LOGA v. DAVORDZI AND OTHERS [1966] GLR 530

Division: SUPREME COURT

Date: 13 JUNE 1966

Before: SARKODEE-ADOO C.J., AZU CRABBE AND OLLENNU JJ.S.C.

CASES REFERRED TO

(1) Nye v. Nye [1964] G.L.R. 95, S.C.

(2) Young v. Bristol Aeroplane Co., Ltd. [1944] 1 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.; affirmed [1946] A.C. 163; [1946] 1 All E.R. 98; 115 L.J.K.B 63; 174 L.T. 39; 62 T.L.R. 99; 38 B.W.C.C. 48, H.L.

(3) London Street Tramways Co., Ltd. v. London County Council [1894] A.C. 489; 10 T.L.R. 630, H.L.

[p. 532] of [1966] GLR 530

(4) Re Transferred Civil Servants (Ireland) Compensation [1929] A.C. 242; sub nom. Re Irish Civil Servants 98 L.J.P.C. 39; 140 L.T. 254; 45 T.L.R. 57, P.C. (5) Fatuma Binti Mohammed Bin Salim Bakhshuwen v. Mohammed Bin Salim Bakhshuwen [1952] A.C. 1, P.C.

(6) Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., Ltd. [1894] A.C. 535; [1891-1894] All E.R. Rep. 1; 63 L.J.Ch. 908; 71 L.T. 489; 10 T.L.R. 636, H.L.

(7) Bongay v. Macauley (1931) 1 W.A.C.A. 146.

(8) Kudiabor v. Kudanu (1932) 6 W.A.C.A. 14.

(9) Rein v. Lane (1867) L.R. 2 Q.B. 144; 8 B. & S. 83; 36 L.J.Q. B. 81 ; 15 L.T. 466; 15 W. R. 345; 2. Mar. L. C. 448.

(10) R. v. Berchet (1690) 1 Show. K.B. 106; 89 E.R. 480.

(11) Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436; [1957] 2 W.L.R. 1; [1957] 1 All E.R. 49; 101 S.J. 60, H.L.

(12) Paisner v. Goodrich [1955] 2 Q.B. 353; [1955] 2 W.L.R. 1071; [1955] 2 All E.R. 330; 99 S.J. 353, C.A.; reversed sub nom. Goodrich v. Paisner [1957] A.C. 65; [1956] 2 All E.R. 176; 100 S.J. 341; 167 Estates Gazette 384, H.L.

(13) Morelle Ltd. v. Wakeling [1955] 2 Q.B. 379; [1955] 2 W.L.R. 672; [1955] 1 All E.R. 708; 99 S.J. 218, C.A.

(14) Jennings v. Kelly [1940] A.C. 206; [1939] 4 All E.R. 464; 109 L.J.P.C. 38; 162 L.T.1; 56 T.L.R. 154; 84 S.J. 131, H.L.

(15) Curtis v. Maloney [1951] 1 K.B.736; [1950] 2 All E.R.982; 66 T.L.R. (Pt. 2) 869; 94 S.J. 761, C.A.

(16) 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

APPLICATION for an enlargement of time in which to appeal to the Supreme Court under rule 10 (1) of the Supreme Court Rules, 1962 (L.I. 218), against a final judgment of Sowah J. in the High Court, Ho, delivered more than four months before the application was made.

COUNSEL

E. V. De Graft-Johnson for the applicant.

C. E. Quist for the respondents.

JUDGMENT OF SARKODEE-ADDO C.J.

The applicant by his counsel seeks by this motion made under rule 10 (1) of the Supreme Court Rules, 1962,1 enlargement of time to file an appeal to this court against a final [p.533] of [1966] GLR 530 judgment of Sowah J. delivered on 25 June 1965. The motion was filed at the registry of the court on 3 December 1965, that is, five months and eight days after the said judgment. The facts alleged by the applicant in his supporting affidavit and the allegations by the respondents in answer and in opposition to the application are controversial and, in the main, irrelevant for the purposes of this ruling, save and except that the respondents’ representative, by his affidavit, alleged thus: “(7) That I am informed by counsel and verily believe that this application is not properly before the Supreme Court.

(8) That I am further informed by counsel and verily believe that the application is altogether misconceived and frivolous. And in the circumstances the respondents pray for the dismissal of the application.”

What is sought from the court is a true and proper construction of the said rule 10 which provides as follows:

“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.

(2) The prescribed period for appeal shall be calculated from the date of the decision appealed against: Provided that where there is no appeal as of right the prescribed period shall be calculated from the date upon which special leave to appeal is granted.

(3) An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below.

