BANSON v. ABBEY
[SUPREME COURT, ACCRA]
DATE: 2ND APRIL, 1962
COUNSEL
S. Baidoo for the appellant.
R. S. Blay for the defendant.
JUDGMENT OF KORSAH, C.J.
Korsah, C.J. delivered the judgment of the court. In this appeal an important question of procedure,
relating to conditions of appeal which may be imposed by the registrar of the court below has been
raised by counsel for the respondent in support of his contention in a preliminary objection on the
following grounds:
“(1) That the appeal is not properly before the court in that the court below had no power to grant an
extension of time within which to fulfil the time imposed by the registrar of the court below under
Rule 14 of the Supreme Court (Court of Appeal) Rules, 1957.
(2) Because the court below was wrong in holding that appeals to the Court of Appeal or Supreme
Court, were governed by the Supreme Court (Civil Procedure) Rules, 1954, particularly Order 64
of the said Rules”.
The history of this appeal may be briefly stated: judgment was delivered by the High Court, Sekondi,
on 23rd June, 1960, in favour of plaintiff. The defendant being dissatisfied with the said judgment,
filed notice of appeal, on the 18th July, 1960, in the registry of the court below together with the
grounds of appeal as required by the Supreme Court (Court of Appeal) Rules, 1957, made in exercise
of the powers conferred upon the Rules Committee by section 119 of the Courts Ordinance.1(1) By
virtue of rule 11 (3) of the said Rules “An appeal shall be deemed to have been brought when the
notice of appeal has been filed in the Registry of the Court below”, so that to all intents and purposes
this appeal must be deemed to have been brought on the 18th July, 1960, one month and five days after the judgment was delivered. Rule 11 (1) reads:
“Subject to any law for the time being in force no appeal shall be brought after the expiration of fourteen
days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal
against a final decision, unless the Court below or the Court shall enlarge the time.”
It will be noticed, however, that the instant appeal had already been brought on the 18th July, 1960,
which is within the statutory period so that the next step in the appeal was to be taken by the registrar
of the court, who shall cause notice thereof to be served on each of the parties mentioned as provided
by rule 12. He shall also, summon the parties before him to settle the documents and any other matter
which forms part of the record to be included in the record, etc. In the course of settling the record the
registrar and parties shall endeavour to exclude from the record documents that are not relevant to the
subject-matter of the appeal and generally to reduce the bulk of the record as far as practicable with
the view to reducing costs. It is further provided by rule 13 (4):
“The appellant shall within such time as the Registrar of the Court below directs, deposit with him a sum
fixed to cover the estimated expense of making up and forwarding the record of appeal calculated at the
full cost of one copy for the appellant and one-quarter cost for each of the three copies for the use of the
Court .”
It is therefore obvious that it is by virtue of rule 13 that the registrar is required to impose what is
generally known as the conditions of appeal.
Thereafter rule 14 requires:
“The appellant shall within such time as the Registrar shall fix, deposit such sum as shall be determined
by such Registrar or give security therefor by bond with one or more sureties as such Registrar may
direct for the due prosecution of the appeal and for the payment of any costs which may be ordered to be
paid by the appellant.
It would appear that it was on the 8th October, 1960, that the registrar imposed the following
conditions:(1) to deposit £G30 against preparation of appeal record; (2) to enter into bond in the sum
of £G50 with sureties; and (3) conditions to be fulfilled within a month. The appellant paid the
deposit of £G30 the same day, and says he was under the erroneous impression that in due course he
would be called upon to execute the bond; but it was not until the 3rd December, 1960, when he
called at the registry to enquire why the appeal record had not been forwarded to Accra, that he was
informed that he had failed to execute the bond for costs which should have been executed on or
before the 8th November, 1960. He applied to this court for extension of time to execute the bond and
by a ruling delivered on the 23rd December, 1960,2(2) the court expressed the view that the
application should be made to the court below. Thereafter upon an application made by the appellant,
the High Court at Sekondi granted the extension by virtue of which the bond was duly executed thus
enabling the appellant to comply with the conditions imposed by the registrar.
In support of the preliminary objection, counsel for the respondent has referred to the concluding
passage of the learned judge’s order when granting the extension. He said, “In exercise of the powers
conferred on me by rule 6 of Order 64 of the Rules of Court, 1964 I grant an extension of time 7
(seven) days within which the applicant may execute the bond”.
