COURT OF APPEAL (FULL BENCH)
DATE: 27 FEBRUARY 1967
BEFORE: AKUFO-ADDO C.J., OLLENNU, APALOO, LASSEY
AND AMISSAH JJ.A,
CASES REFERRED TO
(1) Nye v. Nye [1964] G.L.R. 95, S.C.
(2) Loga v. Davordzi [1966] G.L.R. 530, S.C.
(3) Young v. Bristol Aeroplane Co., Ltd. [1944] K.B. 718; [1944] 2 All E.R. 293; 113 L.J.K.B. 513;
171 L.T. 113; 60 T.L.R.536; 88 S.J. 332, C-A,
(4) Berkeley v. Papadoyannis [1954] 2 Q.B. 149; [1954] 3 W.L.R. 23; 98 S.J. 390; [1954] 2 All E.R.
409, C.A.
(5) A. v. Hanson (1821) 4 B & Ald. 519; 106 E.R. 1027.
(6) A. v. Stock (1838) 8 Ad. & El. 405; 112 E.R. 892.
(7) Wood v. Riley (1867) L.R. 3 C.P. 26; 37 L.J.C.P. 24; 17 L.T. 216; 16 W.R. 146.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION by the respondent to an appeal by the appellant against the granting of a decree absolute in favour of the respondent who had originally petitioned for divorce. The objection concerned the jurisdiction of the court which enlarged the time in which the appellant was allowed to bring this appeal and which was reported as Nye v. Nye [1964] G.L.R. 95, S.C.
COUNSEL
J. B. Quashie-Idun for the appellant.
K. Narayan for the respondent.
JUDGMENT OF AKUFO-ADDO C.J.
(In what follows a reference to “the court” or to “this court” shall where the context requires be read to include a reference to the predecessor of the existing Court of Appeal.) This is an appeal with a history, and it arises out of a matrimonial cause determined by the High Court, Accra, in 1963. On a petition filed by the wife (respondent in the present appeal) the High Court, Accra, on 8 January 1963 pronounced a decree absolute for the dissolution of her marriage with the appellant. An appeal from the decree absolute being a final judgment must according to our rules be brought within three months of the date of judgment unless an enlargement of time is granted under the provisions of rules 10 (1) and 10 (4) of the Supreme Court Rules, 1962 (L.I. 218).
On 15 June 1963 the appellant applied to this court for an enlargement of time under rule 10 (4) aforesaid to enable him to bring[p.78] of [1967] GLR 76 an appeal against the pronouncement of the decree absolute, the main ground of his intended appeal being that the High Court had no jurisdiction to determine the matter (the parties were British nationals resident in Ghana at the time of the presentation of the petition). It is clear that the application for the enlargement of time was made after the expiry of one month after the expiry of the three months limited by the rules for bringing the appeal more than four months from the date of the decree), and the question that fell for determination on the hearing of the application was whether the court had jurisdiction to entertain such an application. An objection to the hearing of the application was made by the respondent’s counsel on the ground that rule 10 (4) did not vest jurisdiction in the court, or in any other court, to entertain an application for enlargement of time made later than four months from the date of the judgment.
The decision of the court (Nye v. Nye [1964] G.L.R. 95, S.C. per Apaloo J., as he then was) was, however, in favour of exercising jurisdiction, the court holding at p. 98: “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.”
(The new rules being the Supreme Court Rules, 1962.) The decision was clearly an epoch-making one for there was, until then, no record in the history of appeals in our courts of any claim by the Court of Appeal to unlimited jurisdiction in allowing appeals to be brought at any time after judgment, that is at an indefinite time after the expiry of the various periods limited for that purpose by the rules.
Obviously inspired by this decision, another application in similar circumstances was later made to this court in the case of Loga v. Davordzi [1966] G.L.R. 530, S.C. for an enlargement of time in which to bring an appeal after the expiry of four months from the date of judgment. The court (Sarkodee-Adoo C.J., Azu Crabbe and Ollennu JJ.S.C.’ ) refused the application holding, per Ollennu J.S.C. (Azu Crabbe J.S.C. dissenting on the interpretation of the rules but concurring in the refusal only on the merits of the application) that it could not consider itself bound to follow the decision in Nye v. Nye (,supra) on the ground that the said decision was made per incuriam and holding further that on a true construction of the rules this court, and indeed any other court, had no
[p.79] of [1967] GLR 76
jurisdiction to enlarge the time in which to appeal after the expiry of four months from the date of the judgment.