(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.” Rule 10 (1) and (4) are the pertinent provisions for consideration as to whether or not the application is competent or properly before the court. Learned counsel for the respondents argued that upon [p.534] of [1966] GLR 530 due consideration of this rule, it appears the proper interpretation is that within the first three months after a final judgment, and within the first fourteen days after an interlocutory judgment, as the case may be, a would-be appellant, anticipating that the appeal could not be filed within the statutory period, may apply to the court below or this court for enlargement of time by motion within the prescribed statutory period for enlargement of time under, and by virtue of rule 10 (1). Failing that, the application, in either case, should be made within one month after the expiration of the prescribed statutory period to the court below. But no application lies to either court after four months from the date of the judgment. Learned counsel for the applicant has pressed vehemently in his argument for the order sought and has referred to a ruling of this court on the very issue now before the court and relies on that ruling. It is Nye v. Nye,2 and for the purpose of easy reference I reproduce the ruling delivered by Apaloo J. (as he then was) and in which Adumua-Bossman and Mills-Odoi JJ.S.C. concurred.

“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 (L.I. 218), (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: ‘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.’ 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 [p.535] of [1966] GLR 530 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 ([1960] G.L.R. 265, S.C.). 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 (L.N. 116/57), 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

[p.536] of [1966] GLR 530 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, (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 [p.537] of [1966] GLR 530

(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 (C.A. 9), 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 ([1948] 2 All E.R. 545), Meier v. Meier ([1948] 1 All E.R. 161), Edwards v. Edwards ([1951] 1 All E.R. 63), and Hurlstone v. Hurlstone ([1956] 1 All E.R. 804). 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

[p.538] of [1966] GLR 530

(Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49). 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.”

The task thereby set the court is to make a pronouncement on the instant application, whether or not to follow the ruling in Nye v. Nye. To follow the ruling is no problem, but to my mind so important a matter should not be left in the air by concluding that it is probably or even possibly correct. On the other hand, to rule otherwise invokes the meaning of “ in principle” in article 42 (4) of the Constitution, 1960, which declares that the Supreme Court “shall in principle be bound to follow its own previous decisions on questions of law.”

In my endeavour to arrive at the right conclusion while, at the same time, avoiding, as far as practicable, indulgence in unnecessary academic exercises, I have had recourse to English authorities of the Court of Appeal, the House of Lords and the Privy Council. In particular, inter alia, to Young v. Bristol Aeroplane Co., Ltd.3 (Court of Appeal—obligation to follow previous decisions); London Street Tramways Co., Ltd. v. London County Council4 and Re Transferred Civil Servants (Ireland) Compensation.5 I should point out that, for

[p.539] of [1966] GLR 530 the purposes of my endeavour, I have not thought it necessary to wander outside the English authorities. On the authorities, it appears the better view is that in England the rule that the court of highest resort is bound by its own decisions is followed only by the Court of Appeal and the House of Lords. The Privy Council, as an advisory tribunal of the Queen, has, in many cases, rejected the binding force of its previous decisions, and perhaps no doubt rightly so. The Supreme Court, like its counterparts in the Commonwealth, is the creature of statute and became the final court for Ghana in place of the Privy Council which re-examines its own decisions, and although this is a novel situation, with inadequate authorities to deal with from the Ghanaian view point, I am constrained to conclude confidently that the Supreme Court of Ghana, just as the Privy Council, is not in principle bound by its previous decisions. This is my opinion and, if I am right in my reasoning, then, giving the rule its ordinary and grammatical meaning, I am in entire agreement with learned counsel for the respondents that the application cannot be entertained, the court being without jurisdiction to extend the time laid down by law within which to apply either to the court below or this court or exclusively to the court below.

I would, accordingly, dismiss the application with costs for the respondents.

JUDGMENT OF AZU CRABBE J.S.C.

This application raises two interesting points of interpretation, first, whether, in view of article 42 (4) of the Constitution, 1960, the Supreme Court can overrule its previous decision, and secondly, if the answer to the first question is in the affirmative, whether this court’s interpretation of rule 10 (1) and (4) of the Supreme Court Rules, 1962, in Nye v. Nye6 was right.

Article 42 (4) of the Constitution, 1960, declares that the Supreme Court “shall in principle be bound to follow its own previous decisions on questions of law.” To my mind the words “in principle” connotes some flexibility in the application of the doctrine of stare decisis by this court, which cannot regard itself as absolutely bound by its own previous decisions. Strict adherence to this doctrine is peculiar to the English legal system, where the House of Lords, which is the highest tribunal of the realm, is absolutely bound by its previous decision on an identical point. On the other hand, the appellate tribunals in France and U.S.A. do not consider themselves bound absolutely by their former decisions. The Privy Council, which was

[p.540] of [1966] GLR 530 formerly the final court of appeal for this country and other Commonwealth countries, considered itself free to reconsider, and depart from, if necessary, one of its past decisions. The merit of this less strict rule of precedent is that it enables the court to mould the law and to adapt it to the changing conditions of society. In such a fast developing country as Ghana, I think the framers of the Constitution, 1960, must have had the merits of the flexible rule in view.

