application.
His contention was that the
application was incompetent, as
it had not been filed within 14
days from the date of the
judgment against which the leave
to appeal was being sought.
Counsel relied on PNDCL 191 and
rule 9 (1) of LI 218, the Court
of Appeal Rules 1962.
Counsel for the applicant
replied that PNDCL 191 under
which the application was
brought never mentioned “special
leave” as in rule 9 (1) of LI
218 where it is provided
specifically that an application
for special leave ought to be
brought within 14 days. Counsel
therefore contended that rule 9
(1) of LI 218 was irrelevant or
inapplicable to this
application. In counsel’s view,
no time limit has been set for
an application for leave to
appeal under PNDCL 191. Both
counsel cited no authority.
It is true that no time limit
has been mentioned in section 3
(2) of the Courts Act 1971 (Act
372), as amended by section 1 of
PNDCL 191, within which an
application for leave to appeal
can be brought where the
applicant has lost twice in the
matter. This section deals with
such applications in respect of
appeals from the Court of Appeal
to the Supreme Court. Section
19(3)(b) of the Courts Act 1971
(Act 372) as amended by section
2 of PNDCL 191 deals with
applications for leave to appeal
from the High Court to the Court
of Appeal.
It is true therefore, that rule
9(1) of LI 218 which deals with
special leave in respect of
appeals from the High Court to
the Court of Appeal is not
applicable to the present
application for leave to appeal
from the Court of Appeal to the
Supreme Court. That is not to
say, however, that no provision
exists for such applications. I
think that the relevant or
applicable rule can be found in
the Supreme Court Rules, 1970
(CI 13).
Rule 7(1) of the Rules provides
as follows:
“An application for leave to
appeal pursuant to the
provisions of paragraph (c) of
clause (1) of article 105 of the
Constitution shall be by motion
on notice in the Form 2 set out
in the First Schedule to these
Rules which shall be filed with
the Registrar of the court below
within fourteen days of the date
of the decision against which
leave to appeal is sought.”
The constitution referred to is
the 1969 Constitution. Article
105 (1)(c) referred to in the
above rule provides as follows:
“105(1) An appeal shall lie from
a judgment, decree or order of
the Court of Appeal to the
Supreme Court,
(c) with the leave of the Court
of Appeal, in any other cause or
matter, civil or criminal, where
the Court of Appeal is satisfied
that the case involves a
substantial question of law or
is of public importance.”
This constitutional provision
has been re-enacted in section
3(3) of the Courts Act 1971 (Act
372) as amended by section 1 of
PNDCL 191. The amended section
provides as follows:
“An appeal shall lie from a
judgment, decree or order of the
Court of Appeal to the Supreme
Court with the leave of the
Court of Appeal in any other
cause or matter, whether civil
or criminal where the Court of
Appeal is satisfied that the
case involves a substantial
question of law or is of public
importance.”
In Hammond v Odoi [1972]
2 GLR 459, CA counsel for the
respondents in an application
for leave to appeal, similar to
the application before us,
raised an objection to the
application. His contention,
like the contention of counsel
for the respondents in the
present application, was that:
“the motion for the
pre-requisite order for leave
was improperly before the court,
it having been filed later than
fourteen days of the date of the
decision as prescribed by rule
7(1) of the Rules of Supreme
Court, 1970 (CI 13).” The court
was of the view that such a
submission “was not only
invulnerable, but also
unanswerable.”
Even though rule 7(1) of CI 13
refers specifically to the
provision in the 1969
Constitution which has been
re-enacted in PNDCL 191, as
explained above, that is, in
section 3(3) of Act 372 as
amended by section 1 of PNDCL
191, since this section, and
section 3(2) of Act 372 as
amended under which this
application has been brought,
both require that leave to
appeal should be sought, it
seems logical that the
law-making authority intended
nothing other than that the
procedure prescribed in rule
7(1) should also apply to
section 3(2) of Act 372 as
amended. In other words, rule
7(1) provides that the
application should be brought
within 14 days from the date of
the judgment or decision against
which leave to appeal is sought
because the applicant lost twice
in the action. Indeed, that
seems to be the position adopted
by our courts. For example, the
Supreme Court impliedly accepted
that position in Darbah v
Ampah [1989-90] 2 GLR 103,
where the plaintiff-applicant,
having lost twice in the action
and having failed to seek leave
within 14 days, applied to the
Supreme Court six months later
to have the judgment of the
Court of Appeal quashed by an
order of certiorari. The
application was refused.
