Division: IN THE SUPREME COURT
Date: 11 MAY 1964
Before: SARKODEE-ADOO CJ, OLLENNU AND ACOLATSE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. This is an appeal from an order for certiorari, made by the High Court, Kumasi, quashing a writ of fi. fa. issued by the Local Court, Teppa, and declaring null and void, a sale of property consequent thereon. The fi. fa. in question was issued on 6 June 1961 in execution of an order of the Asantehene’s A2 Court made on 3 May 1960 in favour of the appellants herein; and the sale in question took place on 6 July 1961.
The proceedings which led to the execution commenced in the Teppa Local Court with a writ of
summons issued at the instance of the respondent. The said local court gave judgment in favour of the respondent on 29 January 1960; that judgment of the Teppa Local Court was set aside on 3 May 1960 as above stated by the Asantehene’s Court A2 on appeal thereto taken by the appellants herein. The respondent then appealed from that decision of the Asantehene’s Court A2 to the High Court, Kumasi, and the appeal is still pending.
On 6 June 1961, that is after the respondent had filed his notice of intention to appeal and the appeal had been pending in the High Court by virtue of regulation 176 of the Local Courts Procedure Regulations, 1959,1 the appellants applied to the Teppa Local Court for execution to issue, and the said local court on 19 June 1961 issued the writ of fi. fa. the validity of which is called in question by the present proceedings, and the sale complained of was made in consequence thereof.
The fact of the issue of the fi. fa. came to the knowledge of the respondent some time in July 1961, and he immediately applied to the Teppa Local Court to set the same aside on the grounds that the issue of the fi.fa. was illegal. The motion was on notice to the registrar of the Teppa Local Court, and to one S. H. Owusu, the auctioneer to whom the appellants entrusted the sale under the writ of fi. fa. The local court has refused to proceed with the motion on the ground that the said auctioneer could not be found to be served with a copy of notice of the application.
We must observe in passing that it appears strange to us that the appellants herein upon whose application the execution was levied, and who would be the persons really to be affected by the result of the application were not served with notice of the application. Be that as it may, when it became apparent to him from the several adjournments that the local court was not prepared to hear the motion, the respondent decided to move the High Court for an order for certiorari to quash the said fi. fa. and to declare the alleged sale as illegal.
The period of six months within which the respondent could apply for the order of certiorari, as provided by the Supreme [High] Court (Civil Procedure) Rules, 1954,2 Order 59, r. 3, had expired; he therefore resorted to Order 64, r. 6, and applied to the High Court for an extension of time within which to apply for leave under Order 59, r. 2, to apply for an order for certiorari. The application was made on notice to the registrar of the Teppa Local Court only, but not to the appellants herein who are the real persons to be affected by any order to be made upon the application. Extension of time was granted to the respondent as prayed, and after obtaining the necessary leave, he moved the High Court upon notice to the appellants and obtained the order sought.
At the hearing of the application, the appellants raised a preliminary objection to the right of the respondent to be heard contending that the grant of extension of time without notice to them is ineffective. The High Court overruled the objection holding:
“that the application is properly before this court. Whether an application for extension of time could be ex parte or on motion depends on the circumstances alleged in that application. The rule that such applications could be made on motion in my view is not mandatory.”
On the merits the High Court held that the issue of the fi. fa. is illegal, and consequently that the sale which was purported to have been made in pursuance of it was also null and void.
The merits of the case do not present any difficulty whatsoever. The order for execution which is being called in question was made when proceedings for appeal against the decision of the Asantehene’s A2 Court to the High Court had been commenced and the appeal was pending in the High Court. Regulation 176 sub-regulation (2) of the Local Courts Procedure Regulations, 1959,3 which at the time governed such appeals prohibits a local court to issue execution once notice of intention to appeal has been filed in the local court from whose decision the appeal is being taken. The regulation reads as follows:
“(2) The Local Court shall thereafter take no further action in the cause or matter and no further proceedings in execution of the order or decision appealed against shall be taken except by direction of the Appeal Court.”
