IMBEAH AND ANOTHER vs. ABABIO [1999-2000] 2 GLR 295

CASES REFERRED TO

(1) Sandema-Nab v Asangalisa [1996-97] SC GLR 302.

(2) Otu X v Owuodzi [1987-88] 1 GLR 196, SC.

(3) Fosuhene v Pomaa [1987-88] 2 GLR 105, SC.

(4) Sandema-Nab v Asangalisa [1996-97] SC GLR 302.

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(5) Otu X v Owuodzi [1987-88] 1 GLR 196, SC.

(6) Sandema -Nab v Asangalisa [1996-97] SC GLR 302.

(7) Otu X v Owuodzi [1987-88] 1 GLR 196, SC.

(8) Fosuhene v Pomaa [1987-88] 2 GLR 105, SC.

(9) Amponsah v Minister of Defence [1960] GLR 140, SC.

(10) Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141; 64 LJ Ch 196; 71 LT 708, CA. (11) Commission on Human Rights and Administrative Justice (No 1) v Attorney-General [1999-2000] 1 GLR 697, SC; [1998-99] SC GLR 871.

(12) Merah v Okrah [1984-86] 1 GLR 400, CA.

(13) Banson v Abbey [1962] 1 GLR 213, SC.

(14) Azorblie v Ankrah IV [1984-86] 1 GLR 561, CA.

(15) Perry v St Helens Land & Construction Co Ltd [1939] 3 All ER 113; 83 Sol Jo 523, CA. (16) Nsiah v Amankwaah [1996-97] SC GLR 453.

(17) Republic v High Court, Kumasi; Ex parte Atumfuwaa [1999-2000] 2 GLR 599, SC; [2000] SC GLR 72.

(18) Frimpong v Nyarko [1999-2000] 1 GLR 429, SC [1998-99] SC GLR 734.

APPLICATION for leave to appeal to Supreme Court from a decision of National House of Chiefs following the refusal of the National House of Chiefs to grant the applicants leave. The facts are sufficiently stated in the ruling of Bamford-Addo JSC.

James Ahenkora for the applicants.

Ebow Dawson for the respondent.

Bamford-Addo JSC. The applicants herein filed a motion on notice for “special leave” to appeal to the Supreme Court on 9 June 1999, which was later amended with the leave of the court to read motion on notice for “leave” to appeal.

The judicial committee of the Central Regional House of Chiefs gave a decision for the respondent herein in a chieftaincy case. The applicants, aggrieved by the said judgment, appealed to the judicial committee of the National House of chiefs, which said tribunal upheld the decision of the Central Regional House on 21 February 1997. The applicants, being dissatisfied with the said decision of the National House of Chiefs, applied to the tribunal for leave to enable them to appeal to the Supreme Court, which

[p.298] of [1999-2000] 2 GLR 295 application was refused on 5 November 1997. Instead of repeating the application for leave to the Supreme Court, the applicants filed a motion for review of the said refusal to grant leave to the National House of Chiefs but that application was also dismissed on 2 June 1999.

On 9 June 1999, the applicants filed a motion to the Supreme Court for leave to appeal to the Supreme Court from the decision of the judicial committee of the National House of Chiefs, which is at present before us. Under articles 131(4) and 273(1) of the Constitution, 1992 a decision of the judicial committee of the National House of Chiefs lies to the Supreme Court with leave of the National House of Chiefs or the Supreme Court. This is repeated in section 4(4) of the Courts Act, 1993 (Act 459). Rule 30 of the Supreme Court Rules, 1996 (CI 16), provides as follows:

“30. The provisions of these Rules relating to civil appeals shall, with such modifications as the Court may determine, apply to the hearing by the Court of an appeal from the National House of Chiefs brought to the Court under clause (4) of article 131 or clause (1) of article 273 of the Constitution.”

The relevant rule which applies to this case is rule 7(1) of CI 16, which provides as follows:

“7 (1) An application for leave to appeal under paragraph (b) of clause (1) of article 131 of the Constitution shall be by motion on notice in the Form 2 set out in Part 1 of the Schedule to these Rules and shall be filed with the Registrar of the court below within fourteen days of the date of the decision against which leave to appeal is sought.”

(The emphasis is mine.)