But the flexible rule of stare decisis does not mean that the Supreme Court should start, in every case, to speculate on every ground on which a previous decision was based, and reverse its recent and well-considered decisions on controversial questions. The maxim interest reipublicae ut sit finis litium is based on good sense, and it is therefore important that like cases must be decided alike, so that there must be stability in the law. It follows, therefore, that this court, like the Privy Council, must feel strongly disposed to adhere to its previous decisions: see Fatuma Binti Mohammed Bin Salim Bakhshuwen v. Mohammed Bin Salim Bakhshuwen.7 It must only deviate from its previous decision when the previous decision is manifestly wrong, or in exceptional circumstances. I apprehend that “exceptional circumstances” means that there are compelling reasons for the Supreme Court to depart from its own previous decision. I also think that the Supreme Court can depart from its previous decision in matters in which public policy is concerned, for as Lord Watson said in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., Ltd.8 public policy decisions “cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.” Further, I think that the Supreme Court is at liberty to get rid of a previous decision which is out of step with the social philosophy of the day, or which has been rendered obsolete by subsequent legislation.

It seems to me in this present case that the only ground on which this court can decline to follow Nye v. Nye (supra) is that the decision in that case is manifestly wrong. The ruling of Apaloo J. (as he then was) which was the leading ruling in that case, has been quoted in extenso in the ruling of the learned Chief Justice, and it is clear that there it was contended by counsel on behalf of the applicant that the limitation imposed in subrule (4) applies only to the High Court and not to this court, otherwise it would be impossible for this court to exercise the power conferred upon it by rule 10 (1) to enlarge the time within which to appeal. Counsel for the applicant in this case has adopted this argument and has relied solely on Nye v. Nye

[p.541] of [1966] GLR 530

(supra). Counsel for the respondent in that case argued that the limitation imposed by rule 10 (4) is applicable both to the court below and to this court. In this case, counsel for the respondents if I understood his argument rightly, has invited us to hold that the true construction of rule 10 (1) is that within the first three months after final judgment, and within the first fourteen days after an interlocutory judgment, as the case may be, a would-be appellant, who anticipates he would be late in filing a notice of appeal within the statutory period, may apply to the court below or this court for enlargement of time. With respect, I find this argument very ingenious but nonetheless fallacious. In the first place, rule 10 (1) only confers power to enlarge time both upon the court below and this court without in any way prescribing the manner in which, and the time when, that power is to be exercised. It is not the function of the courts to read into Acts of Parliament words which are not in the Act; to do so, would, in my view, amount to a usurpation of the legislative functions of Parliament. The court cannot import into a statute words which are not to be found there, unless it is necessary to do so in order to give the paragraph sense and meaning in its context. In the second place, it seems to me that acceptance of the argument of counsel for the respondents, would, with respect, lead to an absurdity, because the result would be that the court below would have more powers than this court in enlarging the time within which to appeal. It seems to me that counsel for the respondents is confusing these present rules with the old rules under the Supreme Court (Court of Appeal) Rules, 1957,9 where the court below had a limited jurisdiction in extending the time within which to fulfil conditions of leave to appeal, “whether before or after the expiration” of the prescribed periods.

In Nye v. Nye, Apaloo J. contrasted the present and old rules relating to the limitation upon the powers of the trial court and the Court of Appeal to extend the time within which to appeal and said10: “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

[p.542] of [1966] GLR 530 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.”

Like Apaloo J., I prefer the view that the intention of the legislature in designedly omitting any reference to this court in rule 10 (4) was to free it from the restriction imposed by this subrule. 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. I will therefore endeavour to review briefly the history of legislation in this country upon the powers of the courts with regard to limitation of time for appeals. In 1876 the Supreme Court Ordinance, 1876,11 was passed and a Supreme Court for this country (then the Gold Coast) was constituted for the purpose of administering justice. By section 7 of that Ordinance, a Full Court was created as the court of appeal. Rules of court were made under this Ordinance, and these included provisions regulating appeals to the Full Court. Rule 2 of Order LIII provided that any aggrieved party could apply to the court whose decision was being appealed from, that is, the court below, for leave to appeal to the Full Court. Certain limitations were placed on the powers of both the court below and the court of appeal (Full Court) in regard to the time within which an application could be made. These were:

(1) Interlocutory decisions: After fourteen days application for leave to appeal could not be entertained (rule 9).