The appellant in the instant appeal had, meanwhile in pursuance of the order enlarging time made in his favour, perfected his appeal, and before the appeal came on for hearing the respondent gave notice to the appellant of her intention to raise an objection in limine to the hearing of the appeal on the ground that the court had no jurisdiction to entertain the appeal inasmuch as the appeal was hopelessly out of time, and further that the purported enlargement for want of jurisdiction. In the said notice she contended in effect that the court must reject that decision as a precedent to be followed, because the said decision was made per incuriam. She also stated her intention to rely, inter alia, on the decision in Loga v. Davordzi (supra).
The position therefore was that this court had on its hands two conflicting decisions on the same subject, the later of them alleging that the earlier was given per incuriam and did not therefore qualify as a precedent to be followed. In consultation, therefore, with my brother judges of the Court of Appeal and following the practice of the English Court of Appeal in the cases of Young v. Bristol Aeroplane Co., Ltd. [1944] K.B. 718, C.A. and Berkeley v. Papadoyannis [1954] 3 W.L.R. 23 at p. 24 C.A., I directed that theappeal be heard by a full bench. The appeal thus came before us on 16 February 1967, and after hearing argument of counsel we adjourned as curia advisari vult. The relevant rules for consideration are those contained in rule 10 (1) and (4) of the Supreme Court Rules, 1962, and they are in the following terms:
“10. (1) Subject to any enactment 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 …
(4) No application for enlargement of time in which to appeal shall be made after the expiration of one month from the expiration of the time prescribed within which an appeal may be brought.
Every such application shall be supported by an affidavit setting forth good and substantial reasons for the application and by grounds of appeal which prima facie show good cause for leave to be granted. Any such application shall be made to the Court below whose decision shall be final; and when time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.
[p.80] of [1967] GLR 76
It is perhaps necessary to state briefly the contending versions of the construction of these rules as put forward by counsel. It happened that counsel in this appeal were the same counsel as argued the application for enlargement of time and as was to be expected, the arguments advanced were a reiteration of those advanced previously, strengthened naturally by the views of the court as expressed in the two conflicting decisions already referred to.
For the enlargement it was argued that since rule 10 (1) gave to both the court below and the appeal court the power to enlarge time of appeal any interpretation of rule 10 (4) which operated as a total ban on enlargement of time by the appeal court would make nonsense of the right in the Court of Appeal to enlarge the time. Rule 10 (4) read as a whole, so the argument went, could only apply to enlargement of time by the court below, thus leaving the power of the Court of Appeal untouched. This latter contention derived its substance from the two last sentences of rule 10 (4); which counsel and all who had had anything to do with this matter agreed, could only refer to an application made within the period of the one month’s grace provided, counsel submitted, that if rule 10 (4) had stopped at the end of the opening sentence there would have been no doubt that a total ban was intended. But since the rule went on thereafter to restrict an application for enlargement made within the period of the one month’s grace to the court below and excluded the Court of Appeal from entertaining any such application the latter court was, to paraphrase the words of Apaloo J. (as he then was) in the decision enlarging time for this appeal, by a “conscious effort” of the legislation freed “from the restrictions imposed by subrule (4),” meaning the restrictions imposed by the opening sentence of rule 10 (4). Apaloo J. went on to say at p. 98:
“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.”
Against the enlargement the argument was that the power to enlarge time granted by rule 10 (1) was not absolute, and that it was “Subject to any enactment for the time being in force . . . “ and one such enactment was rule 10 (4) which placed a ban on enlargement of time after four months from the date of judgment. Since both the court below and the Court of Appeal were by rule 10 (1) endowed[p.81] of [1967] GLR 76 with the power of enlargement, a ban on enlargement, so went the argument, was a ban on both the Court of Appeal and the court below. To this argument the advocates of enlargement retorted that this would mean that the legislature gave to the appeal court power to enlarge time with one hand and took it away with the other, and such an act should not be imputed to the legislature.