By virtue of that regulation the giving of notice of appeal operates as a statutory stay of execution of the judgment. The order for execution to proceed made by the trial local court in contravention of that statutory prohibition is therefore indefensible; it is without jurisdiction and is therefore void ab initio and so is the sale allegedly made in pursuance of the illegal writ of fi. fa.: see In re Padstow Total Loss and Collision Assurance Association4 and Sarn v. Buadom.5 On this point we cite with approval Gyebu v. Lagos,6 and the authorities cited therein. In that case a judgment creditor, after the death of the judgment debtor, applied to the court and obtained a writ of fi. fa., and in due course sold farms of the judgment debtor, without first applying for substitution of the successor to the judgment debtor, and without obtaining leave of the court. It was held that the issue of execution after the death of the judgment debtor, without leave first being obtained and also without the judgment debtor’s successor having been properly substituted, was without jurisdiction, and that the sale which proceeded under it was ineffective, and the title to the properties allegedly sold remained in the debtor’s family in whom they had become vested upon the debtor’s death intestate.
There is, therefore, no question that the issue of the fi. fa. is void for want of jurisdiction, consequently in the eyes of the law, no sale has taken place, and the properties allegedly sold are still vested in the respondent.
Upon the authority of In re Padstow Total Loss and Collision and Sarn v. Buadom, (supra) the respondent could treat the sale as not having been made, and sue the appellants and the alleged purchaser for a declaration of his title to the farms and for trespass as was done by the plaintiff in Gyebu v. Lagos cited above. He however decided to resort to the prerogative order for certiorari to have the order for the issue of the writ of fi. fa. quashed.
The question which is raised on this appeal is: Did the respondent properly come before the High Court, and can he be heard? The appellants’ contention is that the respondent was not properly before the High Court, and therefore he should not have been heard, because (i) he failed to make his ex parte application to apply for certiorari within the time limit of six months laid down in Order 59, r. 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954, L.N. 140A.7 and (ii) his application for extension of time made after the expiration of the said six months should not have been entertained by the said court since the same was made without notice to the appellants the persons who would be affected if the order sought is made by the court. In other words it is contended by the appellants that once the time within which the ex parte application for leave could be made had expired, the court cannot exercise the discretion given to it by Order 64, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954, to enlarge the time, unless the application for enlargement of time is made on notice to the appellants to give them opportunity to be heard, and to object to the extension sought if they so intend. Counsel for the respondent has not seriously contested this point in the appeal. His principal objection is that the order appealed against, i.e. the order for certiorari quashing the writ of fi. fa., is an interlocutory order and therefore the appeal should have been filed within fourteen days of the date of the said order as provided by rule 10 (1) of the Supreme Court Rules, 1962.8 Eventually counsel conceded that an order for certiorari is a final order, and therefore the appeal was filed in time and is properly before the court. That leaves us with the main question of whether or not an application for extension of time must be made on notice. Since it appears that there is some division of opinion on this subject, we think it proper to deal with it in some detail and examine some of the decisions on it.
The identical question was raised and discussed in State v. Asantehene’s Divisional Court B1; Ex parte Kusada9; but the decision in the case did not turn principally upon that issue. That was also an appeal in a certiorari matter. The order sought to be quashed had been made ten years before the date of the application for the order for certiorari; no application for extension of time supported by affidavit was made prior to the application for extension of time and the High Court granted it. At the hearing of the application for certiorari and also on appeal, counsel for the respondent to the application objected to the jurisdiction of the High Court to entertain the application since there had been no formal application for extension of time within which to apply for leave, and since no notice of oral application for extension of time was given to the respondent. Korsah C.J. was of opinion that a formal application for extension of time was necessary before the High Court could judicially exercise the discretion given it to enlarge the time. He was not however specific whether notice of the application for enlargement of time is a condition precedent. He said10:
“While it is correct to say that, if the power is conferred, a judge may exercise his discretion, it should be remembered that such discretion should be exercised judicially; if therefore the conditions imposed therewith have not been fulfilled, it is open to the party aggrieved by the exercise of such discretion, to raise the matter in the course of the proceedings, as well as on appeal.”
Crabbe J.S.C. relying on Dankwa v. Fuller,11 was of the view that notice of application for extension of time is necessary only in matters of certiorari, but not in any other case of enlargement of time within which to make any other application to the court, e.g. extension of time within which to appeal, or to file pleadings. He said12:
“But certiorari is a special remedy, and a person who intends to apply to the court for an extension of time must give notice to the person who would be affected if the order or judgment challenged were quashed.”