In our view the objection is not well founded, because failure to execute the bond within the time
limit fixed by the registrar is not a breach of a statutory provision which cannot be cured by extension,
but merely a breach of a procedural rule which the court, in exercise of its discretion, may rectify: see
Kojo Pon v. Atta Fua3(3) and Fugah and Others v. Tamakloe and Another.4(4) It is further contended
that there is no provision in the rules enabling the registrar to extend the time. This omission in our
view does not preclude the registrar from granting extension when necessary. Relying on the
provisions of the Interpretation Act, 1960,5(5) section 10 (2), “Where an enactment confers power, or
imposes a duty, to do any act or thing all such powers shall be deemed to be also given as are
reasonably necessary to enable that act or thing to be done or are incidental to the doing thereof.” If
the registrar can grant extension, a fortiori the court must be deemed, in the exercise of its inherent
jurisdiction to have the powers which its officers have in matters concerning which the rules of procedure require the registrar to perform duties relating to appeals.
We, however, agree with counsel that the learned judge erred when he purported to grant the
extension, in exercise of powers conferred on him by rule 6 of Order 64 of the Rules of Court, 1954.
The rules of court to which the learned judge referred apply only in cases pending in the High Court,
and not during the transitional period after judgment when notice of appeal has been lodged; from that
time onward the rules applicable are the Supreme Court (Court of Appeal) Rules, 1957.
Consequently, the court below was by virtue of its inherent powers justified in granting the extension
within which the appellant was enabled to execute the bond and thus perfect the appeal.
For these reasons we overruled the objection and ordered that the appeal should be heard on its merits.
The facts briefly stated are that by an agreement made on the 17th July, 1957, between the
plaintiff-respondent, hereinafter referred to as the respondent of the one part, and the
defendant-appellant hereinafter referred to as the appellant on the other part, the appellant agreed to
erect and build for the respondent, a dwelling-house in accordance with specifications therein
contained for the sum of £G2,400; the method of payment of the said sum is stated in the agreement
thus:
“(a) Advances by the following terms:-
No deposit should be paid.
(b) Payment should be made by the 1st Party according to the progress of the work.
(c) £G150 (one hundred and fifty pounds) to be paid after the repairs.
£G300 (three hundred pounds) to be paid after ground floor concrete.
£G220 (two hundred and twenty pounds) to be paid after completion of ground floor.
£G600 (six hundred pounds) to be paid after completion of doors and window lintels on second floor. £G200 (two hundred pounds) to be paid after the completion of the top concrete on the second floor.
£G330 (three hundred and thirty pounds) to be paid after the completion of all fittings, paintings, etc. £400 (four hundred pounds) retention money should be reserved and paid after fully completed and found satisfactory.”
On the 11th September, 1958, the solicitor for the respondent wrote to the appellant that:
“unless the work on the second floor of his (respondent’s) building, house No. 48 situate at John Sarbah
Road, Takoradi, is completed before the 30th October, 1958, he (Respondent) will be compelled to
institute proceedings against you (appellant) for breach of contract and that without further notice.”
It will be observed that the contract which the parties entered into did not fix a date by which the work
should be completed. It must, therefore, be assumed that the parties agreed that it should be completed
within a reasonable time from the commencement of the work provided the various payments at the
stated periods were made regularly as and when demanded, evidence of which should have been
adduced at the trial.
The respondent without waiting for the one month fixed in the letter to expire entered upon the
premises with his labourers and drove away the workmen of the appellant on the 1st October, 1958,
and thereafter undertook and completed the buildings with his own workmen, in spite of the protest of
the appellant whose solicitor wrote on the 14th October, 1958, to the respondent’s solicitor.
At the time the respondent assumed responsibility for the completion, he had paid the sum of £G2,360
to the appellant for the work, but the respondent by his writ, claimed £G870 14s. 6d. alleged to have
been money which he spent after taking over the work and which he seeks to recover from the
appellant for breach of contract.
In the statement of defence filed the appellant denied he committed breach of contract, and said no time limit was fixed for completion of the work. He further alleged that he had building material
worth £G350 in the premises when respondent and his labourers entered on the premises and drove
away his workmen from the place. In these circumstances the respondent as plaintiff was bound to
prove all the allegations upon which his claim was based.
It was therefore essential for the respondent to adduce evidence on the question of what would be
reasonable time for the completion of the work in accordance with the specifications and other
conditions; this however he failed to do. By the respondent’s letter he gave the appellant time up to
the 30th October, 1958 to complete the work, but in fact it is not disputed that he entered the building
site with his workmen on the 1st October, 1958, and assumed control of the work with his own
labourers and other workmen. This conduct of the respondent, can at least be described as an
unwarranted interference with the defendant’s right to complete the contract within a reasonable time.
We are unable to agree with the finding of the learned judge of the court below thus, “I hold that the
defendant did not finish the work within reasonable time although he had all he required to be paid
him under clause 4 (b) and (c) of exhibit A.”
In the absence of evidence to prove what was reasonable time within which the work should or could
have been completed, and also the fact that respondent had by his letter fixed the 30th October, 1958,
we are clearly of the opinion that the learned judge of the court below was not justified in the
conclusion he reached on the facts. We therefore allow the appeal.
DECISION
Appeal allowed.