(2) Appeal on merit: After three months from the date of the decision, an application for leave to appeal could not be entertained by the court below (rule 10).

(3) Powers of the Full Court: After six months from the date of a decision on the merit, an application for leave could not be entertained by the Full Court (rule 11).

The provisions remained unaltered as part of the rules governing appeals until 1930 (see Laws of the Gold Coast Colony (1928 Rev.)). The most important feature of these rules was that the jurisdiction of the court of first instance was never co-extensive with that of the appeal court. It would seem that the combined effect of reading rules 10 and 11 of Order LIII together is that, in relation to the court below, jurisdiction to extend the time within which to apply for leave to appeal was virtually vested in the appeal court. On 1 March 1930, the West African Court of Appeal Ordinance, 1929,12 came into effect and thus was created the West African

[p.543] of [1966] GLR 530

Court of Appeal, established by the Order of His Majesty in Council (West African Court of Appeal Order in Council, 1928). This new court became the successor of the Full Court. Rules 9, 10 and 11 of the West African Court of Appeal Rules, 1929, were a reproduction of the old rules 9, 10 and 11 of Order LIII respectively. In Bongay v. Macauley13 it was held that the fact that a party may apply to the West African Court of Appeal for leave to appeal at any time within six months from the date of the judgment, does not mean that he must allege any special reason for his failure to obtain leave from the court below within the three months allowed by rule 10. Under the 1929 rules an appeal was initiated by an application for conditional leave to appeal, and there was no jurisdiction to extend the time fixed by the rules within which an appeal could be brought. Thus, in Kudiabor v. Kudanu14 it was decided that the West African, Court of Appeal was bound by its own rules and under those rules the court had no power to extend the time within which an application for leave to appeal could be made. It is to be noted at this stage that Nye v. Nye was decided under a different rule, and the crucial question in that case, as in the present one, was: Is the jurisdiction of the Supreme Court to extend the time limited for filing an appeal circumscribed by subrule (4) of rule 10 of the Supreme Court Rules, 1962? This question is of great importance, because, unlike the court in Kudiabor v. Kudanu (supra), subrule (1) of rule 10 confers jurisdiction on the Supreme Court to extend the time within which to appeal. There can be no doubt that the provisions of rule 10 of the 1962 rules are not the same as rules 9, 10 and 11 of the 1929 rules and it seems to me, with the greatest respect, that the decision in Kudiabor v. Kudanu (supra) offers no assistance whatsoever in the construction of rule 10 of the 1962 rules.

The West African Court of Appeal Orders in Council, 1928-35, Consolidated, created a new West African Court of Appeal and in the rules of court made under the authority of article 12 of the Order in Council (the West African Court of Appeal Rules, (1937) provisions were made to regulate proceedings in civil appeals. Under these rules, all appeals were commenced ordinarily by the would-be appellant making application by motion to the court below for leave to appeal, or special leave to appeal, as the case might be. It was provided by rule 11 (2) that application for leave to appeal could be made, “in the case of an appeal against an interlocutory decision—within fourteen days of such decision, and in the case of an

[p.544] of [1966] GLR 530 appeal against a final judgment or decision within three months from the date of such judgment or decision—and the Court below shall have no jurisdiction to entertain any application made after those periods respectively.”

Conditional leave to appeal or special conditional leave to appeal (as the case might be) was granted subject to the fulfillment of certain conditions within specified periods. The court below was vested with jurisdiction to extend the time, whether before or after the expiration of such periods, but it was only in the matters relating to conditions of leave to appeal that the court below, exercised this jurisdiction. Rule 16 conferred on the West African Court of Appeal power to grant special conditional leave to appeal on the application of a would-be appellant who had failed to make application to the court below for conditional leave to appeal within the statutory period of three months. This rule reads: “(1) A would-be appellant against a final judgment or decision who has failed to make application to the Court below for Conditional leave to appeal within the period of three months prescribed in rule 11, may at any time within a further period of three months apply to the Court for Special Conditional leave to appeal, and the Court, if satisfied that there has been good cause or reasonable excuse for the failure, may, in its discretion grant special Conditional leave to appeal . . .

(2) After the expiration of such further period of three months the Court shall have no jurisdiction to entertain an application for special Conditional leave to appeal.”

It is quite clear from the West African Court of Appeal Rules, 1937, that the Court of Appeal was vested with wider powers than the court below to enable it to extend the otherwise limited period within which a would-be appellant could commence appeal proceedings.