In the case of Sandema-Nab v Asangalisa [1996-97] SC GLR 302, it was unanimously held (as stated in holding (1)) that:

“the application filed on 16 February 1996 at the National House of Chiefs for leave to appeal to the Supreme Court against its decision given on 25 May 1995, had been properly dismissed as hopelessly out of time-not having been filed within fourteen days from the date of the decision complained of as required by rule 7(1) of the Supreme Court Rules, 1970 (CI 13). The instant application for extension of time was also

[p.299] of [1999-2000] 2 GLR 295 filed out of time-not having been filed within fourteen days from the date the National House of Chiefs refused to grant leave as required by rule 7(2) of CI 13.”

The said case was dealt with under rule 7(1) of the Supreme Court Rules, 1970 (CI 13) which rule is applicable to the present case before us since rule 7(1) of the Supreme Court Rules, 1996 (CI 16) is, in effect, identical with rule 7(1) of CI 13. Rule 7(1) of CI 16 has specified a time limit of fourteen days within which an applicant can apply for leave to appeal to the National House of Chiefs which, if refused, can be repeated at the Supreme Court, also within fourteen days after the date of the refusal of the National House Chiefs to grant leave to appeal to the Supreme Court from the decision of the National House of Chiefs. In the instant case, the said tribunal had refused leave on 5 November 1997, and the present applicants should have filed their motion for leave within fourteen days from 5 November 1997. They failed to do so; they rather went to the National House of Chiefs again for a review of its refusal to grant leave, and it was only when that application was refused that the applicants filed their motion for leave in this court on 9 June by which time they were already about one year, seven months out of time. The rules make no provision for extension of time of the said fourteen days time limit provided in CI 16, r 7(1) and since this application is completely out of time, it cannot be properly brought. I would dismiss the application.

Ampiah JSC. I agree.

Kpegah JSC. I also agree.

Atuguba JSC. As the facts of this matter have been amply stated by my learned and respected sister, Sophia Akuffo JSC, in the ruling she is to read, I need not restate them except where necessary.

It was contended by counsel for the respondent, Mr Ebow Dawson, that upon the refusal of the National House of Chiefs to grant the applicants leave to appeal to this court, the applicants could not properly apply to National House of Chiefs for a review of its decision since the procedural rules governing appeals to this court, namely the Supreme Court Rules, 1996 (CI 16), do not provide for a review in such a situation.

[p.300] of [1999-2000] 2 GLR 295

It was however unanimously decided by the erstwhile Supreme Court in Otu X v Owuodzi [1987-88] 1 GLR 196, SC that the National House of Chiefs does have an inherent review jurisdiction, the mechanics for the exercise of which are to be found in Order 39 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). Adade JSC in that case said at 200:

“The review jurisdiction of an adjudicating tribunal is not one that is usually conferred by statute. It is inherent in the tribunal: it is part of its very nature as a tribunal whose raison-d’etre is to do justice as between parties to a case before it. But in order not to appear to be taking sides in the matter, the jurisdiction is not usually invoked on the tribunal’s own motion, except in situations where the tribunal is satisfied that the decision sought to be reviewed is void…”

(The emphasis is mine.) In Fosuhene v Pomaa [1987-88] 2 GLR 105, SC, the review power of the National House of Chiefs was affirmed, although the court, per Taylor JSC (Abban JA concurring), based its existence on the rules of court rather than on the inherent power of the same. Adade JSC, dissenting from that view, however, took the stand that the review jurisdiction of a court is substantive and not procedural, and that, therefore, though its exercise may be regulated by rules of procedure, it cannot be conferred by the rules of procedure. As a general rule, I would accept this. As stated by Korsah CJ, when delivering the judgment of the court in Amponsah v Minister of Defence [1960] GLR 140 at 145, CA: “With reference to Order 74 of the Supreme Court (High Court) Civil Procedure Rules, we would point out that it merely regulates procedure and practice to be followed in the High Court, but does not purport to confer jurisdiction”

(The emphasis is mine.) This is true of every other rule of procedure.

Taylor JSC, however, does not lack high judicial company in holding the view that the power of review is procedural, and he relies, inter alia, on the views of Lord Lindley in Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 at 143-144, CA to that effect. I would, however, curtail the debate as to whether the review jurisdiction is substantive or procedural because, as I have pointed out, the court in Fosuhene v Pomaa [1987-88] 2 GLR 105,

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SC held that, on either view of the matter, the National House of Chiefs has jurisdiction to review its decisions. In that case Taylor JSC said at 139 that the court in Otu X v Owuodzi (supra) had stated the existence of the review power too widely. Taylor JSC, however, eventually accepted the view that the review jurisdiction of a court could be inherent. At 145-146 he stated as follows:

“A pioneer writer on the inherent powers of the courts under the common law system is Jim R Carrigan well known in legal and judicial circles in the United States… After collecting and studying a number of cases on the inherent powers of the courts he wrote a book on Outline of Cases on the Inherent Powers. In that book he offered a working definition of inherent powers collated from his case law studies. He stated:

‘From the case law can be gleaned this working definition: ‘Inherent Powers’ consists of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists; the Court … therefore … has the powers reasonably required to act as an efficient court’

I agree with this definition and I propose to rely on it in considering the inherent powers of this Supreme Court.”