Speaking for myself, I have had no difficulty at all in accepting the argument against enlargement. It was argued, and indeed it was held by Ollennu J.S.C. in Loga v. Davordzi (supra), that the prohibition in rule 10 (4) did not completely take away the power vested in the Court of Appeal by rule 10 (1), for an application for enlargement of time could be made before the expiry of the times limited by rule 10(1) in anticipation of the inability to bring an appeal in time, and that the Court of Appeal could still deal with such an application by the operation of rule 28. The argument is sound in theory but, as has been rightly said, such an application although possible is highly improbable, and to this extent, therefore, it may be said that in practice the legislature has given with one hand and taken away with the other. And if this is the irresistible conclusion that can be drawn from the language of the enactment, as I think it is in the instant case, then one can do no more than regret that so august an institution as the legislature should permit itself the perpetration of so mean an act. Should there be any lingering doubt as to the effect of rule 10 (4) the following dictum of Ollennu J.S.C. in the Loga case at p. 553 based on an accepted rule of interpretation, should serve, in my view, to dispel the last vestige of any such doubt: “In any event, the intention of the legislature in subrule (4), i.e. absolute prohibition, is repugnant to a presumed intention in the earlier subrule, i.e. subrule (1), to give the court unlimited jurisdiction to enlarge time. Borrowing the words of Keating J. in Wood v. Riley ((1867) L.R. 3 C.P. 26 at p. 27), I say that ‘if the two [sub] sections are repugnant, the known rule is that the last must prevail’.” While I hold that the construction placed on the rules under consideration by the court, per Ollennu J.S.C., in Loga v. Davordzi is the correct one, I am unable to accept as tenable the view expressed in that decision that the decision in the application for enlargement of time, in this appeal was given per incuriam. In this respect I can do no better than refer to the views expressed by Azu Crabbe J.S.C. in his dissenting judgment in Loga v. Davordzi at pp. 548-549 and with which, if I may say so with respect, I am in total agreement:
“The final question is whether a decision is to be held to have been given per incuriam merely on the ground that instead of
[p.82] of [1967] GLR 76
quoting the section of a statute and making a pronouncement on it the court has merely discussed the section.
In the first place, I must say, with the greatest respect, that when Apaloo J. observed in Nye v. Nye (at p. 98) that: ‘. . . on a true and proper construction of subrule (4) of rule 10 of the new rules, an application made toBthis 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, he was not merely discussing the two subrules under consideration, but was laying down what he conceived to be the law. But even assuming for the purpose of argument that Nye v. Nye merely discusses rule 10 (4), can it be said that that decision was given per incuriam? I think not. A previous decision is regarded to have been given per incuriam if the decision must have been different had the court been referred to a particular statue or statutory rule or some authority decisive of the issue. In Morelle Ltd. v. Wakeling ([1955] 2 Q.B. 379 at p. 406), the Court of Appeal in England was asked to consider the meaning of the words ‘per incuriam’, and Evershed M.R., who read the judgment of the court, said: ‘As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance orforgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.’ In the present case it has not been shown that in Nye v. Nye any statutory provision or binding authority was overlooked. Indeed, Nye v. Nye dealt specifically with subrules (1) and (4) Which we are here asked to construe, and no argument has been advanced to persuade me that any part of that decision or a step in the reasoning on which it was based is faulty. Accordingly, I differ that Nye v. Nye was decided per incuriam.” To the extent therefore that the decision in Loga v. Davordzi declares the decision in the Nye v. Nye application to be one given per incuriam, that decision is wholly wrong. The acceptable conclusions in the decision in Loga v. Davordzi are more easily justified on the ground of jurisdiction.a
It must be appreciated that there is no inherent right of appeal, in a litigant; nor indeed is there an inherent power in any court to
[p.83] of [1967] GLR 76
hear appeals. Both the right and the power are creatures of statute, and unless the enactment creating the right of appeal and the power to hear an appeal is explicit, clear and unambiguous in its language, no such right and no such power can ever materialise. When however the right and the power do materialise they are exercisable only within the framework of the conditions imposed for their exercise.
