Division: IN THE HIGH COURT, ACCRA
Date: 28 SEPTEMBER 1964
Before: ARCHER J
JUDGMENT OF ARCHER J
On 10 August 1964 I dismissed an application by the judgment-debtor in this case for a review of decision of 13 July 1964 disallowing the judgment-debtor’s application for stay of execution. The application for review was filed on 31 July 1964 and in view of the time limit laid down by Order 39, r. 8 (3) of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 I decided that I was not competent to entertain the application as it was made more than fourteen days after the order of 13 July 1964 had been made. Learned counsel sought to rely on Order 64, r. 6 which gives the court or a judge power to enlarge time but I pointed out to him that the opening words of rule 6 of Order 64 excluded Order 39 from the ambit of the discretion conferred on the court by rule 6 of Order 64. I shall now attempt to convince learned counsel with the reasons for my decision.
Order 39, r. 8 (3) reads:
“Applications for review under this order shall be made within 14 days from the date on which the judgment or order in respect of which review is sought was entered or made . . . “
Order 64, r. 6 reads:
“6. Subject to any provisions to the contrary in these Rules a Court or a Judge shall have power to enlarge or abridge the time appointed by these rules; or fixed by an order enlarging time for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. Provided that when the time for delivering any pleading or document or filing any affidavit, answer or document or doing any act is or has been fixed or limited by any of these Rules or by any direction on or under the summons for directions or by any order of the Court or a Judge the costs of any application to extend such time and of any order made thereon shall be borne by the party making such application unless the Court or a Judge shall otherwise order.”
In my ruling in the earlier case of Macas v. Laham2 I decided that Order 39 was in a category by itself and that Order 64, r. 6 did not confer on the court power to enlarge the periods stipulated in rule 8 (3) of Order 39 in view of the words, “subject to any provisions to the contrary in these Rules” which are the opening words of Order 64 and although the equivalent rule in the White Book, i.e. Order 64, r. 7 is couched in similar terms, the opening words in the Ghana rule 6 are absent from the English rule 7. I also remarked in my earlier ruling that in the case of R. v. Akiwumi and Bannerman; Ex parte Dako3 Windsor-Aubrey J. expressed the view that he was not bound by the decision of Sir Arku Korsah C.J. in the case of Atsiavishie v. Tsili4 in which the Chief Justice had ruled as follows:
“In my view Order 39, rule 8, sub-rule (3) limits the powers of this court to grant extention of time for review . . . therefore Order 64, rule 6 cannot operate to revive the court’s power to extend time.”
In the case of R. v. Akiwumi and Bannerman; Ex parte Dako (supra) Windsor-Aubrey J. was dealing with alternative applications for the writs of mandamus or certiorari under Order 59, r. 3, whereas the case of Atsiavishie v. Tsili (supra) was an application for review and whatever Korsah C.J. ruled in the latter case had no relevance to the application before Windsor-Aubrey J. The remark by Windsor-Aubrey J. that he was not bound by the ruling of Korsah C.J. was therefore obiter dictum and cannot be relied on as an authority for the proposition that the court has power to enlarge time for an application for review by virtue of Order 64, r. 6. Order 59, r. 3 is in identical terms with the English Supreme Court Rules, Order 59, r. 4 (2) and the English courts had ruled that the court has power under Order 64, r. 7 to enlarge time for an application made under Order 59. In Ghana, the Supreme Court has also ruled following the
English decisions that the High Court has power under Order 64, r. 6 to enlarge time appointed for making applications under Order 59. See (1) Eku alias Condua III v. Kojo Acquaah5 and (2) State v. Asantehene’s Divisional Court B1; Ex parte Kusada.6 There is at present no Supreme Court decision with regard to the effect of rule 6 of Order 64 on rule 8 (3) of Order 39. I have therefore decided to follow the ruling of Korsah C.J. (although he did not give reasons) in the Atsiavishie case.
The following are my reasons:
First of all Order 39 was imported from the Uganda Civil Procedure Rules of 1928, Order 42, based on section 80 of Part III of the Uganda Civil Procedure Ordinance, 1928,7 which was substantially a reproduction of the Indian Code of Civil Procedure of 1908.
Section 80 of the Uganda Ordinance reads:
“Any person considering himself aggrieved . . . (a) by a decree or order from which an appeal is allowed by this Ordinance, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Ordinance, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”
It will be noted that there is no time limit laid down by this section of the Uganda Ordinance for making such application for review. Order 42 of the Uganda Civil Procedure Rules made, by virtue of section 81 of the Uganda Civil Procedure Ordinance, 1928, also provides:
“1. (1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of
such appeal is common to the applicant and the appellant, or when being respondent, he can
present to the Appellate Court the case on which he applies for the review . . .
2. An application for review of a decree or order of a Court, upon some ground other than the
discovery of such new and important matter or evidence as is referred to in Rule 1, or the
existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall
be made only to the Judge who passed the decree or made the order sought to be reviewed.
3. (1) Where it appears to the Court that there is not sufficient ground for a review, it shall dismiss the application.
(2) Where the court is of opinion that the application for review should be granted, it shall grant the same:
Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.
4. Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or other to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges or the Court shall hear the same.
5. (1) Where the application for a review is heard by more than one Judge and the Court is equally divided the application shall be dismissed.
(2) Where there is a majority, the decision shall be according to the opinion of the majority.
6. When an application for review is granted, a note thereof shall be made in the register, and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.