I do not think, however, that the applicability of this principle depends upon the hierarchical altitude of a court. Thus, in Commission on Human Rights and Administrative Justice (No 1) v Attorney-General [1998-99] SC GLR 871 at 882, Hayfron-Benjamin JSC, in delivering the ruling of the court, said: “it is generally true that every tribunal has an inherent power to review its own decision.” It is therefore clear that the review power of a court exists either expressly or inherently. That being so, the absence of any express rule in CI 16 empowering the National House of Chiefs to review its decision given in the course of the appellate process from its original decision, does not point to the absence of such review jurisdiction.

In this case, Order 39 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) could not have governed a review by the

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National House of Chiefs of its previous ruling refusing leave to appeal. The applicants in this case were not seeking a review of the original decision of the National House of Chiefs given upon the case on appeal to it from the Central Regional House of Chiefs. The review application related to the refusal to grant them leave to appeal to this court. As that was an appellate step, it was governed not by the rules of procedure in the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27), but by the rules of this court for invoking our appellate jurisdiction. Consequently, though the ruling refusing leave to appeal was a decision of the National House of Chiefs, by dint of rule 30 of CI 16 this court took over the matter from rule 28 or any other rule of CI 27. The said rule 28 of CI 27 provides:

“28. Where no provision is expressly made by these Rules or by any enactment regarding the practice and procedure to be followed in any cause or matter before a Judicial Committee, that Committee shall follow such practice and procedure as in the opinion of the Judicial Committee the justice of the cause or matter may require, regard being had to the principles of customary law and the practice and procedure of the High Court of Justice”

(The emphasis is mine.) The above provision in rule 28 of CI 27 may be contrasted with rule 30 of CI 16 which states:

“30. The provisions of these Rules relating to civil appeals shall, with such modifications as the Court may determine, apply to the hearing by the Court of an appeal from the National House of Chiefs brought to the Court under clause (4) of article 131 or clause (1) of article 273 of the Constitution.”

(The emphasis is mine.)

In view of the distinction between rules of procedure that are fundamental and form the basic foundation or substratum of an appeal and those merely enabling an appeal to be heard: see Merah v Okrah [1984-86] 1 GLR 400, CA, I wonder whether the expression, “the hearing by the Court of an appeal from the National House of Chiefs…” in rule 30 of CI 16 was well chosen. The formulation in rule 29 of CI 16 concerning appeals in prerogative matters should have been retained mutatis mutandis in rule 30. It is, however, known that variations in statutory language

[p.303] of [1999-2000] 2 GLR 295 are sometimes merely for the sake of elegance. But, here, the elegance is illusory. In practice, however, nothing has turned on that expression and rule 30 of CI 16 has been applied both to matters that are requisite for vesting the right of appeal and the actual hearing of the appeal. In Banson v Abbey [1962] 1 GLR 213 at 216, SC, Korsah CJ, delivering the judgment of the court, said:

“We, however, agree with counsel that the learned judge erred when he purported to grant the extension, in exercise of powers conferred on him by rule 6 of Order 64 of the Rules of Court, 1954. The rules of court to which the learned judge referred apply only in cases pending in the High Court, and not during the transitional period after judgment when notice of appeal has been lodged; from that time onward the rules applicable are the Supreme Court (Court of Appeal) Rules, 1957.”

(The emphasis is mine.) I would add that rule 30 of CI 16 aforesaid, takes the case out of the domain of CI 27 from the moment the appellate process is sought to be invoked and governs even steps preliminary to the actual filing of an appeal.