In his judgment in Loga v. Davordzi to which I have made reference, Azu Crabbe J.S.C. at p. 542 expressed the view, and rightly if I may say so, that “In construing statutes, it is sometimes useful to look at earlier Acts and to find out the state of the law prior to the Act which is being construed.” And he proceeded, with his usual analytical diligence, to review, in his own words, “the history of legislation in this country upon the powers of the courts with regard to limitation of time for appeals.” Unfortunately the most important lesson, indeed the only relevant lesson, that that history teaches did not appear to have engaged his attention. That lesson is that at no time in the history of legislation regulating appeals in this country has the legislature expressed a desire or an intention to grant to the courts, even the highest in this country, an unlimited and unqualified power over appeals with, that is, no regard to limitations of time in which to bring appeals. The policy of the legislature has been rigidly consistent in controlling appeals by the imposition of a strict time-limit.
In the decision in the application for enlargement herein Apaloo J. (as he then was) made the following statement at p. 98:
“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 would appear from this statement that in 1962 the legislature thought that the time had come to depart from its established policy and grant to the highest court in the land power to hear appeals unfettered by any considerations of limitation of time. This, of course, would be inaugurating a new era in the history of appeals, and if that was the case then we must agree that the legislature made a very bad job of the enactment that was to usher in this new era. Neither the choice nor the arrangement of words in the relevant rules suggests even in a remote sort of way that the legislature in 1962 had any such intention.
For such an innovation one would naturally expect the legislature to use plain and unambiguous words and not to leave so important an historical step to implications and [p.84] of [1967] GLR 76inferences. The law is well established that a right of appeal cannot be, implied but must be given by express words: see R. v. Hanson (1821) 4 B. & Ad. 519 at P. 521 and R. v. Stock (1838) 8 Ad. & El. 405. A case, I think, can be made for the desirability of the highest court in the land being possessed of wider powers than the lower courts in the matter of appeals to enable it to do justice in hard and deserving cases, but the court cannot by inference arrogate such powers to itself. They must be conferred expressly by legislation, and I can find nothing in the words of the rules under consideration that confer such powers.
It follows therefore that the order enlarging time in which to appeal made by Apaloo J. (as he, then was) in Nye v. Nye (supra) was without jurisdiction and therefore wrong. It follows further that this appeal is not properly before us, and I would therefore dismiss it for want of jurisdiction.I would like to state as a postscript to this judgment that the unsatisfactory state of the rules, at any rate in the drafting thereof, exposed by this appeal calls for a restatement of the rules in clearer language, and steps will be taken to that end.
JUDGMENT OF OLLENNU J.A.
I agree.
JUDGMENT OF LASSEY J.A.
I also agree.
JUDGMENT OF APALOO J.A.
I have had the advantage of reading beforehand the ruling which the learned Chief Justice has just read and in which my brother Ollennu has concurred. The Chief Justice has brought to the interpretation of these rules a mind wholly uninfluenced by what happened before and as he expressed himself as feeling no difficulty in accepting the argument against enlargement, I think the interpretation which this court put on these rules on 29 February 1964 in Nye v. Nye (1964) G.L.R. 95, S.C. must be wrong. I do not therefore wish to cling to a view of these rules which my learned and more experienced brothers have unequivocally rejected. I therefore propose, subject to some reservations, to concur in the conclusion at which the Chief Justice has arrived. The history of this matter and the arguments pro and con enlargement have been set out by the learned Chief Justice in a characteristic felicity of language and no purpose would be served in restating them. Although I am the wiser after reading and familiarizing myself with the reasoning of the Chief Justice, I am less certain that the doubts which beset me at an earlier consideration of this matter have been completely dispelled. As now interpreted, an intending appellant
[p.85] of [1967] GLR 76
who for reasons good or bad fails to file his notice of appeal in the High Court within a period of three months from the date of a final judgment, is forever barred from seeking the aid of this court. He could only do so if he was not in fact out of time and after the High Court has refused to sanction, so to speak, his delinquency in advance. That would be after he has applied to the High Court before the expiration ofthe three months and had informed that court that he would be unable to file his notice of appeal ‘within time. If his application was not acceded to by the High Court and if he was still within the period of three months, he could then and only then take advantage of the cumulative effect of rules 10 (1) and 28 and repeat that application to this court. That any genuine intending appellant would do this instead of takingthe much easier course of lodging his notice of appeal in the High Court, strikes me as extremely improbable. That would, to my way of thinking, be a strange proceeding.