He cited in full the judgment of Lord Goddard C.J. in R. v. Ashford, Kent, Justices; Ex parte Richley13 to support his view.
Adumua-Bossman J.S.C. on the other hand was of opinion that it is not a well settled rule of procedure that notice is a pre-requisite to an application for enlargement of time. He said14:
“That contention, which raises an important point or question of procedure, is partly well-founded and partly not. It is well-founded in so far as it contends that the correct procedure is to give notice of the intended application for extension of time to the respondent. The point was directly dealt with by Lord Goddard C.J. in R. v. Ashford, Kent, Justices: Ex parte Richley [1955] 2 All E.R. 327, where he stated as follows . . .”
Here the learned judge reproduced the aforesaid judgment of Lord Goddard C.J. in full, and continued15:
“The learned Lord Chief Justice did not, however, add that in default of giving notice the proceedings become fatally defective or a nullity, and indeed authority is against the proposition. The authority is Bradshaw v. Warlow (1886) 32 Ch.D. 403, C.A., a case where the Court of Appeal dealt with the general principle governing applications outside the prescribed period and Cotton L.J. enunciated the rule of practice as follows: ‘But where a motion or an appeal can be brought on, and it is objected that it is out of time, the [applicant or] Appellant can always apply at the same time for an extension of time. But then the Respondent ought to have notice that such an application will be made in order that he may have an opportunity of
adducing evidence on the question whether an extension of time should be permitted.’ Passing on to deal with what should be done when no notice has been given, he stated as follows: ‘In the present case no notice was given of an intention to apply for such an indulgence, and we therefore asked the Respondent whether he wished the case to stand over for the purpose of bringing evidence on the point.’ It appears therefore that the respondent’s right to adduce evidence against the grant of the indulgence is preserved to be exercised by him at the earliest opportunity. The same authority is, however, against the respondent’s counsel’s argument
that an oral application for extension of time at the hearing of the formal motion for leave is incompetent.”
He then referred to the opinions of Lindley and Lopes L.JJ. in the case last cited and continued16:
“In the light of that authority it appears to me that notwithstanding that the learned judge had granted the ex parte application for an extension of time and the pre-requisite leave, it was still open to the respondent at the first available opportunity to apply to exercise his undoubted right of adducing evidence to show or establish how in the particular circumstances of the case the applicant was not entitled to the indulgence of an extension of time, and apply for the discharge of that order. He had that opportunity as from the date of service of the motion for certiorari right up to the date when the parties appeared before the court on that motion, on which occasion he raised the point that leave was wrongly granted.”
Order 64, r. 6 gives the High Court discretion to enlarge
“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.”
Where a statute or an order of court appoints or fixes the time within which a person may do an act or take proceedings, it thereby confers upon the party a privilege which he may exercise as of right within the appointed or fixed period. Once the time expires, the right is lost. The loss by one party of his right in this regard, ensures to the other party, unmolested enjoyment of any right he has acquired from the matter, e.g. the judgment which his opponent seeks to have vacated. That other party therefore who would be affected if the application sought by his opponent is granted has a right to be heard in opposition to the application for extension of time, and it will be unjust and inequitable if the court should make an order affecting the right which has accrued to him without first hearing him. In order that a court can judicially exercise discretion in favour of an applicant for an enlargement of time who had a right but had lost it, all the facts in favour of, as well as all the facts against, the suppliant for the favour of the court must be before the court. It is only when the other party is also before the court that a judicial exercise of the court’s powers of discretion, if any, can be just and equitable, i.e. judicial, but not if the court should hear only one side and not the other. Therefore the person whose legal rights or whose position will be affected by the grant of the favour sought, must be heard. This rule applies to all applications for the exercise of a court’s discretion except where a statute provides otherwise, or where no person other than the applicant himself would be affected by the grant of the indulgence sought.
The case of Bradshaw v. Warlow17 cited is no authority for saying that notice is not a pre-requisite for application for an enlargement of time made after the expiration of the time allowed by law or by order of a court. The opinion of the Lord Justices in that case properly construed shows that in their view notice of such an application is a condition precedent to vesting the court with jurisdiction to entertain the substantive matter be it appeal or certiorari. For example Cotton L.J. in the course of his opinion said18:
“I think the view taken by the Vice-Chancellor on this point was erroneous, and that it was not
necessary to make a substantive application for an extension of time. The case of ordinary appeals is very different. A previous application is there generally necessary, because the appeal cannot be set down for hearing if it is out of time. But where a motion or an appeal can be brought on, and it is objected that it is out of time, the Appellant can always apply at the same time for an extension of time. But then the Respondent ought to have notice that such an application will be made in order that he may have an opportunity of adducing evidence on the question whether an extension of time should be permitted.”