Nonetheless, CI 16 does not prevent the court below, from which the appeal comes to this court, from exercising any inherent jurisdiction which is not inconsistent with its provisions. Thus in Banson v Abbey (supra) although the appeal therein was governed by the then Supreme Court (Court of Appeal) Rules, 1957, the registrar of the court below had power to impose conditions of appeal on the appellant. He did so. When the appellant failed to execute the bond required of him as security for costs within the time stipulated by the registrar, the court below granted him extension of time to do so. Upon preliminary point having been taken against this at the Supreme Court, Korsah CJ said at 215-216:

“it is further contended that there is no provision in the rules enabling the registrar to extend the time. This omission in our view does not preclude the registrar from granting extension when necessary. Relying on the provisions of the Interpretation Act, 1960, section 10(2), ‘Where an enactment confers power, or imposes a duty, to do any act or thing all such powers shall be deemed to be also given as are reasonably necessary to enable that act or thing to be done or are incidental to the doing thereof’. If the registrar can grant

[p.304] of [1999-2000] 2 GLR 295 extension, a fortiori the court must be deemed, in the exercise of its inherent jurisdiction to have the powers which its officers have in matters concerning which the rules of procedure require the registrar to perform duties relating to appeals… Consequently, the court below was by virtue of its inherent powers justified in granting the extension within which the appellant was enabled to execute the bond and thus perfect the appeal.”

(The emphasis is mine.) I hold therefore that the absence of an express review power over the ruling of the National House of Chiefs refusing the applicants leave to appeal, does not per se disentitle that house from reviewing the same. After all, even this court acquired its review jurisdiction through judicial assertion of its inherence in this court, fashioned a procedure for it; and it only gained statutory status upon confirmation of the same by article 133 of the Constitution, 1992 and consequentially is now regulated by rules 54-60 of CI 16.

However, the exercise of its review jurisdiction in the circumstances of this case by the National House of Chiefs was ultra vires. This is because the inherent jurisdiction should not be invoked in the face of an express rule relating to the same matter. Thus in Azorblie v Ankrah IV [1984-1986] 1 GLR 561 at 564, CA, Adade JSC, delivering the judgment of the court, said: “Where specific rules of law exist to cater for a specific situation, we think the courts should be slow to invoke its so-called inherent jurisdiction . . .”

(The emphasis is mine.) Supportive of this enunciation is the English case of Perry v St Helens Land & Construction Co Ltd [1939] 3 All ER 113 at 118, CA. In that case, Sir Wilfrid Greene MR, delivering his judgment (Finlay and Luxmoore LJJ concurring), deprecated the appellant’s resort to the inherent jurisdiction of the trial court even though the rules of procedure provided, in the circumstances, that he could move in court to discharge an order made in chambers, in which no certificate had been given.

The stumbling block to the exercise of a review power over the said ruling of the National House of Chiefs is not its absence, but, as just stated, the existence of an express alternative remedy, provided by rule 7(1) and (2) of CI 16 read together with rule 30 thereof. The said rule 7(1) and (2) is as follows:

[p.305] of [1999-2000] 2 GLR 295

“7. (1) An application for leave to appeal under paragraph (b) clause (1) of article 131 of the Constitution shall be by motion on notice in the Form 2 set out in Part 1 of the Schedule to these Rules and shall be filed with the Registrar of the court below within fourteen days of the date of the decision against which leave to appeal is sought.

(2) An application for special leave to appeal under clause (2) of article 131 of the Constitution shall be by motion on notice in the Form 3 set out in Part 1 of the Schedule to these Rules, and shall be filed with the Registrar of the Court within fourteen day s of the refusal of the court below to grant leave to appeal.”

(The emphasis is mine.) Cognate provisions to these were contained in rule 7(1) and (2) of CI 13, being the revoked rules of this court. The provisions in rule 7(1) and (2) received construction by this court in the chieftaincy case of Sandema-Nab v Asangalisa [1996-97] SC GLR 302. It was held, as stated in the headnote, that:

“(1) the application filed on 16 February 1996 at the National House of Chiefs for leave to appeal to the Supreme Court against its decision given on 25 May 1995, had been properly dismissed as hopelessly out of time—not having been filed within fourteen days from the date of the decision complained of as required by rule 7(1) of the Supreme Court Rules, 1970 (CI 13). The instant application for an extension of time was also filed out of time—not having been filed within fourteen days from the date the National House of Chiefs refused to grant leave as required by rule 7(2) of CI 13.”

(The emphasis is mine.) Save as to the allusion to extension of time, I agree that this represents the procedure for appealing to this court from a decision of the National House of Chiefs since, as have already said, rule 7(1) and (2) of CI 13 is virtually the same as rule 7(1) and (2) of CI 16. Even though rule 7(2) deals with special leave, its provisions, which deal with the situation where the applicant has made an earlier application elsewhere, are more suitable for modification and application, pursuant to rule 30, than rule 7(1); as in the instant case, a previous application had been made unsuccessfully to the National House of Chiefs thereby occasioning a second application for leave to appeal to this court.

