REPUBLIC vs. ESHUN AND ANOTHER [1999-2000] 1 GLR 324

CASES REFERRED TO

Ababio v The Republic, Court of Appeal, Accra, unreported.

NATURE OF PROCEEDINGS

APPLICATION by the Republic to the Court of Appeal for extension of time to appeal against the decision of the Western Regional Tribunal delivered on 23 June 1993 acquitting and discharging the respondents on the offences of conspiracy to steal and stealing the sum of ¢1.6 million from their employers brought almost four years after an appeal by the Republic from that decision had been dismissed by the Court of Appeal following a preliminary objection by the respondents. The facts are sufficiently stated on the ruling of Wood JA.

COUNSEL

M K Afriyie, Principal State Attorney, for the Republic applicant.

P K E Donkor for the respondents.

JUDGMENT OF WOOD JA.

By this motion, the Republic-applicant seeks an extension of time within which to appeal against the decision of the Western Regional Tribunal delivered on 23 June 1993 by which the respondents were acquitted and discharged on the offences of conspiracy to steal and stealing the sum of ¢1.6 million, property of their employers—the State Insurance Corporation.

The affidavit in support of the application, which is brought under section 11(6) of the Courts Act, 1993 (Act 459) discloses the reason for the delay. The said reason as is contained paragraph(5) of the said affidavit states: “that the result of the trial was not brought until 2 August 1993.” That still does not explain why the delay for almost four years. It is when one reads the affidavit in opposition that one gets the full facts, particularly the reason for the inordinate delay.

Frankly, I think counsel for the Republic had not been candid to this court. It is the duty of counsel in applications of this kind to make a full and frank disclosure of all essential facts related to the application in order that the court may, particularly since this is a criminal matter, do justice to all the parties, especially the respondents who have after a full trial been acquitted and discharged by a court of competent jurisdiction.

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Indeed, I am of the view that in applications such as the instant case, an onerous responsibility rests on the applicant. What then are these crucial matters which the applicant as an officer of this court ought, in all fairness to the court, to have laid before this court? They are contained in paragraphs (6), (7), (8), (9), (10), (11), (12) and (13). I would for my part reproduce them:

“(6) That soon after the judgment was given, Mr Anthony Rexford Wiredu, then assistant state attorney, Attorney-General’s Department, Sekondi who was at the tribunal when the judgment was given on 23

June 1993 applied for a copy and indicated his intention to appeal against same.

(7) That he went to sleep and later on 2 August 1993 filed a petition of appeal to that effect. (A copy of the petition of appeal is attached and marked as exhibit El.)

(8) That on 22 May 1996 Mr M K Afriyie, Principal State Attorney, and the deponent herein filed

additional grounds of appeal to that effect (copy is attached and marked as exhibit VE 1).

(9) That the appeal came off for hearing on 3 March 1997, coram Wood, Benin and Baddoo JJA . . .

(10) That at the hearing of the appeal my counsel, P K E Donkor Esq raised a preliminary point in law that the appeal was filed out of time and that the appellants ought to have sought leave before filing the appeal in accordance with section 11(6) of the Courts Act, 1993 (Act 459) and since no leave was sought there was no appeal pending before the court and therefore the case should be dismissed.

(11) That the judgment having been given on 23 June 1993 and the appeal filed on 2 August 1993, the

appellants were out of time and therefore the appeal filed without leave was bad in law.

(12) That the submission by my counsel was upheld and the appeal was dismissed in limine. (A copy of the order of the court is attached and marked as exhibit VE 3).

(13) That the appellants were represented at the hearing on 3 March 1997 by Mr Afriyie, the deponent herein.”

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The undisputed facts therefore, are that the applicants on 2 August 1993 filed a petition of appeal followed by the filing of additional grounds on the same, two and a half years later. The appeal was heard and dismissed on legal grounds. To be precise on a preliminary legal point raised by the respondents. Then one of the strongest arguments made in opposition to the application described as being “without merit, vexatious and abuse of the legal process”, is that once the appeal had been heard and dismissed on the legal ground that the petition was filed out of time and consequently, there was no valid appeal before the court, the applicant could not come back and seek for an extension of time to have the matter reheard. Of course two other arguments were also raised in opposition. These are that: (1) The delay in bringing the application was inordinate; and (2) the applicants failed to comply with the mandatory provisions of rule 40(2) of the Court of Appeal Rules, 1997 (Cl 19) which required that copies of the petition and notice of appeal be sent to the registrar.

The applicant counsel’s answers to these submissions may be summarised as follows:

(1) The appeal was dismissed upon a preliminary point only and not on the merits. The points argued then is that leave ought to be granted to enable it be determined on the merits.

(2) The failure to comply was a mere administrative blunder which ought not to affect the validity of the application.

