THOMPSON vs. MOUNEKE [1999-2000] 2 GLR 26

THOMPSON v MOUNEKE

[1999-2000] 2 GLR 26

Division: COURT OF APPEAL, ACCRA

Date: 11 APRIL 2000

Before: WOOD, BROBBEY AND OWUSU-ANSAH JJA

Practice and procedure—Appeal—Extension of time—Extension of time not permitted by CI 19 after six months from date of decision appealed against—Judgment of High Court against application delivered on 20 May 1999—No appeal filed by applicant within statutory three months—Application for extension of time to appeal to Court of Appeal filed at High Court on 30 September 1999—Application refused by High Court on 22 December 1999—Application repeated in Court of Appeal on 23 December 1999—Whether application competent—Whether extension of time to appeal to Court of Appeal should be granted—Court of Appeal Rules, 1977 (CI 19) rr 9(7) and (8) and 28.

It is provided by the Court of Appeal Rules, 1997 (CI 19), rr 9(7) and (8) respectively that:

“(7). Notwithstanding rule 28 of these Rules, no application shall be made to the Court for extension of time within which to appeal after six months from the date of the decision appealed against

(8). For the purposes of subrule 4 of this rule and rule 28, where a person has applied to the court below for extension of time within which to appeal and after a period of not less than one month the Court below fails or refuses to grant the application, the applicant may subject to sub-rule (95) of this rule move the court to determine the application”

It is also provided by CI 19, r 28 that:

“Subject to these Rules and to any other enactment, where under any enactment an application may be made either to the court below or to Court,

[p.27] of [1999-2000] 2 GLR 26 it shall be made in the first instance to the court below, but if the court below refuses to grant the application, the applicant shall be entitled to have the application determined by the Court.”

On 28 May 1999 judgment was delivered against the applicant in a suit filed at the High Court, Accra against him. The applicant did not appeal from this decision within the time prescribed under the Court of Appeal Rules, 1997 (CI 19). However on 30 September 1999 he filed an application for extension of time within which to appeal to the Court of Appeal at the High Court. The application was fixed for hearing on 11 October 1999 but no decision of ruling was given on the matter until 22 December 1999 when the High Court refused the application for extension of time. Whereupon the applicant on 23 December 1999 repeated the application for extension of time at the Court of Appeal. At the hearing of the application, counsel for the respondent raised a preliminary point of law to the effect that the application was out of time and incompetent. Counsel submitted in support of his preliminary objection that in accordance with the provisions of rule 9(7) of CI 19 the application should have been filed in the Court of Appeal on or before 28 November 1999, that is six months from the date of the judgment which he sought to appeal against. In response, counsel for the applicant contended further that the application was competent. Counsel contended that, he submitted the application to the High Court pursuant to the provisions of rule 28 of CI 19, and that he was by virtue of the provisions of rule 9(8) of CI 19 within time because until the High Court had failed or refused to grant the application, his further right to come to the Court of Appeal remained.

Held, upholding the preliminary point of law: the Court of Appeal had no power under rule 9(7) of the Court of Appeal Rules, 1997 (CI 19) to grant any extension of time after the six month period prescribed under that rule had expired. Consequently, an applicant for extension of time within which to appeal had to be vigilant to ensure that he was not in breach of rule 9(7) of CI 19, whether or not the court below gave its ruling within the prescribed period. The operative words under rule 9(7) of CI 19 were “fails” or “refuses” and in that context “to fail” presupposed inaction by the court whilst “to refuse” implied a positive act. Hence, the applicant for extension of time could make a repeat application to the Court of Appeal under rule 9(8) of CI 19 after one month of filing his application in the court below, whether or not there had been a refusal of the application by that court, and even if that would amount to a duplication of the application. In the instant case, the applicant failed to do that, with the consequence that his repeat application for extension of time filed long after the six month period had expired was incompetent.

APPLICATION by the defendant-applicant for extension of time within which to appeal from the judgment if the High Court, Accra wherein counsel for the respondent raised a preliminary point of law that the application filled after the six months period prescribed under rule 9(7) of the Court of Appeal Rules, 1997 (CI 19)

[p.28] of [1999-2000] 2 GLR 26 was out of time and therefore incompetent. The facts are sufficiently set out in the ruling of Owusu-Ansah JA.

Nathaniel Myers for the applicant.

Laryea for the respondent.

Owusu-Ansah JA. Delivered the first ruling at the invitation of Wood JA. This is a motion on notice by Nathaniel Myers for and on behalf of the applicant herein praying this court “for extension of time within which to appeal and for a stay of execution pending the hearing of the said application on the grounds contained in the accompanying affidavit and on such other grounds as to this Court may deem fit.”

The affidavit in support of the motion deposes to the fact that on 28 May 1999 the High Court, Accra delivered a judgment against the defendant-applicant (hereinafter referred to as the applicant). According to the applicant when he was served with entry of judgment, he consulted counsel for advice but had to travel at short notice, only to find on his return that his solicitor had filed an application to pay the judgment debt by instalment. The applicant states that he was aggrieved by the said judgment and, accordingly, wanted to appeal. However, he was informed by his solicitors that he was out of time. The judgment was delivered on the 28 May 1999.

