HIGH COURT, ACCRA
DATE: 19TH FEBRUARY, 1962
BEFORE:OLLENNU J.
JUDGMENT OF OLLENNU J.
The only rules which apply to the initiation of appeal proceedings to the Supreme Court are the Supreme Court Rules, 1957, therefore it is to those rules that we must look for authority, if any, to exercise jurisdiction in this matter.
Now the powers of the Supreme Court and of the High Court to enlarge time in matters connected with interlocutory proceedings for appeal from the High Court to the Supreme Court are given expressly by rule 11 (1) and implicitly by rule 11 (4). Rule 11 (1) says: “Subject to any law for the time being in force no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision, unless the court below or the court shall enlarge the time.”
and rule 11 (4) 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, etc.”
Thus by rule 11 (1) the powers of the Supreme Court or of the High Court to enlarge time are limited to the “time within which appeal may be brought”; similarly rule 11 (4) also limits it to the “time prescribed within which an appeal may be brought.” The question is what constitutes bringing an appeal? Does application for special leave to appeal constitute bringing an appeal? Rule 11 (3) defines what is meant by “bringing an appeal”. It says: “11 (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”, i.e. the registry of the High Court. Application for special leave to appeal therefore does not constitute
“bringing an appeal”.
That takes us back to rule 10 (2) which shows that where an appeal lies by special leave only, the right to bring an appeal does not accrue until the date when special leave to appeal is granted, whilst in the case where an appeal lies as of right, the right to bring the appeal accrues on the day of the final judgment or order against which it is sought to appeal.
The true interpretation of rule 10 (2) therefore is: that in cases where appeal lies by special leave only, appeal proceedings are initiated by filing application for special leave to appeal, and that can be done only within fourteen days of the date of the judgment or order; and that it is only when that first step has been taken towards the acquisition of a right to appeal that the court can become vested with jurisdiction to entertain an application for enlargement of time. In this respect filing application for special leave to appeal is on the same footing as filing notice in a local court within one month of delivery of judgment of intention to appeal; if the notice of intention to appeal is filed within the one month and default is made in fulfilling the statutory conditions of appeal, the appellate court would be vested with jurisdiction to enlarge the time for fulfilling the conditions of appeal, but if a would-be appellant
[p.115] of [1962] 1 GLR 114
fails to file the notice of his intention to appeal and the one month expires, the appellate court would have no jurisdiction to grant him extension of time within which he could file the notice, since the Local Court Procedure Regulations have no provision for enlarging time within which the notice of intention to appeal may be filed: see Muffat v. Kpeshie II (1952) 14 W.A.C.A. 44.
For these reasons I am in entire agreement with the ruling of Smith, J., in Appardu v. Angu II [1960] G.L.R. 195.
I hold that where an appeal lies by special leave only, the would-be appellant lost his right to apply for special leave to appeal if he failed to file an application for special leave to appeal within fourteen days of the judgment or order, consequently no right of appeal accrued to him, and the High Court has no jurisdiction to entertain an application for extension of time within which to apply for special leave.
(Aryeetey v. Smith, Ollennu, J.)