On this account, I feel some hesitation in subscribing to an interpretation of these rules which implies that it is only by this somewhat strange proceeding that some sense can be made out of the power conferred on this court by rule 10 (1). The upshot of this would seem to be that a man who is genuinely out of time is less favourably treated than a person who asks, as it were, to be licensed ante factum to commit a breach of the rules. The learned Chief Justice considers that this is at least, theoretically possible and is therefore the more acceptable of the two interpretations. So be it. But it appears to me, that a rule on whose interpretation no fewer than four judges united in error must be a pitfall for the unwary and cannot be but a nadir of the draftsman’s pen. The reason why it is suggested that no doubts should now linger about the correctness of the later Loga interpretation, is what is said to be the accepted rule of interpretation put forward by my brother Ollennu at p. 553 that “In any event, the intention of the legislature in subrule (4), i.e. absolute prohibition, is repugnant to a presumed intention in the earlier subrule, i.e. subrule (1), to give the court unlimited jurisdiction to enlarge time.” It is difficult to conceive the power conferred on this court in subrule (1) as
“presumed intention.” I should think it is express intention manifested in unambiguous language. The words of Keating J. in Wood v. Riley (1867) L.R. 3 C.P. 26 were then borrowed and from which it was concluded that “if the two sections are repugnant, the known rule is that the last must prevail.” That, unquestionably, is good law but I do not myself think that subrule (1) and (4) are necessarily repugnant and I should have thought if an interpretation could be put on these two rules which would avoid a repugnancy, it is permissible
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to do so under the equally well-known rule of statutory interpretation, namely ut res magis valeat quam pereat.
The learned Chief Justice has reinforced the ratio of the loga interpretation by a warning at pp. 82-83 supra that: “It must be appreciated that there is no inherent right of appeal in a litigant; nor indeed is there inherent power in any court to hear appeals. Both the right and the power are creatures of statute . . . “ In another passage, after expressing the desirability of this court having wider powers than is possessed by inferior courts in entertaining appeals, he observed at p. 84 supra: “but the court cannot by inference arrogate such powers to itself. They must be conferred expressly by legislation . . . “ I respectfully agree and would not dare to suggest that the law was otherwise. But I should have thought that the problem with which we are confronted, is not whether or not power was granted to this court to extend time expressly, but whether the power which was admittedly granted, was whittled away by a subsequent subsection which makes the exercise of that power almost illusory.
Had my brother Azu Crabbe taken part in the present decision, the observation I am about to make would not have been necessary. Azu Crabbe J.A. took no part in our original ruling and therefore shares no blame for our, as it appears, erroneous decision. But he took part in the later Loga interpretation and expressed the view that the construction which we put on rule 10 (1) was the correct one, and in some other ways, went into the defence of our conclusion. Indeed, he went further than we did because he traced the origin of the rule granting enlargement for almost a century, that is, from 1876 when the Supreme Court was established in this country. He showed that right down to 1948, the statutory predecessors of this court have always had powers to enlarge time superior to the High Court. His researches revealed that it was only then, that is, in 1948, that the High Court was given jurisdiction equal to this court to enlarge time. He thought the omission of any reference to this court in the restrictive subrule (4) of rule 10 was deliberate and he concluded that the legislature intended to restore the formerposition in which this court had wider power for extending time to appeal than the High Court. That Azu Crabbe J.A. put a lot of industry into an examination of the history of the rules seems plain, and the learned Chief Justice paid him a compliment and said he examined these rules “with his usual analytical diligence.” But the Chief Justice was of the opinion that he cannot have profited very much by the exercise, because the only relevant lesson that the history of the rules teaches is that the legislature has always limited the time within which appeals should