We interpret this to mean that notice is necessary for an application for an extension of time, and that the notice may be given simultaneously with the substantive matter.
The rule of practice that an application for an enlargement of time after the expiration of the time limited for doing an act or taking proceeding will not be given upon an ex parte application is made definite in the short judgment delivered by James L.J. in the English Court of Appeal in which Baggallay and Brett LL.J. concurred, in In re Lawrence; Evennett v. Lawrence.19 That was a case where application was made for leave to appeal after the time limit for bringing an appeal had expired. His lordship said20:
“I think that leave ought not to be given ex parte. The Respondents may have some good ground of objection, and they ought not to be put, in the first instance, to the expense of preparing for the hearing of the appeal. You must serve notice of motion asking for leave to appeal.”
This decision of the English Court of Appeal was followed by the West African Court of Appeal in Absi v. Mends21 where the point was raised whether an order for an extension of time within which to appeal made upon ex parte application was effective. Macquarrie J. (Strother Stewart J. concurring) said,22 “In my opinion, such an order affecting both parties could only be made on notice to the respondent so as to give him an opportunity of objecting.” And Brooke J. also said23:
“I adopt the view that the order granting extension of time was made ex parte and for this reason was ineffective. Evennett v. Lawrence 46 L.J.Ch. 119 is clear on the point that no such application can be entertained ex parte. The order would affect both parties and the other side must be given an opportunity of objecting which in this case was not afforded to the respondent. The rules of Court governing appeals must be strictly observed.”
The cases we have referred to so far, both English and Ghanaian, deal with applications for extension of time within which to appeal. We will now refer to the only known decision which deals specifically with applications for extension of time within which to apply for leave to apply for an order of certiorari. But first we must observe that our Order 59, r. 3, which prescribes the time within which to apply for leave to make application for an order of certiorari is a reproduction of Order 59, r. 4 of the English Rules of the Supreme Court, (see the Annual Practice 1952, p. 1306) and our Order 64, r. 6 giving the High Court power to enlarge time is a reproduction of Order 64, r. 7 of the English Rules of the Supreme Court, (see the Annual Practice 1952, p. 1371). That case is R. v. Ashford, Kent, Justices; Ex parte Richley.24 The full judgment of Lord Goddard C.J. on the point is as follows:
“There is one matter on which I want to say a word of general application with regard to applications for leave to move for orders of certiorari. R.S.C., Ord. 59, r. 4 (2), provides that motions for certiorari must be made within six months of the making of the order which it is sought to quash. The court has power, of course, to extend the order, and the present case is one in which it would be right to apply for the order to be extended. But where a person intends to apply to the court for an extension of time he must give notice to the person whom he would serve in the ordinary way as one who would be affected if the order challenged were quashed, that he intends to apply for an extension because the person affected has a right to be heard and to object to such an extension. He very likely has what I will call a vested interest in the upholding of the order. In the same way as if you go to the Court of Appeal out of time you have to give notice of motion for the time to be extended and as you have to do so in this court when justices have not stated a case within the requisite time, so, if you are going to move for certiorari out of time, you must give notice to the person who would be made in the ordinary way a respondent to the motion in order that he may be heard as to whether or not it is a fit case in which to extend the time.”
In Dankwa v. Fuller25 van Lare Ag.C.J., Granville-Sharp J.A. and Adumua-Bossman J. (as he then was) concurring, held that:
“Rule 129 (1), under which the appellate court may extend time in which to fulfil the requirements of rule 126 (2), is silent as to whether notice shall be given to the other side when granting extension of time. Although judges normally direct notice, there is no binding order requiring such notice to be given. In the absence of express enactment I am of the opinion that the Land Court is not bound to direct service or notice on the respondent when granting application for extension of time although it is desirable that it shall do so; nevertheless it is my view that the Land Court is competent to entertain such an application ex parte.”