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That being so, in the present case, the applicants’ next step when they were refused leave to appeal to this court by the National House of Chiefs, was to repeat their application for leave (note, not special leave) to appeal under rule 7(2) of CI 16, mutatis mutandis, and not to ignore that express procedural provision and invoke instead the inherent jurisdiction of the National House of Chiefs to review its said refusal. As categorically stressed by the editorial note to Perry v St Helens Land & Construction Co Ltd (supra) at 113:

“The importance of the present decision is that it emphasises that in matters of procedure it is not proper to invoke the inherent jurisdiction of the court where any other remedy is available. The inherent jurisdiction is to be regarded as a, last resort in such cases.”

(The emphasis is mine.) Therefore, the applicants, having wrongly invoked the review jurisdiction of the National House of Chiefs, that procedure indulged in by them cannot operate to prevent the period of fourteen days within which they should have repeated their application to this court for leave to appeal to this court as stipulated by rule 7(2) of CI 16, from running against them. The National House of Chiefs had refused the applicants’ prayer for leave to appeal to this court on 5 November 1997, and after having indulged in an abortive and dilatory review process, they finally filed their present application for leave to appeal to this court on 9 June 1999, a delay which could defeat the resultant total of all the time limits permitted for all the diverse applications that can conceivably be made to this court under CI 16.

As a result of quite a number of dissenting voices on the question of the effect of time limits for bringing applications to court, in the erstwhile Supreme Court, to which the present court has succeeded, I tried, in Nsiah v Amankwaah [1996-97] SC GLR 453 at 466, to leave the matter open. I myself in Republic v High Court, Kumasi; Ex parte Atumfuwa, [2000] SC GLR 72 discharged my stand nisi in the Nsiah case (supra) and held that violations of time limits for the commencing of court processes (unless duly extended) are fatal. That is the settled rule stated in Sandema-Nab v Asangalisa (supra) and that rule has been crystallized into steel in Frimpong v Nyarko [1998-99] SC GLR 734, where it was held (as stated in holding (2) of the headnote thereof at p 736) that:

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“. . . where the error is fundamental or goes to the jurisdiction of the court, thereby exposing the court’s incompetence or lack of jurisdiction in the matter in which the said error was committed… the court is incompetent to correct or waive such an error.”

(The emphasis is mine.) The violation by the applicants of rule 7(2) of CI 16 mutatis mutandis in this case is of that character of an error, which is fundamental or goes to the jurisdiction of this court. The court is powerless of waiver of the same. I would, therefore, also dismiss this application.

Akuffo JSC. The respondent herein had instituted an action against the applicants herein in the judicial committee of the Central Regional House of Chiefs (hereinafter referred to as the committee), claiming certain reliefs. After the settlement of issues, the applicants changed their solicitor but failed to file a notice to that effect. The new solicitor for the applicants then filed a motion praying the committee for an order that a previous customary arbitration award estopped the respondent from bringing the action therein. The respondent opposed that application on the grounds that the application was incompetent because no notice of change of solicitor had been filed, and that, in any case, the arbitration award relied upon did not operate as an estoppel. The committee upheld the contention that the application was incompetent. The committee then proceeded further to rule that there was no estoppel operating against the respondent. The applicants appealed to the National House of Chiefs, which on 21 February 1997, dismissed the appeal and upheld the committee’s decision.

The applicants then applied to the National House of Chiefs for leave to appeal to this court. The National House of Chiefs, on 5 November 1997, dismissed that application on the grounds that the judgment against which the applicants intended to appeal had not been attached to their application and that the application was, therefore, deficient for non-compliance with the Supreme Court Rules, 1970 (CI 13). The applicants then applied to the National House of Chiefs to review its decision refusing to grant leave to appeal, which application was dismissed on 2 June 1999. As a consequence of the said dismissal, the applicants, on 6 June 1999, filed an application in this court for special leave to appeal. With

[p.308] of [1999-2000] 2 GLR 295 the leave of this court, however, the applicants were allowed to amend that application to one for ordinary leave.

