TRABOULSI & CO. vs. PATERSON ZOCHONIS & CO., LTD. [1973] 1 GLR 133

CASES REFERRED TO

(1) Botchway v. Nassar (1946) 12 W.A.C.A. 23.

(2) Buabeng v. Forkuo, Court of Appeal, 2 February 1970, unreported; digested in (1970) C.C. 59.

(3) Adjowei v. Yiadom II, Court of Appeal, 26 March 1970, unreported; digested in (1970) C.C. 51.

NATURE OF PROCEEDINGS

APPEAL against a ruling of the High Court dismissing the appellants’ application for enlargement of time to fulfil conditions of appeal. The facts are sufficiently set out in the judgment of Azu Crabbe J.S.C.

COUNSEL

Miss A. A. Ayisi for the appellants.

Hammond-Laing for the respondents.

JUDGMENT OF AZU CRABBE J.S.C.

This appeal arises from the refusal of Hayfron-Benjamin J. to grant an application by the appellants for an order for an extention of time within which to fulfill the conditions of appeal.

The facts are that on 20 January 1971, judgment was given against the appellants in the District Court, Accra, and on 31 January 1971, the appellants filed notice of intention to appeal to the High Court. The appellants allege here that due to an oversight they were unable to fulfil the conditions of appeal within seven days as required by the rules, and that on 21 May 1971, they applied to the district court for an extension of time to enable them to fulfil these conditions. This application was refused. Realising that the application to the district court was misconceived, the appellants repeated their application for an extension of time before the High Court by filing a notice

[p.135] of [1973] 1 GLR 133 of motion on 21 May 1971. This application eventually came before Hayfron-Benjamin J. who dismissed it in the following words:

“Per court: I do not think the lapse of six months since judgment is reasonable. There is no explanation for this delay. The application for an extension of time is dismissed. Costs to the respondent assessed at N¢20.”

Against this ruling of Hayfron-Benjamin J. the appellants have appealed to this court on the following grounds:

“(1) That the learned judge erred in finding that length of time was material to the exercise of his discretion.

(2) The learned judge was in law bound to grant the extension of time.”

Arguing ground (1) of the appeal, Miss Ayisi, counsel for the appellants, has submitted that the learned trial judge was wrong in exercising his discretion because he failed to take into consideration other factors apart from lapse of time. He did not appear, she argued, to have considered the balance of hardship in the matter, and that the respondents could be adequately compensated by costs for any inconvenience caused to them. On the second ground Miss Ayisi referred to Order 64, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and cited Botchway v. Nassar (1946) 12 W.A.C.A. 23 in support of her contention that the defect in the proceedings was a mere technicality, and that the learned judge ought to have granted the application for an extension of time to fulfil the conditions of appeal.

For the respondents Mr. Hammond-Laing argued that the court ought not to interfere with the exercise of discretion by the judge. Secondly he said, the ruling of the district court still stood; it was an interlocutory ruling, and there had been no appeal from it. Mr. Hammond-Laing referred us to Order 58, rr. 3 (4), 5 and 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and submitted that the decision of the district court was final and cannot be re-opened.

In view of Mr. Hammond-Laing’s submission, it is, in my opinion, necessary at the outset to consider the procedure in appeals from the district court to the High Court. Before 1954 civil appeals from the magistrate’s court were regulated in accordance with the rules under Order 53 in the Second Schedule to the Courts Ordinance, Cap. 4. (1951 Rev.). The proviso to rule 1 of Order 53 stated as follows: “Provided always that the Court below in its discretion may extend the time for the fulfilment of conditions of appeal, or the application for final leave to appeal.” There can be no doubt that this proviso expressly conferred power on the magistrate’s court in appeals from its decision

[p.136] of [1973] 1 GLR 133 to the Divisional Court (now High Court) to extend the time for the fulfilment of conditions of appeal. But Order 53 has since been revoked by paragraph 5 of L.N. 140A of 1954, and civil appeals from a magistrate’s court to the High Court are now regulated by rules under Order 58 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). By rule 1 of this Order all appeals are brought by notice, called “the notice of appeal,” filed in the court below, that is, the district court. Rule 3 prescribes the time within which an appeal shall be brought: in the case of an interlocutory appeal fourteen days, and in the case of a final decision three months. Rule 3(3) states, “An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Court below.” In my opinion, subrule (3) means that though the “notice of appeal” is filed in the district court, an appeal is regarded, from the moment of filing, to have been brought to the High Court.

