Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN AND MILLS-ODOI JJSC AND APALOO J
JUDGMENT OF APALOO J
On 8 January 1963, the High Court, Accra, made absolute, a decree nisi which it granted in favour of the petitioner-respondent dissolving the latter’s marriage with the applicant. The husband who is the present applicant, seeks by this motion, enlargement of time to file an appeal against the said decree on the ground that the High Court had no jurisdiction to entertain the petition and that therefore the proceedings and decree were a nullity.
To succeed in this application, it seems to me that the applicant must surmount two legal hurdles, firstly, he must show that this court has power to grant this motion and secondly, he must satisfy this court that in all the circumstances, it is a proper case to grant an enlargement of time. That the appeal is wholly out of time is not in dispute. Counsel for the applicant however submits that this court has power to enlarge the time and points to rule 10 (1) of the Supreme Court Rules, 1962,1 (hereinafter called the new rules) as authority for his contention. The undoubted power of this court to enlarge time seems ex facie to be limited by subrule (4) of rule 10 which provides, in so far as material, as follows: [His Lordship here read the provisions as set out in the headnote and continued.] This being a final decree, the period of appeal
expired on 8 April 1963 and if as counsel for the respondent contends, this limitation applies to this court, the application for enlargement of time should have been lodged not later than 8 May 1963. It was lodged on 15 June 1963, and puts the applicant entirely out of court.
Counsel for the applicant however contended that this limitation applies only to the High Court and not to this court. He based his contention, if I understood him aright, on the ground that subrule (4) provides that “Any such application shall be made to the court below whose decision shall be final.” He argues that “any such application” can only mean application brought within a period of one month from the time limited for bringing appeals. He submits that an application such as the present, brought after the expiration of the one month is properly cognisable by this court, otherwise the power of this court to enlarge the time granted by rule 10(1) cannot be exercised since application brought within the one month can only be made to the court below by the mandatory provision of the subrule.
Contrariwise, counsel for the respondent submitted that the limitation imposed by subrule (4) of rule 10 applies not only to the court below but also to this court. He contends, so I understand him, that there is nothing in the language of the subrule which limits its applicability to the High Court. He relies on the ruling of this court in the suit entitled Banson v. Abbey.2 In that case, an appellant applied to this court for extension of time to execute the bond for costs on appeal and also for stay of execution. At the hearing, the application for stay of execution was abandoned and this court declined to grant the application holding that the application ought to have been made to the court below. I do not find it possible to extract the ratio decidendi of that ruling. Although the court reproduced subrule (4) of rule 11 of the Supreme Court (Court of Appeal) Rules, 1957,3 which is the statutory predecessor of the rule in question, it made no pronouncement on it. In any event, the court was then not concerned with the problem with which we are confronted, namely, whether the limitation imposed by subrule (4) of rule 10 applies to this court. Accordingly, in my judgment, that ruling sheds no light on the question we are asked to decide.
For myself, I have been much attracted by the argument put up on behalf of the applicant. The one solid point against it, is that if it is accepted, it gives this court, so to speak, a carte blanche to enlarge time to appeal at any time. The object of limiting the time within which an appeal should be brought is, I apprehend, to make it impossible for an aggrieved person who went to sleep after an adverse judgment against himself to complain and to disturb his opponent with a stale grievance. This, I think, accords with the maxim vigilantibus et non dormientibus jura subveniunt. But the tendency of modern legislation is to give the courts wide discretion to do justice in appropriate cases unhampered by rules. Although the legislature may have considered that the court below should be restricted as to when the discretion of enlarging time may be exercised, it may well have thought that no good purpose would be served in imposing similar restriction on this court, where the application must of necessity be considered by no less than three minds. The greatest safeguard against the allowance of stale appeals, is the collective good sense of this court. Accordingly, although this court must be slow in coming to a conclusion, that parliament can have intended to give it carte blanche to enlarge time for appeals, it should not be deterred from so holding, if a true and proper construction of the rules makes this reasonably clear. If the submission of counsel for the respondent is right, then the power given to this court by rule 10 (1) becomes otiose. This is because all applications made within the one month and after the expiration of the statutory period must per force of subrule (4) be made to the court below whose decision, the subrule says, shall be final. Unless I am constrained by authority, I cannot bring myself to hold that parliament can have intended to give power to this court with one hand and take it with the other. In this connection, it does not seem to be without significance that this particular subrule is differently worded from subrule (4) of rule 11 of the Supreme Court (Court of Appeal) Rules, 1957,4 (hereinafter called the old rules) which it has replaced. Under that subrule, an application for extension of time made within the one month can be made either to this court or to the court below save that where it is made to the court below in the first instance, its decision shall be final. The subrule therefore makes provision for the exercise of the power of enlargement of time which subrule (1) of rule 11 of the old rules and subrule (1) of rule 10 of the present rules confer on this court.
