Practice and Procedure - Appeal - Enlargement of time - Appeal from Court of Appeal to Supreme Court - Application for enlargement of time to fulfil conditions of appeal made over two years after dismissal of appeal - Whether illiteracy and ill-health of applicants sufficient explanation for delay - Whether delay inordinate.

The Court of Appeal gave judgment on 28 August 1988 between the parties and the defendants appealed. Even though counsel for both parties attended the settlement of record, by 13 November 1989 the conditions of appeal had not been fulfilled and the appeal was dismissed. Nearly two and half years thereafter, the appellants brought an application for an order to re-list their appeal and for extension of time to fulfil the conditions. In support of the application they attributed their default to the fact that they were illiterate and that their counsel omitted to inform them of the conditions and also the protracted indisposition of the 1st defendant-appellant.

Held - (1) The appellants’ plea of illiteracy was no excuse, as was the alleged ill-health of the 1st defendant-appellant of which proof was lacking. The delay of almost two years and three months in bringing the application was too long and the grounds or excuses could not justify the long delay. Besides the appellants were not candid with the court in their explanation for the delay. Ratnam v Cumarasamy [1965] 1 WLR 8, Revici v Prentice Hall Incorporated [1969] 1 WLR 157, CA, cited.

Cases referred to:

Ratnam v Cumarasamy [1965] 1 WLR 8, [1964] 3 All ER 999, 108 Sol Jo 1028, PC, Digest Cont Vol B 211.

Revici v Prentice Hall Incorporated [1969] 1 WLR 157, [1969] 1 All ER 772, 112 Sol Jo 1021, CA, Digest Cont C 1098.

APPLICATION for re-listment of appeal and extension of time.

WUAKU JSC. This is an application by the defendants pursuant to CI 13 rule 9(3) and (4) praying for an order re-listing or restoring to the list their appeal which was dismissed on the 13th day of November 1989, and also asking for extension of time within which to fulfil the conditions of appeal imposed on them. The judgment of the Court of Appeal is dated 28/7/88. In a supporting affidavit to the application, the lst defendant for himself and on behalf of the other two defendants had deposed that immediately after the Appeal Court gave judgment against them, they instructed their lawyer, one Mr J Ofori to lodge an appeal on their behalf.

The affidavit evidence shows that the said Mr J Ofori, as well as the respondent, and his counsel attended the settlement of record. By 13 November 1989, the conditions of appeal imposed had not been complied with resulting in the dismissal of the appeal.

Giving their reasons for the non-compliance, the applicants allege that they are illiterates, and that their lawyer never informed them of the conditions which were imposed, and moreover the lst defendant was for a long time indisposed.

The respondent has deposed to an affidavit denying the applicants’ allegations of fact. He deposed that two weeks after the appeal was dismissed, he went to the Registrar to obtain a copy of the order dismissing the appeal and met counsel for the applicants who had also come for the same purpose. He complained that he was not aware that the matter was before the court.

Both the applicants and the respondent have made strong allegations against lawyer Ofori which in our view need a response from him. More importantly, we are of the view that the applicants’ plea of illiteracy is no excuse, and so is the alleged ill-health of the lst defendant, the proof of which is lacking. The applicants did not state when they became aware of the dismissal of the appeal. We think that the applicants are not candid enough with the court in their explanation of the two years three months delay in bringing the application.

In Ratnam v Cumarasamy [1965] 1 WLR 8 at 12, PC, the applicant was four days out of time in fulfilling conditions of appeal and the Privy Council held:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unlimited right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for litigation.”

And in another case, Revici v Prentice Hall Incorporated [1969] 1 WLR 157 at 159, CA, Lord Denning said:

 “Nowadays we regard time very differently from the way they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to rules as to time.”

We are of the view that the delay of almost two and half years in bringing this application is too long and also the grounds or excuse given cannot justify the long delay. No good and sufficient cause has been shown, we are therefore constrained to dismiss the application, which is accordingly dismissed.

(sgd) AMUA-SEKYI JSC.

(sgd) OSEI-HWERE JSC.

(sgd) BAMFORD-ADDO JSC.

(sgd) HAYFRON-BENJAMIN JSC.

Application dismissed.

Michael Jojo Acquah, Legal Practitioner.