Rule 3 (4) upon which Mr. Hammond-Laing places great reliance reads 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. 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 or to the Court below (in which case the decision of the Court below shall be final) and when time is so enlarged copy of the order granting such enlargement shall be annexed to the notice of appeal.”

Rule 5 of Order 58 also reads:

“The appellant shall within seven days after filing notice of appeal deposit in the Court below the sum of £10 to cover the expense of making up and forwarding the record of appeal, and shall also deposit the sum of £15 or give security therefor by bond with one or more sureties to the satisfaction of the Court below for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant.

Such bond shall be in Form No. 61 of Appendix B.”

Rule 6 of the Order deals with the preparation of the record of appeal in the district court, and its transmission to the registrar of the High Court.

Mr. Hammond-Laing’s argument, if I understand it right, is that the combined effect of rules 3 (4), 5 and 6 is that every step in the appeal,

[p.137] of [1973] 1 GLR 133 after the filing of the notice of appeal, and until the transmission of the record of appeal, must be taken in the district court. With respect, I do not accept this argument. The application before Hayfron-Benjamin J. was for an extension of time to fulfil conditions of appeal, and not for an enlargement of time to bring an appeal. Rule 3 (4) of Order 58 gives the district court co-equal jurisdiction with the High Court to entertain an application for enlargement of time to bring an appeal, and the decision of the district court in that regard is conclusive. This sub-rule relates solely to a would-be appellant who has been dilatory in filing his notice of appeal, and the limitation of time within which he should take steps to put matters right.

The provisions as to conditions of appeal with respect to appeals from the district court to the High Court, are now contained in rule 5 of Order 58 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Under the revoked Order 53 (1) of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), a discretionary power was expressly conferred on the magistrate’s court to extend the time for the fulfilment of conditions of appeal. No such power is conferred by the new rule 5 of Order 58 of L.N. 140A and, in my view, the change in the rules is an expression of an intention to take away that power from the district court.

It is a cardinal principle in the interpretation of statutes and documents that construction is to be made of all the parts together, and not of one part only by itself. This principle enables us to look at Order 64, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to which our attention was drawn by Miss Ayisi. Order 64, r. 6 reads:

“Subject to any provisions to the contrary in these Rules a Court or a Judge shall have power to enlarge or abridge 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. Provided that when the time for … filing any affidavit … or document or doing any act is or has been fixed or limited by any of these Rules … or by any order of the Court or a Judge the costs of any application to extend such time and of any order made thereon shall be borne by the party making such application unless the Court or a Judge shall otherwise order.”

For the purposes of Order 58, r. 21 states that the term “Court” means the High Court in its appellate jurisdiction, and the term “Court below” means the district court from which the appeal is preferred. Order 64, r. 6 contains the only provisions in the rules which confer

[p.138] of [1973] 1 GLR 133 power to enlarge or abridge time. Consequently, if Order 58, r. 5 is read together with Order 64, r. 6, it becomes plain that only the High Court of Judicature has the power to enlarge or abridge time appointed by Order 58, r. 5. In this case, therefore, the district court had no jurisdiction to entertain the appellants’ purported application for enlargement of time to fulfil conditions of appeal. In my view, the district magistrate’s order refusing the application was a nullity, and it had no bearing whatsoever on the application subsequently made by the appellants to the High Court.

The remaining question, and, indeed, the only important issue in this appeal, is the exercise of discretion by the learned judge of the High Court in refusing the application. There is no rule of law that an appellate court, as Mr. Hammond-Laing contends, does not interfere with the exercise of discretion by a trial court, and in Buabeng v. Forkuo, Court of Appeal, 2 February 1970, unreported; disgested in (1970) C.C. 59 where some of the leading authorities were considered, I said as follows:

“It seems to me, having regard to the propositions of law contained in the passages quoted above, that an appellant, who impugns an order made by a judge in the exercise of his discretion, assumes the burden of making the appeal court feel clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in his favour or that there has been a miscarriage of justice. The appeal court will readily reverse the order if it comes to the clear conclusion that the judge did not take the right matters into consideration or give them the right weight.”