Accordingly, it seems to me that either the obvious difference in the old and new rules is merely an inelegant piece of drafting without any intention to effect a change in the law or is a conscious effort to free this court from the restriction imposed by subrule (4) of rule 11 of the old rules or subrule (4) of rule 10 of the new. I prefer the latter view of the matter. I conclude therefore that on a true and proper construction of subrule (4) of rule 10 of the new rules, an application made to this court after the expiration of four months from the date of a final judgment, is not barred by subrule (4) of rule 10 of the new rules and that this court is properly seised of that application and can, in a fit case, exercise the power of enlargement of time granted it by subrule (1) of rule 10 of the new rules.
That brings me to the question, whether in all the circumstances of this case, this is a fit case to grant enlargement of time. The ground on which the applicant seeks to impeach the judgment of the High Court is based on total want of jurisdiction of that court to entertain the petition. The reason for this, according to the applicant’s affidavit, is that the parties are domiciled in England. The respondent has not sought to dispute this. The basis of the common law jurisdiction to dissolve a marriage is domicile and that is the law which by virtue of section 66 (3) (a) of the Courts Act, 1960,5 ought to be applied in this country. It being admitted that the parties are not domiciled in this country, there would appear to be good ground for holding that the High Court of Ghana had no jurisdiction to entertain the petition. The respondent
however says that the jurisdiction of the court below in this particular case was founded on residence based on legislation in England and that the English courts will recognise a divorce granted in this country on that basis. Whether that view is right or not, it is not necessary to express an opinion just now. It seems, however, that the applicant has a serious question of law for submission to this court and I would, on that account, be inclined to grant enlargement of time to appeal.
Counsel for the respondent however contends that this application ought not to be granted because the applicant was professionally represented in the court below and submits that the point of jurisdiction must have been considered and in any event, ought to have been taken in the High Court. He caused to be transmitted to us the English cases of Everitt v. Everitt,6 Meier v. Meier,7 Edwards v. Edwards,8 and Hurlstone v. Hurlstone.9 Save the case of Edwards v. Edwards, all the three other cases are decisions of the Court of Appeal in England. The principle deducible from those decisions is that the Court of Appeal will not grant an extension of time to appeal to a spouse who had had time and opportunity to appeal against a decree nisi unless good reasons were shown. This seems to be the interpretation which the court put on the powers granted to it by section 31 (1) (c) of the Judicature (Consolidation) Act, 1925.10 The
power of this court to entertain this appeal is derived from section 8 of the Courts Act, 1960, and it would seem that in this country, the right of appeal to this court arises only after the pronouncement of the final decree. Save that those cases establish that the right of enlarging time to appeal should not be granted unless good reasons were shown, they do not appear to me to be apposite.
The reason given by the applicant for this motion is that he has only recently been advised that the High Court, Accra, had no jurisdiction to entertain the petition. That fact has not been contradicted. It follows therefore that his counsel did not put him au fait of the legal position until shortly before he made his affidavit on 10 June 1963.
To refuse this motion on the ground that his counsel ought to have advised him earlier, would be to visit the sin of a lawyer on a lay client. That, in my judgment would not be right. No injustice as far as I can see, would be done to the respondent by the allowance of this motion, while the grant of it, would enable a serious point of law and one which affects the status of the parties to be finally settled.
I would accordingly grant the motion and enlarge the time within which an appeal to this court may be brought.
DECISION
Application granted.
N.A.Y.