The West African Court of Appeal Order in Council, 1928-35, Consolidated, as amended by the West African Court of Appeal (Further Amendment) Order in Council, 1938, was revoked in 1948 and replaced by the West African Court of Appeal Orders in Council, 1948, which came into operation on 1 July 1948. Under the rules made under the 1948 Order in Council, the procedure for appeal was changed, and an appeal was deemed to have been brought when a notice of appeal had been filed in the registry of the court below. For the first time in 72 years, both the court below and the appeal court were granted co-equal jurisdiction to enlarge the statutory period allowed for filing an appeal. The relevant portions of rule 14 which dealt with the limitation of time for appealing read as follows:

[p.545] of [1966] GLR 530

“(1) Subject to any provision which may be made by the legislature of any Territory 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 may be made to the Court or to the Court below (in which case the decision of the Court below 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.”

(The emphasis is mine.)

This rule was reproduced in rule 11 of the Supreme Court (Court of Appeal) Rules, 1957. There can be no doubt that under subrule (4) of rule 14 of the West African Court of Appeal Rules, 1950, or rule 11 of the Supreme Court (Court of Appeal) Rules, 1957, an application for extension of time made within one month after the statutory period could be made either to the court below or to this court but where the application was made, in the first instance, to the court below, the decision of that court was final. That would-be appellant had a choice between the court below and the court of appeal. The problem which now confronts this court is the proper interpretation of subrule (4) of rule 10 of the Supreme Court Rules, 1962, which replaced the 1957 rules. Subrule (1) of rule 10 of the 1962 rules made no change in subrule (1) of the 1957 rules, which only declared that both the court below and the appeal court had jurisdiction to extend the statutory period within which to appeal. But in subrule (4) of rule 10 of the 1962 rules, we now see a significant change in the language of the previous rule, and this reads, “Any such application shall be made to the Court below whose decision shall be final.” The words “Any such application” can only refer, in my view, to an application made within one month after the prescribed period, and therefore the would-be appellant who wishes to apply for extension of time to file his appeal no longer has a choice between the court below and this court, for, under the mandatory provision of subrule (4), his application must per force be made only [p.546] of [1966] GLR 530 to the court below. I think it is a principle of construction of statutes that when the language employed by the legislature in an earlier statute on a particular subject has been departed from in a later statute relating to the same subject, the presumption is that the alteration in the language used in the latter statute must be taken to have been made deliberately. In order to ascertain the intention of the legislature in making the alteration, it is necessary to consider the mischief which existed and which it was intended to remedy. The obvious mischief, it seems to me, was that the powers of the Supreme Court, the highest tribunal in the land, was so circumscribed that it was impotent where the jurisdiction of the High Court was exhausted. It would seem that the remedy provided was to restore to the Supreme Court the powers which the appeal court had possessed prior to 1948 in relation to the limitation of the time within which to appeal. It seems to me therefore that Apaloo J. was not merely speculating when he said in Nye v. Nye15: “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 state appeals, is the collective good sense of this court.”

For my part, I can see no other reason for the legislature deliberately omitting any reference to the Court of Appeal in subrule (4) than that it was intended to effect a change in the law. In Rein v. Lane16 Blackburn J. said:

“It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words relating to such a matter, and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under such circumstances.”

Looking at the words “Court” and “Court below” in their context and collocation in rule 10, I think effect must be given to the word “Court” in subrule (1). It is a general rule of interpretation of statutes “that such a sense is to be made upon the whole, as that no

[p.547] of [1966] GLR 530 clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”: see R. v. Berchet.17 The jurisdiction conferred on the “Court” in subrule (1) is meant to be exercised. In my view it is impossible to say that the word “Court” in this subrule is controlled by the one month limitation imposed by subrule (4), otherwise I see no reason for the departure from the language of the 1957 rule. The question may well be asked: What is the point in changing the words “may be made” in the 1957 rule to the words “shall be made” in the 1962 rule? The only rational explanation therefore is that in the matter affecting extension of time within which to appeal this court is unaffected by any limitation period, and that it will, in special circumstances, enlarge time to appeal at any time when the justice of the case requires it.

I have had the advantage of reading in advance the ruling of my brother Ollennu who said18 “ . . . although Nye v. Nye discusses rule 10 (4) it is not a legal pronouncement on the issue which we are called upon to resolve in the present application; that issue being what do Parliament mean when they say ‘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?’ Therefore, I say, with all due respect, that in my view, in so far as Nye v. Nye purports to interpret rule 10 (4), it is a decision given per incuriam and therefore the court, in principle, is not bound by it.” With the greatest respect, I do not think Nye v. Nye merely discusses in the passage quoted in the ruling of Ollennu J.S.C. the very issue which is submitted for our consideration in the present case. In Nye v. Nye, the issue was the proper interpretation of rule 10 of the Supreme Court Rules, 1962, and not only of some of the words of the rule. The opening words of subrule (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” are by themselves so clear that the question of interpretation does not arise.

