BARCLAYS BANK (GH) LTD vs. GHANA CABLE CO LTD [1995-96] 1 GLR 289

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by the defendant-respondent to the juris-

[p.291] of [1995-96] 1 GLR 289 diction of the Court of Appeal to entertain the application of the plaintiff-applicant for extension of time to fulfil the conditions of appeal in respect of an appeal by the plaintiff-applicant from a decision of the Court of Appeal in favour of the defendant-respondent and which was pending in the Supreme Court, on the ground, inter alia, that under rule 19(4) of the Supreme Court Rules, 1970 (CI 13) the proper forum for the application was the Supreme Court. The facts are sufficiently set out in the ruling of Wood JA.

COUNSEL

Mrs Amegatcher for the plaintiff-applicant.

Miss Boafo for the defendant-respondent.

JUDGMENT OF WOOD JA.

The applicant failed to comply with the conditions of appeal imposed by the registrar of this court in respect of the appeal he had lodged at the Supreme Court. He therefore filed this motion praying for an order extending the time within which he may carry out these obligations.

But what started off as a simple motion for extension of time, sparked off a controversy as to the court clothed with jurisdiction to hear and determine such applications, namely applications for extension of time in which to fulfill conditions of appeal pending in the Supreme Court.

The simple argument of the respondent’s counsel who raised the preliminary objection is that by the very clear provisions of rule 19 (4) of the Supreme Court Rules, 1970 (CI 13), the proper forum is the Supreme Court. In other words that this court has no jurisdiction. On the other hand, the basic arguments of the applicant’s counsel are that (1) the dictates of common sense show that this court should be the proper court to hear and determine such applications since these were imposed by no other person but the court’s own registrar; and (2) In any event, rule 16(1) and (2) of CI 13 which regulates the control of proceedings during the pendency of appeals would vest jurisdiction in this court.

I find myself unable to agree with the applicant’s counsel for the following reasons. The whole of rule 19 (1) and (2) of CI 13 spells out the consequences of non-compliance with conditions of appeal, with the most serious being that the court, and under the rules of interpretation of CI 13 this means the Supreme Court, has power to

[p.292] of [1995-96] 1 GLR 289 dismiss the appeal simpliciter or for want of jurisdiction as the case may be. Rule 19(3) of CI 13 however grants the court power, upon application, to restore any such appeal dismissed by virtue of the provisions under rule 19(1) and (2) of CI 13. Then significantly there is rule 19(4) of CI 13 which reads:

“(4) Notwithstanding the preceding provisions of this rule an appellant may apply to the Court for an extension of time within which to fulfil the conditions to be complied with in accordance with these Rules and the Court may, for good and sufficient cause shown, grant an extension of time subject to such conditions as the Court may impose.”

It is interesting to note that although the Court of Appeal has similar rules such as we have under rule 19 (1)-(3) of CI 13 there is no express provision such as we have under the rule 19(4) of CI 13 by which the Supreme Court is empowered to extend time. The relevant rules of the Court of Appeal may be found in rule 19 (1)-(3). In other words, the Court of Appeal rules stop at subrule 3. I would not think it is a mere accident. Had the legislature intended such an express provision for the Court of Appeal, I do not think it would have lacked the moral courage nor the words to make provision for it. And it is precisely because of the express provisions, ie rule 19 (4) of CI 13 that I think that rule 16(1) and (2) of CI 13 is clearly inapplicable in our court in applications of this kind. For rule 16 of CI 13 is a rule of general application. But rule 19(4) of CI 13 is of specific application, ie it applies to applications for extension of time within which to fulfil the conditions of appeal. And, the general rule of law as we know it is that where there is a specific legislation covering any given situation we do not apply general provisions. I would thus sum up the position of the law as such:

Where an appellant, who has appealed to the Supreme Court seeks an extension of time within which to fulfill the conditions of appeal imposed by the registrar of the Court of Appeal, the court empowered to hear and determine such an application is the Supreme Court and not the Court of Appeal. For these reasons, I would uphold the preliminary objection and dismiss the motion.

JUDGMENT OF BADDOO JA.

On 25 January 1996 the registrar of the Court of

[p.293] of [1995-96] 1 GLR 289

Appeal settled the records of appeal in this case and imposed the following conditions on the parties:

(1) The appellant to deposit ¢20,000 for preparation and transmission of the records to the Supreme Court.

(2) The appellant to deposit a further sum of ¢1.5 million or in lieu thereof enter into a bond in like sum with two sureties to be justified, for the due prosecution of the appeal or for the payment of any costs which may be ordered to be paid by the appellant.

For some undisclosed reasons, the appellant failed to comply with the conditions of appeal, until the period expired on 25 February 1996. The appellant then filed a motion on notice to this court praying for an extension of time within which to fulfil the conditions of appeal set out by the Court of Appeal registrar.

At the hearing of the motion Mrs Amegatcher for the appellant, submitted that under the Supreme Court Rules, 1970 (CI 13), rr 16(1) and (2) and 19(4) the Court of Appeal had jurisdiction to grant the extension of time to fulfil the conditions. CI 13, r 16(1) and (2) provides as follows:

“16. (1) After the transmission of the record of appeal from the Court below to the Court, the Court shall be deemed to be seised of the appeal and every application relating thereto shall thereafter be made to the Court.

(2) Any such application filed in the Court below shall be transmitted to the Court.”

Counsel for the appellant argued that since the record of appeal has not been transmitted to the Supreme Court, the Supreme Court is not seised with the appeal. Therefore any application for extension of time must be made at the court below, which is the Court of Appeal.

