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Practice and procedure – Court
of Appeal – Special leave to
appeal – Party losing appeal to
High Court – Whether time limit
for special leave to appeal to
Court of Appeal – Courts
(Amendment) Law 1987 (PNDCL 191)
s 10(3)(b) – Court of Appeal
Rules 1962 (LI 218) r 9(1).
The defendants lost their appeal
to the High Court against the
judgment of the district court
and applied for the special
leave of the High Court to
appeal to the Court of Appeal.
The High Court judge declined
the application because it was
filed after the expiry of the
fourteen days time limit imposed
under the Court of Appeal Rules
1962 (LI 218) rule 9(1) for
leave to appeal from the
decision of the High Court to
the Court of Appeal. The
defendants then applied to the
Court of Appeal for leave to
appeal under the Courts
(Amendment) Law 1987 (PNDCL 191)
s 10(3)(b). That section
provided for appeal by special
leave to the Court of Appeal
against the dismissal of an
appeal by the High Court from a
lower court but contained no
time limit for the application
for leave to appeal to the Court
of Appeal.
Held:
LI 218 was continued in force by
section 114(2) and the 4th
Schedule of the Courts Act 1972
(Act 372) and ought to apply.
The jurisdiction of the Court of
Appeal to entertain an
application for special leave
was conditioned upon the refusal
of such application by the court
below. The application in the
High Court having been filed
outside the fourteen days time
limit imposed under rule 9(1) of
LI 218, the applicant could not
be said in law to have applied
to the High Court for special
leave. The application would
therefore be declined. Khoury
v Mitchual [1989-90] 2 GLR
256, SC referred to.
Case referred to:
Khoury v Mitchual
[1989-90] 2 GLR 256, CA.
FORSTER JA.
The applicants, as defendants in
the District Magistrate Grade I
Court, Takoradi, lost in an
action instituted by the
respondent-company for damages.
The applicants’ appeal to the
High Court Sekondi was dismissed
on 17 January 1992. Aggrieved by
that judgment, on 20 May 1992
the applicants sought special
leave of the High Court to
appeal to the Court of Appeal
pursuant to section 10(3) of the
Courts Act 1971 (Act 372) as
amended by the Courts
(Amendment) Law, 1987 (PNDCL
191) section 10(3)(b) which
provides that:
“…where a decision of the High
Court confirms the decision
appealed against from a lower
court, an appeal from the High
Court may lie to the Court of
Appeal with the leave of the
High Court which may on its own
motion or on an oral application
by the aggrieved party decide
whether or not to grant leave to
appeal, and where the High Court
refuses to grant the leave to
appeal the aggrieved party may
apply to the Court of Appeal for
such leave.”
Refusing the application, the
learned High Court judge said:
“From the Court of Appeal Rules
1962 (LI 218) rule 9(1) the
applicants ought to have applied
for leave to appeal within 14
days from the 17 January 1992,
the date of the judgment of the
High Court. This means the
application for leave is being
made more than four months after
the judgment against which leave
to appeal is being brought.”
Rule 9(1) of LI 218 indeed
requires of an applicant who
intends to apply for special
leave to do so “within fourteen
days from the date of the
decision against which leave to
appeal is sought.” Counsel for
the applicant contended with
remarkable vim that in as much
as section 10(3) of Act 372 did
not prescribe any period within
which an applicant for leave may
apply, he is unfettered in time.
By his submission, the limit is
eternity or doomsday. Counsel
further argued that rule 9(1) of
LI 218 did not prescribe a time
limit for the application, where
no such provision was made in
section 3(b) of the Courts Act
1971 (Act 372). In his view
therefore rule 9(1) of LI 218
being a provision of a
subsidiary legislation, which in
fact it is, cannot modify
section 3(a) of Act 372 by
prescribing a limitation period
for an application for leave to
appeal.
The Court of Appeal Rules 1962
(LI 218) is indeed a subsidiary
legislation enacted pursuant to
powers conferred under section
87 of the Courts Act 1960 (CA 9)
and continued in force by
section 114(2) and the 4th
Schedule of the Courts Act 1971
(Act 372). LI 218 is therefore a
provision of the enabling Act,
Act 372. Except where a rule of
LI 218 is in conflict with Act
372 or is in excess of the
enabling powers conferred by the
Act, it is intra vires the Act
and should apply. Rule 9(1) of
LI 218 is therefore valid and
its provisions must apply. As
the High Court found, the
application having been made on
20 May 1992, about four months
after the decision delivered on
17 January 1992 it was
incompetent. The delay was not
only inordinate; it violated the
mandatory requirement of rule
9(1) of LI 218.
The jurisdiction of this court
to consider an application for
special leave is conditioned
upon a refusal of the court
below to grant such application.
It cannot be said that there was
in law any application before
the High Court since the
purported application was
incompetent, not having been
made within the statutory limit
of fourteen days; a condition
precedent to a valid and
competent application for
special leave. This procedural
default not having been remedied
by an application to the court
below to enlarge time, the
instant application cannot
succeed. As was observed by the
Supreme Court in considering an
application in similar
circumstances under the rules of
that court in the case of
Khoury v Mitchual [1989-90]
2 GLR 256:
“To entertain that application
was to ignore the applicants’
default in the court below, and
sub-silentio import into the
proceedings in the court below
an extension of time in favour
of the applicants, an extension
of time they never sought and
let alone considered and
granted.”
In the result, the application
is without merit and it is
accordingly dismissed.
AMUAH JA.
(signed)
ARYEETEY J.
(signed)
Application dismissed.
S Kwami Tetteh, Legal
Practitioner |