7. No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.
8. Applications under this order shall be by motion with notice.”
It is also noticeable from the whole of the Uganda Order 42 which I have read, that there is no time limit for making such applications.
Order 45, r. 5 of the Uganda Civil Procedure Rules also provides: “5. Where a limited time has been fixed in these rules or by an order of the Court under these rules for doing any act or taking any proceedings, the Court shall upon application have power to enlarge such time upon such terms (if any) as the justice of the case may require and such enlargement may be ordered although the application for the same is not made until after the expiration of such limited time.”
As I have already stated there is no time limit laid down for applications for review under Order 42 of the Uganda Rules and therefore the power of the court to enlarge time under Order 45 of the Uganda Rules cannot have any relevance so far as applications for review are concerned.
Reverting to the Ghana Rules, the question may now be asked: why has Order 39 of the Ghana Rules stipulated time for making applications for review? The answer is obvious and it can be found in rule 2 of Order 39 which reads, “An application for review of a Judgment or order of a Court or Judge shall be made only to the Judge who gave the judgment or made the order sought to be reviewed.” It follows therefore that if the judge who gave the decision is not available for any reason to hear the application, the review cannot take place. It is therefore of paramount importance that such applications should be made with expedition. The same is the effect of rule 2 of Order 42 of the Uganda Rules.
Rule 4 of Order 39 of the Ghana Rules also provides that an application for review shall be heard by the judge or the judges or any of them (constituting the court) who passed the decree or made the order, provided that such judge or judges continue to be attached to the court at the time of making the application and such judge is not or such judges are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers. The wording of the Ghana rule 4 of Order 37 is an unadulterated plagiarism of rule 4 of Order 42 of the Uganda Rules.
One would have thought that (1) the hearing of the application within six months following the
application and (2) the availability of the same judge or judges who made the order or passed the decree are sufficient restrictions on all applications for review. Thus the Uganda Rules Committee perhaps did not think it necessary to impose defined and restricted periods within which applications for review should be filed. However in Ghana specific periods are laid down.
Secondly, I think the periods in rule 8 subrule (3) of Order 39 of the Ghana Rules were to ensure that such applications are heard if possible by the judge or judges who made the order or delivered judgment. In the Colonial days, when expatriate judges predominantly occupied the seats on the bench this limitation was necessary as those expatriate judges were members of the British Colonial Legal Service and were liable to be transferred from one Colonial territory to another and on their retirement, they retired to their homes abroad. It was therefore necessary that these applications should be made as soon as possible to enable these roving expatriate judges to consider them before their departure. It may be argued that there are no longer in Ghana any of these expatriate judges but I think the essential requirement that the judge or the judges who gave the decision must consider the application remains and this requirement applies in its full vigour and rigour to the national colour of the present membership of the High Court in Ghana.
Thirdly, reviews must be distinguished from appeals. Reviews in the High Court must be undertaken by the same judge or judges, whereas appeals lie to a higher court and it is an established rule of practice that the panel of judges in the appellate court should not consist of any judge against whose decision the appeal has been lodged. The power of review by the Supreme Court in exceptional cases was only recently introduced by the present rule 33 of the Supreme Court Rules, 1962.8 There are no prescribed periods for making applications. Indeed the relevant rule is silent whether a formal application by an aggrieved party should be made at all or whether the court on its motion can review the decision. Moreover there is no provision in the rule that the same panel of judges should hear the application for review. The Supreme Court has yet to pronounce the principles under which its power of review will be exercised.
It seems to me therefore that the reasons I have already mentioned are responsible for the periods laid down in subrule (3) of rule 8 of Order 39. Throughout the Ghana Civil Procedure Rules of 1954, Orders 39 and 54, r. 14 appear to be the only foreign rules apart from the English Supreme Court Rules which form the bulk of the Ghana Rules and it is therefore not unreasonable to hold that the opening words of Order 64, r. 6 refer to no Order other than Order 39 and it is also safe to conclude that the High Court has no power under Order 64, r. 6 to enlarge any of the periods laid in the provision of Order 39.
It is unfortunate that the draftsman and the Rules Committee did not consider it necessary and safe for the avoidance of doubt to refer specifically in express terms to Order 39 in the opening words of rule 6 of Order 64. The present confusion however should not absolve the court from its primary duty of interpreting and construing legislation. The profundity of our ignorance of many unreported decisions on Order 9 64, r. 6 vis à vis Order 39 is only equalled by the height of our hopes that past decisions will be reported in future for the benefit of all and that the Supreme Court will in the near future have the opportunity of pronouncing its opinion on the matter. It is obvious that only the Supreme Court can resolve the present uncertainty.
Another absurd result if the court had power to enlarge time appointed under Order 39 would be that, an aggrieved party who did not wish to appeal and who did not apply for stay of execution would be at liberty to apply for review long after execution has taken place. It seems to me that there must be finality to a judgment. One agrees with Lord Atkin in Ras Behari Lal v. The King9 when he said, “Finality is a good thing but justice is better.” However one would also agree with Horace when he said, “Pale death knocks with impartial feet at poor men’s huts and king’s castles” and one would also add that judges are not excluded from the visitations of death’s impartial feet. In this nuclear age of uncertainty, it is necessary that delays should be cut to the minimum and so far as Order 39 is concerned one would modify Lord Atkins dictum and say: Justice is good but finality is not only desirable but also necessary.
DECISION
Application refused.
N. A. Y.