In Adjowei v. Yiadom II, Court of Appeal, 26 March 1970, unreported; digested in (1970) C.C. 51, the court said in that case: “In considering whether or not to extend time within which to fulfil conditions of appeal, we think the test ought to be whether refusal by the court to grant the application would result in a failure to do justice.”

In the present case, the grounds upon which the learned judge founded the exercise of his discretion were two-fold; first, that the delay of six months in applying for an extension of time was unreasonable; and secondly, that there had been no reasonable explanation. With respect, I think that the learned judge misapprehended the facts. As regards the delay, it will be noted that notice of appeal was filed in the district court on 29 January 1971, and so the appellants had up to 5 February 1971 to fulfil all the conditions of appeal in pursuance of Order 58, r. 8. An ill-advised application to the district court for an extension of time was refused o 21 May 1971 at one o’clock in the afternoon. The only ground of opposition to the application, as alleged in paragraph (4) of an affidavit by a clerk of the respondents, was that the decision

[p.139] of [1973] 1 GLR 133 of the district court was final and that the High Court had no jurisdiction, and this was the respondents’ stand when the application was partly heard before Abban J. and this was the only point taken in limine by counsel for the respondents. The application was adjourned on 7 June 1971 to 14 June 1971 to enable counsel for the appellants to file the order of the district court, as the learned judge wished to see it. On 14 June 1971, the matter was again adjourned to 17 June 1971, when the application was struck out owing to the failure of the appellants’ counsel to appear in court that day. A notice of motion was filed by the appellants the next day 18 June 1971, and on 5 July 1971, Abban J. restored the application to the cause list, and fixed it for hearing on 12 July 1971. On that day Abban J. recorded the following notes: “Per court: At the request of both counsel let this case be adjourned to 20 July 1971 to be mentioned before another judge.” On 26 July 1971. when the matter eventually came before Hayfron-Benjamin J., counsel for the respondents again raised an objection in limine on the ground of the court’s lack of jurisdiction as alleged in paragraph (4) of their affidavit. Mr. Atta Caesar who appeared for the appellants, stated that the application was under Order 64 of the Supreme [High] Court (Civil Procedure Rules, 1954 (L.N. 140A).

With all due respect to Hayfron-Benjamin J. I think he erred in the first place by unconsciously regarding the judgment of the district court as valid; it was a void decision and nothing really turned on it. In the second place, the learned judge appeared to have overlooked the fact that since 21 May 1971, the application for the extension of time to fulfil the conditions of the appeal had been continuously kept alive till it came before him on 26 July 1971, and on the facts it cannot be said that there had been a delay, much less excessive delay, in bringing the application. Where a judge of first instance misapprehends the evidence in the exercise of his discretion, this will be sufficient justification for interference by the appellate court. Even assuming there was delay in fulfilling the conditions of appeal, I think Botchway v. Nassar (1946) 12 W.A.C.A. 23 is an authority for the proposition 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 appellate court will exercise its powers, if it has any, in order to secure that substantial justice is done. In this case the power is contained in Order 64, r. 6. In Adjowei v. Yiadom II (supra), there was a delay of nearly nine months in applying for an extension of time to fulfil conditions of appeal, but this court reviewed the exercise of discretion by the judge of the High Court refusing an application for an extension of time, so that substantial justice could be done.

In the result, I would allow this appeal and would set aside the ruling appealed from, together with the order as to costs. The costs, [p.140] of [1973] 1 GLR 133 if paid, are to be refunded. The appellants are to have their costs in the court below assessed at ¢20.00, and their costs in this court fixed at ¢81.75. The appellants’ application for an extension of time is granted, and it is ordered that the appellants fulfil the conditions of appeal within seven days. Court below to carry out.

JUDGMENT OF PREMPEH J.S.C.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION Appeal allowed.

Application for extension of time granted.

Appellants to fulfill conditions of appeal within seven days.

S.E.K.