“When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattall to interpret what has no need of interpretation. Absoluta sententia expositore non indiget.

[p.548] of [1966] GLR 530

Such language best declares, without more, the intention of the lawgiver, and is decisive of it. The rule of construction is ‘to intend the legislature to have meant what they have actually expressed.” See Maxwell on interpretation of Statutes (11 th ed.), p. 4. These opening words of subrule (4) are meaningless if they are considered in isolation, unless they are related to the words in subrule (1). They must be viewed in connection with their context in the whole statute. Another passage from Maxwell on Interpretation, pp. 27-28, makes this point very clear:

“It is an elementary rule that construction is to be made of all parts together, and not of one part only by itself. Incivile est nisi tota lege perspecta una aliqua particula ejus proposita judicare vel respondere. Such a survey is often indispensable, even when the words are the plainest; for the true meaning of any passage is that which (being permissible) harmonises with the subject and with every other passage of the statute.” See also Attorney-General v. Prince Ernest Augustus of Hanover19 per Viscount Simonds.

But be that as it may, “the sole function of the court [when interpreting a statute] is to apply the words of the statute to a given situation” per Denning L.J. in Paisner v. Goodrich.20 The court in Nye v. Nye (supra), appears to have considered the words in subrule (1) and subrule (4) together and given a decision on the effect of the latter subrule in the given situation. In my view, the approach of the court was correct, because it was in accordance with the rules of interpretation. The final question is whether a decision is to be held to have been given per incuriam merely on the ground that instead of 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 that21:

“ . . . 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,” [p.549] of [1966] GLR 530 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 statute or statutory rule or some authority decisive of the issue. In Morelle Ltd. v. Wakeling,22 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 or forgetfulness 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.

I am therefore satisfied that the court’s interpretation of rule 10 (1) and (4) in Nye v. Nye was not only reasonable, but was far from being manifestly wrong, and that we ought to adhere to it. If I may borrow the words of Denning L.J. in Paisner v. Goodrich23:

“When the judges of this court give a decision on the interpretation of an Act of Parliament, the decision itself is binding on them and their successors (see Cull v. Inland Revenue Commissioners [1940] A.C. 51; 55 T.L.R. 1049; [1939] 3 All E.R. 761; Morelle Ltd v. Wakeling [1955] 2 W.L.R. 672; [1955] 1 All E.R. 708), but the words which the judges use in giving the decision are not binding. This is often a very fine distinction, because the decision can only be expressed in words. Nevertheless, it is a real distinction which will best be appreciated by remembering that, when interpreting a statute, the sole function of the court is to apply the words of the statute to a given situation.

[p.550] of [1966] GLR 530

Once a decision has been reached on that situation, the doctrine of precedent requires us to apply the statute in the same way in any similar situation; but not in a different situation. Whenever a new situation emerges, not governed by previous decisions, the courts must be governed by the statute and not by the words of the judges.”

Accordingly, I am of the opinion that this court has jurisdiction to entertain the present application. On the merits, however, I think this is a tardy application, and the applicant has not shown any good reasons for the excessive delay in bringing his application. I, therefore, agree that the application ought to be dismissed with costs.

JUDGMENT OF OLLENNU J.S.C.

In this matter, the applicant seeks an order for enlargement of time within which to appeal. The judgment of the High Court against which he intends to appeal was given on 25 June 1965, and his application for enlargement of time was not filed until 3 December 1965, more than four months after the date of the judgment.

The application is brought under rule 10 (1) of the Supreme Court Rules, 1962, which reads: “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.” Subrule (4) of the said rule 10 says:

“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.” Counsel submitted that rule 10 (1) gives discretion to the court as well as to the court below to grant extension of time within which to appeal; he argued that the words “Any such application” appearing in the last sentence in subrule (4) which says “Any such application shall be made to the Court below whose decision shall be final”

[p.551] of [1966] GLR 530 are referable only to an application for enlargement of time which is made within a period of one month from the expiration of the periods of fourteen days or three months prescribed in subrule (1) within which an appeal may be brought, and not referable to an application made at any other time. He submitted that when those words are so interpreted, they show that subrule (4) limits the period within which the court below can exercise its discretion to enlarge time, but does not affect the time within which the court may exercise the discretion to enlarge time given it by subrule (1); he submitted therefore, that to say that the court cannot entertain an application for enlargement of time made to it more than four months after a judgment of the court below, is to say that Parliament intend on the one hand, i.e. by subrule (1), to give the court discretion to enlarge time, and to take it away with the other hand, i.e. by subrule (4). For this submission, counsel relied upon a ruling of this court in Nye v. Nye, where the court said inter alia24: “. . . 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, (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

[p.552] of [1966] GLR 530 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.”

