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Practice-Appeals-Enlargement of time-Whether an order enlarging time is appealable-Court of Appeal Ordinance, c. 35 of 1957, s. 3 (1) and (3).

An applicant, seeking an order of certiorari from a Divisional Court, found himself out of time and therefore first asked the Divisional Court for an order enlarging the time in which to make his application. An order enlarging time was granted and from this the opposers sought to appeal. Before the Court of Appeal the applicant (referred to in the ruling as the respondent) took the preliminary point that the Court of Appeal had no jurisdiction to entertain the appeal.

II eld, (i) the matter before a court granting an enlargement is simply an application for enlargement; this is independent of the matter for which the enlargement is sought, which is not yet before the court. The order made is therefore a final order on the matter before the court: it is not an interlocutory order or decision from which an appeal will lie, with leave, under the Court of Appeal Ordinance, c. 35 of 1957, s. 3 (3).

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The West African Law Reports

(ii) An order enlarging time is merely an order permitting the person applying for it to take certain steps in the future, if he so wishes. Not until those steps are taken, if ever they are, can any " claim or question respecting money, goods and other property or any civil right or other matter" for which the order was granted come before the courts. An order enlarging time therefore, although it is final, is not a "final judgment or decision" appealable under the Court of Appeal Ordinance, c. 35 of 1957, s. 3 (1).

[EDITORIAL NOTE. The Court of Appeal Ordinance, s. 3, is identical in its provisions with the now repealed West African Court of Appeal Ordinance, c. 5 of 1951, s. 3.]

Cases referred to :

(1) R. v. Ashford (Kent) Justices, ex parte Bichley [1955] 2 An E.R. 327. (2) R. v . Jackson (1956) West African Court of Appeal, unreported.

ApPEAL by leave of the judge from an order of Windsor-Aubrey J., on May 24, 1957, in the Divisional Court, Eastern Judicial Division, enlarging the time in which an application might be made to the court for an order of certiorari. Before the Court of Appeal the applicant raised the preliminary issue of jurisdiction.

E. O. Asafu-Adjaye and Akufo-Addo for the appellants. Lynes for the respondent.

The following ruling of the court was given by GRANVILLE SHARP J.A.: This is an appeal from a ruling of Windsor-Aubrey J., dated May 24, 1957, by which, on an application by Edmund Geoffrey Dako and others, he enlarged the time in favour of the applicants in which to apply for a writ of certiorari to quash a District :Magistrate's order for the sale of certain houses on which rates had not been paid. It is necessary, as learned counsel for the appellants before us has based an argument upon it, to advert to the fact that in the execution of the Magistrate's order a sale of the houses here in question took place, but in the present state of affairs the completion of this sale is in abeyance.

'rhe only question before the court which has been argued was raised by a notice of the respond en t dated October 19, 1957, that he intended to raise a preliminary objection "that this court has no jurisdiction to entertain the appeal and that no appeal lies."

Having heard counsel for the respondent and the appellants on the objection so raised, and having given full consideration to the matter, we have come to the conclusion that the objection must be upheld.

By common consent of counsel on both sides the question is to be decided upon consideration of the statutory provisions within whose ambit it falls, namely, the provisions of the Court of Appeal Ordinance, s. 3. Both counsel agreed that subsection (2) of the section does not

apply and argument has therefore been confined to the effect upon the matter of subsections (1) and (3). These are as follows:

" An appeal shall lie to the Court of Appeal ... (1) from all final judgments and decisions given in respect of a claim exceeding the sum of one hundred pounds or determining directly or indirectly a claim or question respecting money, goods and other property or any civil right or other matter above the amount or value of one hundred pounds; ... (3) by special leave of the court making the order, but not otherwise, from all interlocutory orders and decisions made in the course of any suit or matter before a Divisional Court."

Counsel for the respondent argued at first that the order appealed from was not an order "in the course of a suit or matter." He, however, later withdrew this contention and contented himself with the simple contention that the order in question was not an interlocutory order within the meaning of the section inasmuch as there were no proceedings at the time on foot in connection with which it could be said to be " interlocutory," it being an independent and separate matter of an application for enlargement of time.

Counsel for the appellants at first sought to traverse this contention. He did not, however, seriously press the point, although not expressly abandoning it. He held it in reserve.

\Ve hold that the argument of respondent's counsel must be accepted.

The appellants' counsel then argued that the further contention of the respondent that the order could not fall within the ambit of section 3 (1) because it was not an order in a civil matter which directly or indirectly affected property upon which any value could be placed was erroneous. He submitted that the order "indirectly" affected the right of the appellants to the property purchased by them in the course of the execution of the Magistrate's order for sale, and that it was in defence of this property right that the appellants appeared when the application for enlargement of time was made.

'1'he court cannot accept this argument.

In the case of R. v. Ashford (lient) Justices, ex parte Riehley (1),

Lord Goddard C.J., in delivering judgment, said:

" an applicant for extension of the time limited by the Rules of the Supreme Court, Ord. 59, r. 4 (2), must give notice to the person who in the ordinary way would be made respondent to the motion in order that he may be heard,"

and here follow the important words which contradict the view argued by the appellants' counsel-

" on the question whether or not it is a fit case in which to extend time."

Furthermore the order for enlargement of time was an order merely permitting the respondent to take a certain procedure in futuro and not until such steps are taken by the respondent, if ever they are, can any question affecting the appellants' rights to property arise.

It follows from these considerations that we hold that the order appealed from does not fall within the ambit of the Court of Appeal Ordinance, s. 3, at all, and that this court has no jurisdiction to entertain the appeal, which fails in limine.

\Ve should add that a question closely similar to the present came before the West African Court of Appeal in R. v. Jackson (2). An applicant for leave to apply for an order of prohibition had been refused and appealed to the West African Court of Appeal, which dismissed the appeal. Dr. Danquah, on behalf of the aggrieved party, then applied on November 1, 1956, to the West African Court of Appeal for leave to appeal to the Privy Council but at the hearing abandoned his application, as the notes on the case indicate:

" in view of the discovery that the substantive appeal does not lie in view of the proviso to the West African Court of Appeal Ordinance, c. 5 of 1951, s. 3."