I will deal with this last point first. Although counsel did concede, as argued by his opponent, that the said provisions are mandatory in the true sense of the word, he would not subscribe to that view. Rule 40(2) of Cl 19 states: “Any person making an application for an extension of time shall send to the Registrar, together with the proper form of the application, notice of appeal duly completed.”

In my view, the use of the word “shall” is not mandatory but regulatory in the sense that it is understood in construction or interpretation of statutes. And to the extent that non-compliance would make the application incompetent or invalid. The rule, to my mind spells out the procedure to be followed in applications of that kind. As between the word “shall” and “may” in order to express the legislative intent, the draftsman had very little to choose from, “may”

[p.329] of [1999-2000] 1 GLR 324 would have given applicants the liberty to follow or not to follow the rule; hence the use of the word “shall”, for it clearly is the law maker’s intent that the rule be followed. It is a wise rule and I would recommend and advocate its strict observance. But I am certainly of the view that non-compliance is not fatal to the application. It is a mere irregularity that may be remedied.

But the more pertinent question is that the appeal having been dismissed on a preliminary legal point, is the losing party entitled to have it reheard on the merits? Thus necessitating an application for extension of time (within which to appeal) to enable them file the necessary appeal. Differently stated, are they entitled to argue that the dismissal in limine does not amount to a dismissal of the appeal and so did not dispose of the appeal in its entirety?

I would not think so. An appeal may be disposed of on purely legal grounds and such grounds may be taken at any stage of the hearing of the substantive appeal. That is to say, at the onset as a preliminary point in law or at any other stage of the hearing. In limine simply means “at the onset.” A preliminary legal point is a good and valid point in law on which to determine any matter, be it civil or criminal. Put in other words, the dismissal of an appeal on a preliminary legal point disposes of the pending appeal. The record, especially exhibits VE2 and VE3, shows beyond every shadow of doubt that criminal appeal No 38/93 was heard and determined on 3 March 1997. It was dismissed and that settled the matter finally between the parties. Consequently, the applicants are not entitled to another or fresh hearing of the appeal even on the merits. They are therefore not entitled to apply for extension of time to enable them do so. On this ground alone, the application ought to fail and is hereby dismissed.

But assuming, I am in error and they are so entitled, the other critical question is: Is there any merit in the application? This court speaking through Benin JA in Ababio v The Republic, Court of Appeal, Accra, unreported, criminal motion 31/96, has spelt out some of the grounds upon which extension of time may be granted. It also lays down the factors that must be proved before an applicant would meet with success. The reasons why this application fail are: First, it has taken them as long as three months after the dismissal of the appeal before filing in this instant application. When we bear in mind that the decision they intend to appeal against was itself given

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as far back as 23 June 1993, then we clearly see how tardy they have been with regard to these proceedings. I think it is important in applications of this kind that an applicant demonstrates that in all the circumstances of his particular case that he has acted with much promptitude. But such is not the case in this instant application. No wonder the respondent’s counsel describes their conduct as being “vexatious” and being in “bad faith.” Secondly, they have not advanced any good reason whatsoever for the inordinate delay, let alone a good and sufficient or substantial one. What I mean is this: They have not given substantial reasons nor shown why, given the disadvantageous position in which they found themselves, it took them as long as three months before bringing this instant application. Thirdly, counsel failed to demonstrate where the trial tribunal went wrong in its findings and final conclusions. In sum then, no substantial reasons have been advanced as to why we ought to take the unusual step of extending the time within which to appeal some four years after the verdict has been given.

In all the circumstances of this case, we find no merit in the application and the same is dismissed.

JUDGMENT OF BROBBEY JA.

This is a motion for leave to appeal out of time. The substantive appeal itself came before this court on 3 March 1997. A legal objection was raised against the appeal on the basis that the appeal had been filed out of time. The applicants herein had no answer to that objection. The appeal was therefore dismissed in limine because in law there was no proper appeal then pending before the court which could have been heard.

The applicants then filed the instant motion for leave to appeal out of time. For two main reasons this cannot be sustained. In the first place, the appeal was dismissed. This court then became functus officio. It has no jurisdiction to rehear the appeal which it has already dismissed. There is therefore no point in considering leave to file any appeal in this court since that appeal cannot be heard here. It would have been different if the dismissal was challenged upon leave being granted to apply for extension to appeal. No such challenge was made and no such order made. In the second place, the only course of action open to the appellant following the dismissal was to appeal or file a motion for review. None of these was followed by the appellant. The instant motion cannot be supported by the Court of

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Appeal Rules, 1997 (Cl 19) as amended by Court of Appeal (Amendment) Rules, 1998 (CI 21) or any procedure known to this court.

There is no merit in the motion and should be dismissed.

JUDGMENT OF BENIN JA.

I agree.

DECISION

Application dismissed.

EAA

Endnotes

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