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be brought. With respect I do not think that Azu Crabbe J.A. was concerned to show that the legislature had always or in the past manifested an intention to give this court unlimited time within which to enlarge the time to appeal. What he did show was that for upwards of 50 years, the legislature has, in its wisdom, thought that this court should have wider powers to enlarge the time to appeal than it thought right to confer on the High Court. He saw no reason why in 1962 the legislature should suddenly decide to reverse the rules and restrict the powers of this court to an almost crippling extent. White one can conceive of at least one good reason why the legislature might have wished in 1962 to confer unlimited power on this court to enlarge time, one cannot think of any reason why it would wish to paralyse the highest court of the land in the manner which the present ruling suggests. At the time the 1962 rules came into force, the predecessor of this court had become the final court of appeal in this country, appeals to the Privy Council having by the Constitution, 1960, been abolished. The Privy Council, which this court has replaced, itself has unlimited power to grant enlargement of time to appeal to itself, the only limiting consideration being requirements of justice. It does not therefore seem to me unreasonable that the legislature may wish to broaden the powers of this court in a manner consistent with its enhanced status as the final repository of justice. The learned Chief Justice considers at p. 84 supra that a case might be made “for the desirability of the highest court in the land being possessed of wider powers than the lower courts in the matter of appeals to enable it to do justice in hard and deserving cases …” I entirely agree. “Hard cases make bad law” is a familiar saying which contains some elementary wisdom and if that power does not now exist, as I suspect it does, it ought to be conferred and conferred post haste. I have given full vent to the difficulties I feel about this matter but, these difficulties are not strong enough to entitle me to dissent and as I said before, I propose to concur in the learned Chief Justice’s conclusion. It follows therefore that I am in agreement with the order proposed.
JUDGMENT OF AMISSAH J.A.
I have had the privilege of reading the ruling of my lord the Chief Justice beforehand. From it I do not now wish to dissent.. But I must confess that it has not been easy for me to come to the conclusion finally accepted by the court. It is for this reason that I wish to record these few observations.
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I readily agree that the right of appeal cannot be implied but must be given by express words. But the issue here is not whether this court is to imply a right in itself to grant applications for extension of time or not. That seems to me to be settled quite expressly by the provision in subrule (1) of rule 10. The issue is whether the power given by that subrule has been taken away completely or so whittled down by subrule (4) as to disallow the application made in the present case. If the answer were simply that subrule (4) had taken away all power from this court, my hesitation would have been even more marked. For thelaw ought not to allow the revocation of an enactment by construction when the words may be capable of proper operation without it. And as has been shown by the argument on behalf of the appellant on this point, there is a possibility of the operation of the two provisions side by side without the one revoking the. other. I am also quite sceptical about an outright revocation because the alleged contradictory provisions appear in the very same rule. If the work of the legislature is treated, for the purposes of construction, in the same manner as an author, and if the author is supposed to be consistent with himself, it is quite strange that the legislature should in this case, within the space of a few sentences, have so completely somersaulted in its intention. I do not think that it should so easily be assumed that Parliament has taken away with one hand what it has given with the other.
An analysis of the Chief Justice’s judgment, however, does not in fact yield the result that the legislature had taken away what it earlier gave, but that it had only limited the operation of the power conferred. This of course can be more readily acceded to. My difficulties, however, stem from the fact that if this proposition is accepted, then the residual power left in this court becomes so tenuous as to be worthless.
It seems to be commonly accepted that there are no less than three distinct periods during which an application for extension of time within which to appeal could possibly be made: the first is the period of three months when the appellant may appeal as of right; the second is the one month’s grace given after the expiry of that three months period. An application made during either of these two periods is undoubtedly permissible. The dispute has been limited to the propriety of applications made after this one extra month. One view of the matter is that an application made during this third period cannot be countenanced by any court in the Republic. The opposing view being that the Court of Appeal may properly entertain such an application. Having regard to the fact that an application, whether brought within the three-month period or within the extra month, is valid, one wonders at the justification for the distinction drawn
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between these two periods. Why is it not simply taken that an application may be brought within four months of the decision to be appealed against? Because if it is so regarded, and I find it difficult to justify the contrary, the requirement that every application be made to the court below whose decision shall be final, must apply not only to the applications made within the one month of grace but to every application made within any part of the total four months granted.
It would then be clearly seen that subrule (4) construed generally, completely takes away the jurisdiction of the Court of Appeal. A result which this court, no doubt, would have leaned more heavily against.