Counsel for the respondents on the other hand submitted that the clear intention of Parliament is to limit the time within which an appeal may be brought, and that when the present rules are compared with the old rules, which they replaced, the proper interpretation of subrule (4) is that a would-be appellant is prohibited from making application for enlargement of time to any court after the expiration of four months from the date of the judgment of the court below. I agree with counsel for the applicant that the words “Any such application” used in subrule (4) of rule 10 is referable only to an application for enlargement of time made within one month from the time limited for bringing an appeal.

Now in my opinion rule 10 (1) inferentially confers jurisdiction upon both the court and the court below, to exercise discretion to enlarge time when an application is properly made to either of them. The application for enlargement of time may be made either before or after the expiration of the time limit for bringing an appeal.

I am also of opinion that as far as the extent of that jurisdiction of the court to enlarge time is concerned, subrule (1) of rule 10 has to be construed in relation to subrule (4) in order to obtain the true intention of the legislature in rule 10 taken as a whole. In other words, each part or subrule of the rule must be construed firstly by itself and then in relation to the other subrules and then to the whole rule to see what light it throws upon the rule as a whole. Lord Wright in Jennings v. Kelly25 stated the principle I am discussing as follows: “The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be on the rest’; see also Curtis v. Maloney26. At this stage therefore I must pass on to subrule (4) of the rule. [p.553] of [1966] GLR 530

What then do Parliament intend to do by saying in subrule (4) that:

“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.”

The operative words in the subrule (4) are “No application . . . shall be made after the expiration of one month. “In my opinion the only unmistakable intention of Parliament in using those categorically imperative words is exactly what the words say, namely, that no application should be made after the expiration of one month from the expiration of the time limit within which a person may appeal. In other words, the right given to a would-be appellant under subrule (1) to apply either to the court or to the court below shall not be exercised after four months from the date of the judgment. In short, once four months expire from the date of judgment, an application for extension of time cannot be filed in any court, be it this court or the court below.

So that in subrule (4), Parliament is not dealing directly with an exercise of discretion by a court; by the operative words of the subrule, Parliament is prohibiting a would-be appellant from making application for enlargement of time from and after a fixed period. Thus, it is not a question of Parliament giving a discretion to a court by one hand and taking it by another. It is a question of Parliament giving a conditional right of appeal to a party, and fixing a date line after which he forfeits the right of appeal, and his appeal becomes statute-barred.

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,27 I say that “if the two [sub] sections are repugnant, the known rule is that the last must prevail.”

I shall now look at subrule (4) from the standpoint of the court; rule 10 of the Supreme Court Rules, 1962, replaced rule 11 of the [p.554] of [1966] GLR 530

Supreme Court (Court of Appeal) Rules, 1957. Under the 1957 rules, Parliament, in rule 11 (4), directed that “any such application,” i.e. the application for enlargement of time which may be made only within one month of the time limited for bringing appeal, may be made either to the court or to the court below, and that if it is made to the court below, its decision shall be final. Subrule (4) of the present rule 10 leaves out the court and lays down that “any such application,” i.e. the only application which may be made after the expiration of the time limit for appeal, should be made only to the court below, and that the decision of the court below shall be final; meaning that the only court to which application for enlargement of time may be made after the expiration of the time limit within which to appeal is the court below; that any such application may be made within one month from the time limited for bringing appeals and that after the expiration of that further one month of grace the appeal becomes statute-barred; and that the would-be appellant has no right to make any application, i.e. make to any court for enlargement of time.

As I earlier pointed out, rule 10 (1) gives discretion to the court to enlarge time; but the court may only exercise that discretion when, and only when, an application is properly brought before it. Rule 10 (4), on the other hand, prohibits the bringing of an application for enlargement of time after four months of the date of final judgment or one month and fourteen days after an interlocutory judgment. Therefore, any application which purports to have been brought at any time thereafter contravenes subrule (4) of rule 10 and is as good as if it has not been filed, and is, therefore, not before the court. It follows that since, in law, there is no application before it, the court cannot exercise any discretion in such a matter. The position of the jurisdiction given to this court under rule 10 (1) in its relation to the provisions of rule 10 (4) as I see it, is exactly the same as the original jurisdiction of the High Court, and indeed the jurisdiction of any other court with respect to any statute providing for limitation of action. For example, the High Court has original jurisdiction in all matters as provided in section 29 (a) of the Courts Act, 1960;28 evertheless where a claim is statute-barred, i.e. where an enactment, e.g. section 3 of the Statute of Limitation, 1623, stipulates that no action shall be brought in respect of such a claim after the expiration of certain number of years from the date when the cause of action accrued, the High Court cannot entertain the action. In other words, as far as jurisdiction given to the court in subrule (1) of rule 10 is concerned, subrule (4), read together with

[p.555] of [1966] GLR 530 subrule (1) should be interpreted in exactly the same way that section 3 of the Statute of Limitation, 1623, has always been read and interpreted by our courts taken together with section 29 (a) of the Courts Act, 1960. In other words, subrule (4) must be interpreted as prohibiting the court from exercising the jurisdiction given it in subrule (1) of rule 10.