Counsel then referred to rule 19(4) of CI 13 which reads as follows:

“(4) Notwithstanding the preceding provisions of this rule an appellant may apply to the Court for an extension of time within which to fulfil the conditions to be complied with in accordance with these Rules and the Court may, for good and sufficient cause shown, grant an extension of time subject to such conditions as the Court may impose.”

[p.294] of [1995-96] 1 GLR 289

She urged the court to interpret this rule as giving jurisdiction to the Court of Appeal to grant an extension of time within which to appeal.

Counsel for the respondent raised a preliminary objection on a point of law, that the court had no jurisdiction to grant such an extension. She said that CI 13 are rules which are applicable to matters and issues arising in the Supreme Court. That since the application was in the Court of Appeal, the rules in CI 13 are not applicable.

I find her arguments unassailable, that the rules applicable to issues and matters before the Court of Appeal, are not to be found in CI 13. Indeed, the rules applicable to matters and issues before the Court of Appeal are contained in the Court of Appeal Rules, 1962 (LI 218) as amended by the Court of Appeal (Amendment) Rules, 1969 (LI 618). It is significant to note that under LI 218, r 19, there is a provision for non-compliance with conditions of appeal, as we have in CI 13, r 19. But while CI 13, r 19(4) makes provision for the Supreme Court to grant an extension of time within which to fulfil the conditions of appeal, LI 218, r 19 does not make any provision for extension of time to fulfil the conditions of appeal. In my view, the change in the rules of the Court of Appeal, with regard to the grant of an extension of time to fulfil the conditions of appeal, is an expression of an intention to take away that power from the Court of Appeal.

Under rule 8(3) of CI 13, “A civil appeal shall be deemed to have been lodged when the notice of appeal has been filed.” Since the appellant in this, has already filed his notice of appeal, his appeal shall be deemed to have been lodged with the Supreme Court. It is my considered opinion therefore that he can go before the Supreme Court under rule 19(4) of CI 13 and ask for an extension of time to fulfill the conditions of appeal.

I shall therefore uphold the preliminary objection that the application for an extension of time to fulfil the condition of appeal is not properly before this court. The motion is accordingly dismissed.

JUDGMENT AFREH JA.

I also agree that the objection should be upheld. This is a motion on notice for an order to extend the time within which to fulfil the conditions of appeal from this court to the Supreme Court.

When the application came up for hearing on 29 April 1996 counsel for the respondent, Miss Boafo, raised a preliminary objection on the ground that the motion should have been filed in the Supreme Court.

[p.295] of [1995-96] 1 GLR 289

In support of her contention, she relied on rule 19(4) of the Supreme Court Rules, 1970 (CI 13) which provides that where an appellant has not fulfilled the conditions to be complied with by him, the registrar of the court below, ie the Court of Appeal, must certify such fact to the court, that is the Supreme Court. Where a respondent alleges that the appellant has failed to fulfil any of the conditions to be complied with by him the court may, if satisfied that the appellant has so failed, dismiss the appeal for want of prosecution or make any other order as the justice of the case may require. An appellant whose appeal has been dismissed for non-compliance with conditions may apply by motion on notice to have his appeal restored, and the court may, for good and sufficient cause shown, order the appeal to be restored upon such terms as it may think fit. Rule 19(4) of CI 13 on which Miss Boafo relied provides:

“(4) Notwithstanding the preceding provisions of this rule an appellant may apply to the Court for an extension of time within which to fulfil the conditions to be complied with in accordance with these Rules and the Court may, for good and sufficient cause shown, grant an extension of time subject to such conditions as the Court may impose.”

In answer to the preliminary objection, counsel for appellant, Mrs Amegatcher, maintained that the Court of Appeal is the proper court to come to with this application. She argued that there were doubts about the interpretation of rule 19(4) of CI 13. In support of her contention that the Court of Appeal was the proper court for the application she drew the court’s attention to rule 16 of CI 13 which provides:

“16. (1) After the transmission of the record of appeal from the Court below to the Court, the Court shall be deemed to be seised of the appeal and every application relating thereto shall thereafter be made to the Court.

(2) Any such application filed in the Court below shall be transmitted to the Court.”

Rule 16 of CI 13 is a general provision on the effect of transmission of the record of proceedings to the Supreme Court. It does not say anything about what should or may be done when an appellant has failed to comply with the conditions of appeal. It is rule 19 of CI 13 which deals with that matter. It was made specially to deal with it and

[p.296] of [1995-96] 1 GLR 289 it is that rule that should apply to the application before us.

I do not think there is any doubt about the interpretation of rule 19 (4) of CI 13. It is clear that it is the Supreme Court that is the proper court to deal with matters arising out of non-compliance with the conditions of appeal. “Court” in CI 13 means the Supreme Court: see rule 70 of CI 13. “Court below” means the Court of Appeal. Under rule 19(1) of CI 13 it is to the Supreme Court that the registrar of the Court of Appeal should report non-compliance with the conditions of appeal. It is only to that court that a respondent must apply for the dismissal of an appeal for non-compliance: see rule 19 (2) of CI 13; and only that court can consider or grant an application for restoration of an appeal that has been so dismissed: see rule 19(3) of CI 13. There is no reason why an application for extension of time within which to fulfil conditions should be an exception. Rule 19(4) of CI 13 leaves no doubt that an application for extension of time to fulfil the conditions of appeal must be made to the Supreme Court.

In any case, it seems this court has no jurisdiction to grant an extension of time to fulfil conditions. The Court of Appeal Rules, 1962 (LI 218) has no equivalent of rule 19(4) of CI 13. I do not think this is an inadvertent omission.

I agree that the preliminary objection should be upheld, and the application dismissed accordingly.

DECISION

Preliminary objection upheld.

Application dismissed

DRKS