DIVISION: IN THE SUPREME COURT
DATE: 11TH MARCH, 1963
BEFORE: CRABBE, MILLS-ODOI AND OLLENNU JJ.S.C.
CASES REFERRED TO
(1) Schafer v. Blyth [1920] 3 K.B. 140
(2) Atwood v. Chichester (1878) L.R. 3 Q.B. 722, C.A.
NATURE OF PROCEEDINGS
APPEAL against a ruling of Charles J. sitting in the High Court, Sekondi, dismissing the appellant’s
application for enlargement of time within which to apply for leave to apply for certiorari.
COUNSEL
Dr. J. W. de Graft Johnson for the appellant.
C. F. Hayfron-Benjamin, Snr., for the respondent.
JUDGMENT OF OLLENNU J.S.C.
The appellant moved the High Court, Sekondi, under Order 64, r. 61 of the Supreme [High] Court (Civil
Procedure) Rules, 1954, for an order for enlargement of the time within which to apply to the court under
Order 59, r. 2 for leave to apply for an order of certiorari to quash certain proceedings before the Shama
State Council. His application was refused by Charles J.,2 on the 29th May, 1961. It is from that ruling
that the appellant has appealed to this court. The main ground upon which the appellant attacked the
ruling is that the learned judge erred in dealing with the application for enlargement of time as if it were
an application for leave to apply for an order for certiorari, or an application for an order for certiorari.
Order 59, r. 1 provides that leave of the High Court must be obtained as a condition precedent to an
application for an order for the prerogative orders of mandamus, prohibition or certiorari. And sub-rule
(4) of the said order provides that in the case of certiorari to remove a judgment, etc., for it to be quashed,
the application should be made not later than six months after the date of the proceeding or within such
shorter period as may be prescribed by any enactment. No enactment has provided a shorter period within
which an application
[p.273] of [1963] 1 GLR 271
for leave should be made; therefore six months is the statutory period within which an application for
such leave should normally be made to the court. But Order 64, r. 6 provides that:
“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.” This rule gives the court a discretion to extend the statutory period fixed by any statute for doing any act
or taking proceedings. “The object of the rule,” in the language of Lush J. in Schafer v. Blyth,3 “is to give
the Court in every case a discretion to extend the time with a view to the avoidance of injustice.” I adopt
those words of the learned judge.
Therefore in an application for enlargement of time under Order 64, r. 6, the sole question the court has to
decide is whether or not the delay by an applicant to do an act or take any proceedings, is bona fide,
reasonable, or excusable such that refusal to enlarge the statutory period would result in injustice to the
applicant. In deciding that issue, the court must take into consideration all the history and circumstances
which led to the application to enable it to determine whether or not the grant of the application in a
particular case can appear to be a judicial exercise of its discretion.
For example, in Atwood v. Chichester,4 an application by a defendant for extension of time within which to apply to set aside a judgment obtained against him by default, the Court of Appeal in England heldherein that where no irreparable wrong will be done to a plaintiff who had obtained judgment by default,lapse of time is not a bar to an application to set it aside. Bramwell L.J. in the course of his judgment in that case said.5
“…when irreparable mischief would be done by acceding to a tardy application, it being a departure from the
ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but that in
other cases the objection of lateness ought not to be listened to, and any injury caused by the delay may be
compensated for by the payment of costs.”
It is true that in the process of considering whether or not acceding to a tardy application will cause
irreparable mischief, the court may look at the nature of the proceedings in respect of which the process
would be initiated if time were extended; but such a consideration should be limited to the extent and
nature which will assist the court to decide whether or not the delay is bona fide and excusable, but no
further.
[p.274] of [1963] 1 GLR 271
It will be observed that in the High Court, counsel for the applicant confined his submissions to the
matters which tended to show that the delay in making the application for leave was bona fide and
excusable, and that it was a proper case which justified the exercise of the court’s discretion in favour of
the appellant. Counsel for the respondent however ignored those relevant matters and addressed the court
as if the matter before it was a substantive application for an order for certiorari. The surprising thing is
that although the learned judge realised the mistake of counsel for the respondent, yet instead of
correcting it, and directing counsel’s attention to the issue before the court, he rather invited counsel for
the appellant to advance arguments in reply to the submissions erroneously made by counsel for the
respondent. He said:
“Mr. Bannerman is allowed to reply because counsel for the opposer has dealt with this application for
extension of time as if he was dealing with the application . . . opposing the grant of certiorari.”
The invitation by the learned judge did not influence counsel for the appellant; he maintained his stand. In
spite however of the submission of counsel for the appellant, and in spite of the fact that the learned judge
opened his ruling by saying that the application before him was one for enlargement of time, and in spite
further of the fact that he set out in full the appellant’s affidavit in support of the said application, he soon
drifted from the application before him, and devoted his ruling entirely to consideration of an application
for an order for certiorari. He concluded “For these reasons I dismiss both applications.”6 But there was
only one application before him, and that application received no consideration in the ruling, it was not
adjudicated upon by the learned judge though he had all the facts before him. It is therefore for this court
to consider the facts and to decide whether or not discretion should be exercised in favour of the
appellant. The proceedings in respect of which the appellant intends to apply for an order for certiorari if he
obtained enlargement of time, were proceedings before the Shama State Council in which the appellant
was plaintiff and the respondent was defendant. Judgment in the said suit was delivered by the state
council on the 3rd May, 1958. Before instituting the action in the said suit, the appellant sued the
respondent in the High Court and claimed the identical relief which he subsequently made in the state
council, namely a declaration that he is the headman of the fishing community of Aboasi, and as such the
person entitled to collect tolls from the fishermen of the said community. The respondent objected to the
jurisdiction of the High Court to entertain the said suit; the learned judge upheld the objection and
dismissed the appellant’s claim with the following order:
“This court has no jurisdiction to go into the matter of who is the headman of the fishing community of Aboasi. Case is one for the State Council for Shama to determine who had been lawfully appointed headman of the fishing community of Aboasi. Action struck out . . .”
[p.275] of [1963] 1 GLR 271
The state council having given judgment against him, the appellant appealed as provided in the State
Council Ordinance, 1952.7 While his said appeal was pending he received a letter written to him by the
Government Agent upon directions of the Regional Commissioner, to the effect that the Minister of
Justice and Local Government had ruled that the subject-matter of his claim was not a constitutional
matter and therefore not within the jurisdiction of the state council, and consequently no appeal lies.
Subsequently, a notification appeared in the Gazette showing that his appeal had been dismissed.
Thereupon the appellant filed this application, this he did within two months of the said Gazette notice.
These facts show that the appellant did not of his own volition choose the state council as the forum for
adjudicating upon his claim; he was seeking redress for what he considered wrong done to him and went
to the highest court of first instance in the land, but he was thrown out of that court, the court having
upheld the objection of the respondent. It further shows that as soon as he was made aware that he had
been wrongly denied the right to prosecute his claim before the proper court, and within barely two
months of the Gazette publication of the determination of his appeal, he filed the present motion.
In those circumstances I am of the opinion that the appellant acted bona fide, and that to deny him the
opportunity to right the wrong done to him would be grave injustice.
For these reasons I would allow the appeal, set aside the ruling and order of the High Court including the
order as to costs, the costs if paid to be refunded.
For that ruling the following is substituted: The application is allowed, time for filing application for
leave to apply for an order for certiorari under Order 59, r. 2 is extended by three months from date
hereof.
JUDGMENT OF CRABBE J.S.C.
I agree.
JUDGMENT OF MILLS-ODOI J.S.C.
I also agree.
DECISION
Order accordingly.