I have attempted to demonstrate, and I hope clearly, that rule 10 (4) deals directly and specifically with “application for enlargement of time” and only inferentially with exercise of the discretion given in subrule (1). The words in subrule (4) which require interpretation are the operative words namely: “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.” The case of Nye v. Nye is cited to us as a ruling of this court which interprets the said subrule (4) of rule 10, and it is submitted that by virtue of article 42 (4) of the Constitution, 1960, the court is in principle bound to follow it as its previous decision on a question of law.

By the expression “shall in principle be bound” appearing in article 42 (4), I understand Parliament to mean that the Supreme Court may, in particular cases, depart from its own previous decision if it considers that the decision was given per incuriam or should, for any other exceptional reason, not be followed. I find support for this view from Bennion’s Constitutional Law of Ghana (1962), p. 173, and Salmond on Jurisprudence (11th ed.), pp. 175-188.

Now I have studied the ruling in Nye v. Nye with meticulous care, bearing in mind the words of article 42

(4) of the Constitution, 1960, in an attempt to find out what judicial interpretation it has given to the words “No application . . . shall be made” which we are now called upon to construe. I regret to say that my labours have been in vain. I can find no pronouncement anywhere in that ruling as to the meaning of those words “No application . . . shall be made . . .” In fact I find that except that the words are quoted at page 96 of the report, those words are not mentioned anywhere in the ruling, and no attempt was made to interpret them. To make the point clear without doubt, I reproduce the relevant parts of the ruling in extenso29:

“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 [p.556] of [1966] GLR 530 the ground that the High Court had no jurisdiction to entertain the petition and that therefore the proceedings and decrees 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, (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: ‘No application for enlargement of time in which to appeal shall be made after the expiration of one month form the expiration of time prescribed within which an appeal may be brought.’ This being a final decree the period of appeal expired on 8 April 1963 and if as counsel for he 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 alright, 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 form 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 (G.L.R. 265, S.C.). In that case, an appellant [p.557] of [1966] GLR 530 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 (L.N. 116/57), 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 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,

[p.558] of [1966] GLR 530

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, (hereinafter called the old rules) which it has replaced. Under that subrule, an application for extension of time made within 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 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.”

It follows that although Nye v. Nye discusses rule 10 (4) it is not a legal pronouncement on the issue which we are called upon to resolve in the present application; that issue being what do Parliament mean when they say “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?” Therefore, I say, with all due respect, that in my view, in so far as Nye v. Nye purports to interpret rule 10 (4), it is a decision given per incuriam and therefore this court, in principle, is not bound by it. Analysing the points made above, I say that, in my opinion, the proper interpretation to be placed on rule 10 (1) and (4) is as follows:

A person desiring to appeal may bring his appeal:

(a) against an interlocutory decision within fourteen days of the date of the decision; [p.559] of [1966] GLR 530

(b) against a final decision within three months of the date of the decision.;

(c) he may however bring his appeal at a subsequent date if he is granted extension of time within which to bring it, such extension of time may be granted either by the court or by the court below, if the application for it is made before the expiration of the fourteen days or the three months;

(d) after the expiration of the fourteen days or the three months, he has one month of grace within which he may apply for enlargement of time

(e) the application for enlargement of time made within the one month’s grace can only be made to the court below, and not to the court;

(f) when the one month’s grace expires, the would-be appellant cannot apply to any court whatsoever for enlargement of time which to being an appeal, and his right to appeal is completely barred forever.

Now, as earlier stated, the judgment of the court below against which the applicant intends to appeal was delivered on 25 June 1956; it being a final judgment the three months within which an appeal may be brought against it expired on 25 September 1965, and the period of grace, i.e. the one month thereafter within which an application may be made for enlargement of time within which to bring the appeal, also expired on 25 October 1965; the applicant is thereafter prohibited by rule 10 (4) from applying to any court for enlargement of time within which to appeal. Therefore this application is not properly before the court, and I would dismiss it.

DECISION

Application dismissed.

E. A. N.