One result of the acceptance of the distinction is to give an application made within the three months, during which time no one need make such an application, a totally different character from an application made within the month thereafter. For it would appear then that an application made within the three months is not governed by subrule (4) of rule 10 of the Supreme Court Rules, 1962 (L. I. 218), that being concerned with two things: the absolute prohibition of applications after the extra month of grace, and the regulation of applications made within that one month period. Therefore, presumably, it is the application made within this one month period which has to be supported by an affidavit setting forth good and substantial reasons and further be supported “by grounds of appeal which prima facie show good cause for leave to be granted, “ It is this application within the extra one month which has to be made to the court below whose decision “shall be final,” According to this reasoning if the applicant chooses to make his application for extension of time within the three months then after obtaining a refusal of his request from the court below he may proceed to the Court of Appeal with the same request as the provision in subrule (4) on the finality of the decision of the court below does not apply. It does further mean that he who applies within the three months is not by legislation called upon to support hisrequest by an affidavit containing good and substantial reasons nor need his application to be supported by grounds of appeal which prima facie show good cause because subrule (4) does not apply to him. But why the applicant within the three months should be treated with such respect and circumspection is not clear to me. However looked at, a valid application of the kind under consideration, whatever be the time in which it is made, is no more nor less than an application for extension of time. And on that basis to suggest that different rules, depending on the time of its making, should apply is to introduce unnecessary refinements into the law. I would have thought that when subrule (4) spoke of “every such application…” and “any such application…”
[p.90] of [1967] GLR 76
it was not speaking of every or any application for extension of time within the one month period of grace only, but of every or any application for extension of time generally. But in this I accept that I am in a depressing minority.
It seems to me odd, to say the least, that a man faced with the choice of filing his appeal within time or bringing a motion to ask for permission to delay, should at any time choose the latter course. The filing of his appeal does not consist in anything more than filing a notice setting forth the grounds of appeal, stating whether the whole or part of the decision of the court below is complained of, and the nature of the relief sought, apart from formalities like the statement of the names and addresses of the parties directly affected by the appeal. If he were to choose not to file his appeal but ask for extension of time within which to do so, he might find that he is not relieved from making averments in his supporting affidavit which are not substantially unlike those contained in the notice he fights shy of filing at the time. And if subrule (4), though not strictly applicable to him, is any guide as to what the courts would require to hear from him, he will not be confined simply to stating his grounds of appeal as he would have had to do if he were merely filing his appeal, which he is entitled to do as of right, but his grounds must prima facie show good cause for leave to be granted. And after all this he runs a serious risk of his application being turned down, whether on the ground that good and substantial reasons for the application had not been given or merely on the ground that the court is not disposed to granting the application, does not matter. And the knowledge of the refusal might come to him when he really is out of time. The odds are so heavily against this alternative that I would at first blush have entertained doubts as to the sanity of whoever chooses it. But I understand that he may want to do that because filing the appeal would have to be followed up by the fulfilment of the conditions of appeal. An inability presently to comply with the conditions may therefore cause the prospective appellant to ask for time until he is ready to fulfil the conditions. In that case I would have thought that his best course would be to file his appeal and then at the appropriate time ask for leave to fulfil the conditions out of time.
‘The desirability for this court to have a greater power than the High Court to grant extensions of time has been dealt with both by the learned Chief Justice and by my brother Apaloo and I need not elaborate further on it. On the whole, it is difficult for one who is uninitiated in the intricacies of civil procedure to grasp the reality of the present power in the Court of Appeal to grant an extension of time as envisaged in subrule (1) of rule 10. But though hard
[p.91] of [1967] GLR 76
to discern the possibility of the exercise of the power seems nevertheless to exist. That being so, it would,
I think, be even more curious if this court should have power to deal with only those applications made within the original three months, or after the one month period of grace, with a complete ouster of its jurisdiction if the application is made during the intermediate, and incidentally also the most likely, period, namely, the one month’s grace. On that ground I, with some hesitation, concede that the power ofthe court has not been completely taken away. It is only limited, even though rather severely. I do not feel strongly enough about these doubts of mine to carry them into dissent. I therefore concur in the learned Chief Justice’s conclusions, and draw some comfort in his call for a restatement of the rules in clearer language.
DECISION
Preliminary objection upheld.
Appeal dismissed.
T.G.K.