Section 10(3)(b) of Act 372 as
amended by section 2 of PNDCL
191 (the provision which
requires a party who appeals to
the Court of Appeal from a
decision of a High Court
confirming a decision of a lower
court) is clear. The application
for leave to appeal in such a
situation should be brought
within 14 days from the date of
the decision against which leave
to appeal is sought. This is
specifically provided for in
rule 9 (1) of the Court of
Appeal Rules, 1962 (LI 218). As
was observed earlier in this
ruling, counsel for the
respondents based his objection
on this rule. The Supreme Court
made pronouncements on this rule
9(1) of LI 218, and section
10(3) of Act 372 as amended by
section 2 of PNDCL 191.
Delivering his opinion in
Republic v High Court, Kumasi,
ex parte Khoury [1991] 2 GLR
393, SC, Francois JSC observed
as follows at page 398:
“An appeal against that judgment
was dismissed by the High Court,
Kumasi on 22 June 1990. With two
reverses, the appellant was
required to obtain leave before
any further appeal process could
be embarked upon: see Courts
(Amendment) Law, 1987 (PNDCL
191) sections 2(3)(b) amending
section 10(3) of the Courts Act,
1971 (Act 372). The appellant
had fourteen days under section
9(1) of the Court of Appeal
Rules, 1962 (LI 218) to apply.
He failed to do so within the
statutory period.”
In his opinion, Wiredu JSC also
had this to say on the matter at
page 400:
“Under the provisions of section
2(b) of the Courts (Amendment)
Law, 1987 (PNDCL 191), the
respondent needed the leave of
either the High Court or the
Court of Appeal having lost
twice in the case.
Under rule 9(1) of the Court of
Appeal Rules, 1962 (LI 218), the
respondent was to have asked for
leave in the High Court within
fourteen days from 22 June 1990
when the High Court dismissed
his appeal¼The
respondent did not do so.”
At page 403 of the report,
Wiredu JSC said further:
“With the above in view, I think
any attempt on the part of any
court to entertain any
application of the type under
consideration (i.e. after a
party has lost twice) where the
losing party did not seem to
respect limits imposed by the
law, would be defeating the
intended purpose of the
legislature. Courts are enjoined
to insist on time being observed
strictly: see Revici v
Prentice Hall Inc [1969] 1
WLR 157 at 159, CA.”
It must be observed that even
though PNDCL 191, section 2, on
which the above case was decided
does not mention “special leave”
as has been done in rule 9 (1)
of LI 218, yet the Supreme Court
in the said case held that the
application for leave to appeal
to the Court of Appeal should
have been brought within 14 days
as is provided for in the said
rule 9 (1) of LI 218. How then
can one argue that because
mention is made in PNDCL 191 of
“special leave” it means that no
time limit has been set for such
an application? That seems to be
the reply of the applicant’s
counsel to the objection.
I think that on the law as spelt
out in rule 7(1) of CI 13 the
Supreme Court Rules 1970,
explained earlier in this
ruling, and on the decided
authorities, the applicant’s
application should have been
filed within 14 days after 20
February 1992, when the Court of
Appeal dismissed her appeal.
Having failed to do so, the
application is not properly
before the court as it was filed
out of time. Consequently the
preliminary objection raised
succeeds. I would dismiss the
application.
ESSIEM JA.
I agree.
LUTTERODT JA.
I also agree.
Application dismissed
S Kwami Tetteh, Legal
Practitioner |