The motion on notice for extension of time within which to appeal was filed in the court below within the requisite period on 30 September1999 and fixed for hearing on the 11 October 1999. Be that as it may, no decision or ruling was given on the matter until the 22 December 1999. It went against the applicant. On 23 December 1999, the instant repeat application was filed in this court.

Counsel for the respondent raised a preliminary point of law, arguing that the application was out time and incompetent. 8503 Counsel submitted further that the application should have been filed in the Court of Appeal on or before 28 November 1999, ie within a period of six months from the date of the judgment on 28 May 1999 in accordance with the provisions of rule 9(7) of the Court of Appeal Rules, 1997 (CI 19) which provides that:

“(7) Notwithstanding, rule 28 of these Rules, no application shall be made to the Court for extension of time within which

[p.29] of [1999-2000] 2 GLR 26 to appeal after six months from the date of the decision appealed against.”

In response thereto, counsel for the applicant submitted that his application was well founded. He referred to rule 28 of CI 19 which provides:

“28. Subject to these Rules and to any other enactment, where under any enactment an application may be made either to the Court below or to the Court, it shall be made in the first instance to the court below, but if the court below refuses to grant the application, the applicant shall be entitled to have the application determined by the Court.”

Accordingly, says counsel, he submitted the application to the court below in the first instance. Thereafter, the further application for extension of time was made to this court under rule 9(4) of CI 19. This rule states:

“(4) No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.”

Counsel for the applicant submits further that he was therefore within time because until the court below had failed or refused to grant the application, his further right to come to this court would remain; his right is in effect suspended. Counsel referred to rule 9(8) of the CI 19 which provides:

“(8) For the purposes of subrule 4 of this rule and rule 28, where a person has applied to’ the Court below for extension of time, within which to appeal and after a period of not less than one month the Court below fails or refuses to grant the application, the applicant may subject to sub-rule (5) of this rule, move the court to determine the application.”

(The emphasis is mine.) The operative words in this rule are “fails” or “refuses.” In this context, in my view, “to fail” presupposes inaction, whereas “to refuse” implies a positive act. According to the Oxford Reference Dictionary: “to fail” means “not to succeed, to disappoint, to let down to neglect; to forget, to be unable.” “To refuse”, on the other hand, is “to reject, to say or show that one is unwilling to accept, give or do; to indicate unwell-

[p.30] of [1999-2000] 2 GLR 26 ingness, not to grant a request made.” For this reason, I find myself regretfully unable to share the views expressed by the learned counsel for the applicant in this connection. It could not have been the intention of the legislature in the fullness of its wisdom, to grant an open-ended, almost limitless period within which to make such an application for extension of time. For that, in my view, would be counter-productive. Therefore there must be a time limit. When an application has been made to the court below in the first instance, one cannot wait indefinitely for the ruling of the court below before a repeat application is made to this court.

In my judgment the court below is enjoined, on the strict interpretation of these rules, to grant or refuse the application within the time limits. And an applicant for extension of time must keep his eyes open to ensure that he is not in breach of rule 9(7), whether or not the court below gives its ruling within that period. In other words, the application to this court for extension of time can only be made after one month if the court below fails or refuses to grant it in accordance with rule 9(8) of CI 19.

However, a repeat application to this court must be made in compliance with rule 9(7) of CI 19, whether or not there has been a refusal of the application by the court below. No party has unqualified right to an extension of time. Otherwise it would defeat the purpose of the rules which is to provide a reliable time table for litigants.

It is appreciated that the ultimate aim of the judicial process is to effect a compromise between law and society, between the technicalities of legal science and the requirements of social justice. But in this case the court has no power or discretion to interfere with the relevant statutory provision, ie rule 9(7) of CI 19.

The preliminary point of law raised by counsel for the respondents is well founded and must be upheld.

Brobbey JA. I also agree that the motion fails as being without merit. In terms of rule 28 of the Court of Appeal Rules, 1997 (CI 19), no application can be made in the appellate court without first applying to the trial court. In anticipation that there could be delays or frustrations in the trial court, what should be done while the application is pending has been spelt out by rule 9(8) of CI 19 which provides that:

[p.31] of [1999-2000] 2 GLR 26

“(8) For the purposes of subrule (4) of this rule and rule 28, where a person has applied to the court below for extension of time within which to appeal and after a period of not less than one month the court below fails or refuses to grant the application, the applicant may subject to sub-rule (5) of this rule move the Court to determine the application.”

In the instant case, the judgment was given on 28 May 1999. The applicant did not appeal within the statutory three months. On 30 September 1999, he applied to the lower court for extension of time within which to appeal; because of the provisions of rule 9(7) of CI 19, he knew that no application for extension of time could be made six months from 28 May 1999. He should therefore have complied with rule 9(8) of CI 19 by applying to this court within one month after filing the application in the lower court. Even if that would have amounted to duplication of applications, that was the procedure which was required to be followed. He failed to do that. Instead, he filed his application in this court long after the six month period had expired, ie on 23 December 1999.

The statutory provisions referred to in this ruling make no room for this court to grant any extension of time after the expiration of six months. The instant application for extension of time before this court is consequently incompetent, and should be dismissed.

Wood JA. I also agree.

Preliminary point of law upheld.

Application dismissed.

SA