ZAKARI vs. NDUN [1968] GLR 1032

CASES REFERRED TO

(1) Salt v. Cooper (1880) 16 Ch.D. 544; 50 L.J.Ch. 529; 43 L.T. 682; 29 W.R. 553, C.A.

(2) Nye v. Nye [1967] G.L.R. 76, C.A. (full bench).

(3) African Woods Ltd. v. Administrator of Stool Lands [1962] 2 G.L.R. 24, S.C.

(4) Anisminic v. Foreign Compensation Commission [1968] 2 Q.B. 862; [1967] 3 W.L.R. 382; [1967] 2 All E.R. 986; 111 S.J. 374, C.A.

(5) Absi v. Mends (1935) 2 W.A.C.A. 238.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION taken on the grounds that the appeal was not properly before the court. The facts are sufficiently set out in the ruling.

COUNSEL

A. A. Luguterah for the appellant.

E. O. Appiah for the respondent.

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JUDGMENT OF EDUSEI J.

When this appeal came on for hearing before me on 11 November 1968 counsel for the plaintiff-respondent raised the preliminary point that there was no appeal in existence for this court to entertain. Counsel relied on two matters in support of his contention, and before stating his two reasons for his contention I think it is necessary to set out briefly the history of this appeal.

On 7 December 1965, the then Local Court at Yendi (though the appeal has erroneously been described as emanating from the District Court Grade II, Yendi) gave judgment in the above-named case against the defendant and in favour of the plaintiff. On 11 August 1967, the defendant filed an ex parte application in the High Court, Tamale, for an extension of time within which to appeal against the judgment of the Yendi Local Court dated 7 December 1965. The application was granted by Annan J. on 27 November 1967 and the time for appealing was extended to 1 December 1967 and on that same day the defendant filed in the High Court his notice of appeal.

Counsel for the plaintiff-respondent (hereinafter referred to as the plaintiff) contends that there was no case pending before the district court on 1 October 1966 to enable the defendant-appellant (hereinafter referred to as the defendant) to appeal.

His contention was that with the coming into force of the Courts Decree, 1966 (N.L.C.D. 84), on 1 October 1966, the previous courts established under the Courts Act, 1960 (C.A. 9), were abolished, and paragraph 87 (3) of the Courts Decree, 1966, which saved cases pending before the local courts to be continued and concluded by a district court having jurisdiction over the area in which such local court was situated did not apply to the instant appeal because, so counsel argued, there was no case pending before the local court at the time the Courts Decree, 1966, came into force, judgment having been given in the case on 7 December 1965 and therefore the case had been concluded. Counsel for the appellant argued the contrary. Paragraph 87 (3) is in the following words:

“87. (3) Every case pending before a Local Court immediately before the commencement of this Decree shall be continued and concluded by a District Court having jurisdiction over the area in which such Local Court was situated.”

The question to be determined is this: At what stage does a case cease to be pending before a court? My view is that the pronouncement of a judgment in a case does not make that case cease to be pending before the court. I think when a judgment has been satisfied then there is nothing pending before the court, but until a judgment is satisfied, the trial court has power to decide certain matters in respect of the case, for instance, to hear applications for a stay of

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execution, and also to hear applications for execution of the judgment. In these circumstances, I will say that the case was still pending before the court below on 1 October 1966. I am fortified in this view by what Jessel M.R. said when he was considering the meaning of “a cause is still pending” under section 4 (7) of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict., c. 66). This is what the learned eminent judge said in Salt v. Cooper (1880) 16 Ch.D. 544 at p. 551, C.A.:

“A cause is still pending even though there has been final judgment given, and the Court has very large powers in dealing with a judgment until it is fully satisfied. It may stay proceedings on the judgment, either wholly or partially, and the cause is still pending, therefore, for this purpose, as it appears to me, and must be considered as pending, although there may have been final judgment given in the action, provided that judgment has not been satisfied.”

The phrase “shall be continued and concluded” in my opinion does not present any difficulty. It simply means this: any case which has not been disposed of, in the sense that a judgment in respect of that case has not been pronounced by the local court before 1 October 1966, or a judgment had been pronounced by the local court before 1 October 1966, but not satisfied, was a case pending before the appropriate local court. This is to say that immediately before 1 October 1966 the above-named case was pending before the Local Court, Yendi, because there is nothing before the court to show that the judgment of the Yendi Local Court had been fully satisfied before 1 October 1966 and by virtue of paragraph 87 (3) of the Courts Decree, 1966, the District Court Grade II, Yendi, on 1 October 1966 became seised of the case. This disposes of the first argument of counsel for the respondent. I now turn my attention to the consideration of the other argument of counsel, and this argument I must admit is a formidable one. Counsel has argued that even if the District Court, Yendi, had control over the case, the appeal lodged in this court is hopelessly out of time and the purported order granting extension of time by Annan J. was without jurisdiction and this court can conveniently and legally ignore the order because it was void—a nullity.

Order 58 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), regulates appeals from district courts (grades I and II) to the High Court. See paragraph 88 (4) of the Courts Decree, 1966. Order 58, r. 3 (1) states:

“3. (1) Subject to the provisions of Rule 2 of this Order no appeal shall be brought after the expiration

of fourteen days in the case of an appeal against an interlocutory decision or of three

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months in the case of an appeal against a final decision, unless the Court below or the Court shall enlarge the time.”

(The emphasis is mine.)

Rule 3 (2) of the same Order also states that: “The prescribed period for appeal shall be calculated from the date of the decision appealed against . . .” and Order 58, r. 3 (4) is in the following words:

“(4) 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 a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

This provision of Order 58, r. 3 (4) is very similar in terms of rule 10 (4) of the Supreme Court Rules, 1962 (L.I. 218), with very slight modification which is immaterial to the determination of the point at issue.

I am spared the performance of any judicial acrobatics in relation to the construction of Order 58, r. 3 (4) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), in view of the decision in Nye v. Nye [1967] G.L.R. 76, C.A. (full bench). The decision in the instant matter was given on 7 December 1965 by the Yendi Local Court now Yendi District Court Grade II, and the said district court became seised of it on 1 October 1966. The application for the enlargement of time was made on 11 August 1967 to the High Court, and it is abundantly clear that it was made after the expiration of one month from the expiration of the three months limited by the rules for bringing the appeal (i.e. more than four months from the date of the decision). It follows that the order of the judge enlarging time for bringing the appeal made on 27 November 1967 was without jurisdiction. The question that falls for determination is whether I, a High Court judge, having equal jurisdiction with the judge who granted the extension of time can ignore his order as having been made without jurisdiction. It would seem that I am perfectly entitled to ignore it as being a nullity, that is as if the order does not exist at all in view of the judgment in African Woods Ltd. v. Administrator of Stool Lands [1962] 2 G.L.R. 24, S.C. See also the judgment of Diplock

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L.J. in the case of Anisminic v. Foreign Compensation Commission [1967] 2 All E.R. 986 at pp. 992-1008, C.A.

Thus, in the result, I rule that the appeal is not properly before this court and I would therefore dismiss it for want of jurisdiction. Costs of N¢20.00 to the plaintiff against the defendant.

Finally, there is one other matter that must be commented upon for it is of great practical importance in the administration of justice and it is this: an application for extension of time within which to appeal must not be made ex parte but it must be on notice in view of the fact that any order made by the court does affect the respondent who must have an opportunity of opposing the application. If it is made ex parte the order made in consequence thereof becomes ineffective, and may be set aside on appeal: see Absi v. Mends (1935) 2 W.A.C.A. 238.

DECISION

Preliminary objection upheld.

L. F. A.