The rules referred to are the Native Courts (Ashanti) Procedure Rules,26 now repealed. We feel
compelled to point out that like the said rule 129(1), all the rules of court upon which the cases cited above, both English and Ghanaian, were decided, are silent as to whether notice shall be given to the other side of an application for extension of time made after the expiration of the time limit fixed. Such silence is therefore no justification for violating a well established rule of practice which is now a rule of law,
That case, Dankwa v. Fuller (supra) is distinguishable from the cases we have referred to which lay down the rule of law we are considering. In that case, a person aggrieved by a decision of a Native Appeal Court in Ashanti, filed his notice of intention to appeal as provided by regulation 124 of the Native Courts (Ashanti) Procedure Regulations.27 His appeal therefore became pending in the Land Court; he thereupon fulfilled within the one month allowed, all the conditions of appeal laid down in regulation 126(2) save the filing of the grounds of appeal. He however obtained an extension of time ex parte, and filed the grounds. The position in that case is therefore exactly the same as that of an appellant from the Divisional Court, or Land Court to the former West African Court of Appeal, or the Court of Appeal, or from the High Court to this court, who filed his appeal within time but failed to fulfil one or other of the conditions of appeal within time. Now once an appellate court is seised of the case, it can, even though any of the conditions of appeal were fulfilled out of time, and without extension of time being granted, hear the appeal on such terms as it may consider just. In the case of this court it can entertain such an appeal by virtue of sections 12 and 13 of the Courts Act, 1960,28 which are as follows:
“12. Subject to the provisions of the next section, the Supreme Court shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal prescribed by rules of Court.
13. Notwithstanding anything to the contrary in any other provision of this Act, the Supreme Court may entertain any appeal from any court on any terms which it may think just.”
In the case of the Court of Appeal by virtue of sections 7 and 8 of the Court of Appeal Ordinance29; in the case of the West African Court of Appeal by virtue of sections 7 and 8 of the West African Court of Appeal Ordinance,30 now repealed, and in the case of the Divisional Court (Land Court) by virtue of sections 41 and 42 of the Courts Ordinance,31 now repealed. Sections 7 and 8 of the West African Court of Appeal Ordinance, now repealed, are identical with sections 12 and 13 of the Courts Act, 1960, and the sections of the other Ordinances referred to are in similar terms. Upon this principle the West African Court of Appeal held in Botchway v. Nassar32 that where an appellant fails to fulfil the conditions of appeal within the time allowed, and even though he has, after the expiry of the time, made a misconceived application for the purpose of curing the defect, the court will exercise its powers under section 8 in order to secure that substantial justice is done. But in Kudiabor v. Kudanu33 it refused to entertain an appeal because application for leave to appeal was made three months out of time. Deane C.J. in the course of his judgment stated the principle as follows34:
“If therefore this preliminary objection were that one of the conditions of appeal laid down by the Provincial Commissioner had not been complied with this Court would have under section 8 the right to entertain the appeal if it thought it just to do so notwithstanding section 7.”
So too in Oloto v. The Chairman, L.E.D.B.35 where there was no right of appeal due to the value of the subject-matter of the property in dispute, it was held that the appeal was not properly before the court, consequently it could not act upon section 8 of the Ordinance.
If the Land Court had power in those special circumstances to entertain the appeal even if the grounds of appeal were filed out of time without leave, would it make any difference if the extension of time was granted upon an ex parte application? We do not think it would. And that, in our view, is the ground upon which the decision in Dankwa v. Fuller can be supported, but it cannot be regarded as laying down a general rule of law on the point with which we are here concerned.
We would restate the rule of law as follows: Application for extension of time made after the expiration of the time limit allowed, cannot be granted upon an ex parte application, unless there is no person apart from the applicant who would be affected by an order made upon that application, or unless it is so provided by rules or by an order of court.
The application for enlargement of time in this case having been made without notice to the appellants who would be affected by an order made thereon, the grant thereof is void and ineffective. The respondent therefore was not properly before the High Court. It is still open to him to apply for an enlargement of time or to pursue his remedy by other proceedings.
For the reasons stated, we allow the appeal, set aside the order of certiorari including the order as to costs, as made without jurisdiction. The appellants will have their costs in the court below assessed at £G10 10s. and their costs in this court fixed at £G57 2s. 6d.
Court below to carry out.
DECISION
Appeal allowed.
N.A.Y.