In his affidavit in opposition to this application, the respondent deposed that no sufficient grounds have been shown by the applicants to justify the granting of their application. In paragraph (10) of the affidavit in opposition, the respondent contended further that the application is incompetent and not properly before this court. At the hearing of the application, counsel for the respondent submitted that the application was woefully out of time since, by the combined effect of rules 7 and 30 of the Supreme Court Rules, 1996 (CI 16), the same should have been filed within fourteen days from the refusal of the National House of Chiefs to grant leave to appeal. Counsel contended that article 131(4) of the Constitution, 1992 did not leave any room entitling the applicants, under the circumstances of this matter, to apply to the National House of Chiefs for review, once the application for leave to appeal had been dismissed. Rather, the only recourse open to the applicants was to have proceeded to repeat their application in this court, and therefore, having failed to do so within the stipulated time of fourteen days, they were out of time.

Counsel for the applicants countered that since rule 28 of the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27)), provides that, where the said rules do not expressly provide for the practice and procedure to be followed by a judicial committee in any cause or matter, the practice and procedure of the High Court of Justice may be followed, and, consequently, since under Order 39 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), the High Court has jurisdiction to review its judgments and orders, the review proceedings before the National House of Chiefs were in order and therefore, time began to run only after the dismissal of the applicants’ application for review. The application herein, according to the counsel for the applicants, is consequently properly before this court since it was filed within fourteen days from the dismissal of the application for review.

In response to this submission, counsel for the respondent contended that since no leave is required to appeal in any matter from the High Court to the Court of Appeal, the provisions of rule 27 of CI 27 could not avail the applicants, as the rules of the High Court could not be read as if they contained any provisions

[p.309] of [1999-2000] 2 GLR 295 regulating applications for leave to appeal from decisions of the High Court.

The basic question which their lordships in this court therefore need to ascertain before proceeding to consider the merits of the application herein, is whether or not the application is, in the circumstances, within time and properly before us. Although the general tendency of this court, in applications for leave to appeal in chieftaincy matters, has been to grant such applications to enable the underlying dispute to be judicially resolved with authoritative finality, in the interest of communal peace and stability, such grants have always been premised on applications which are properly and legally before the court. An application for leave to appeal is, in nature, an application for this court to exercise a discretionary power. Discretionary though this power is, it is not one bounded by and at the mercy of our whims and caprices. It is a creature of the law and, therefore, it must, necessarily, be exercised judicially and in accordance with whatever parameters that have been set by the statutory provisions granting us that power.

The primary source of our power to grant leave to appeal against decisions of the National House of Chiefs is article 131(4) of the Constitution, 1992 which reads as follows:

“(4) An appeal from a decision of the Judicial Committee of the National House of Chiefs shall lie to the

Supreme Court with the leave of that Judicial Committee or the Supreme Court.”

The exercise of this power is regulated by rules 7(1) and 30 of the Supreme Court Rules, 1996 (CI 16). Taking first rule 30, it stipulates that:

“30. The provisions of these Rules relating to civil appeals shall, with such modifications as the Court may determine, apply to the hearing by the Court of an appeal from the National House of Chiefs brought to the Court under clause (4) of article 131 or clause (1) of article 273 of the Constitution.”

Rule 7(1), which specifically governs appeals with leave, requires that:

“7. (1) An application for leave to appeal under paragraph (b) of clause (1) of article 131 of the Constitution shall be

[p.310] of [1999-2000] 2 GLR 295 by motion on notice in the Form 2 set out in Part 1 of the Schedule to these Rules and shall be filed with the Registrar of the court below within fourteen days of the date of the decision against which leave to appeal is sought.”

(The emphasis is mine.) The time limit stipulated by the latter provision has always been interpreted, in chieftaincy matters, to mean that the application to this court must be filed within fourteen days from the refusal of the National House of Chiefs to grant leave to appeal.

In the circumstances, the applicants’ attempt to cause the judicial committee of the National House of Chiefs to review its refusal to grant leave was, in my opinion, a false step, which cost them valuable time. However, they have no one to blame except themselves. Rule 28 of CI 27 cannot avail the applicants since it specifically relates to practice and procedure. My understanding of those provisions are that, where the Chieftaincy Act, 1971 (Act 370), or any other applicable enactment (such as article 131(4)) confers upon the judicial committee of the National or Regional Houses of Chiefs any jurisdiction in any cause or matter, but CI 27 does not specify the applicable practices and procedures for the invocation or exercise of such jurisdiction, then the committee may be guided by, inter alia, the practice and procedure of the High Court. Those provisions are not intended to confer upon the said houses of chiefs any power or jurisdiction not otherwise expressly conferred upon them by law, and they cannot be so read as to extend to the judicial committee the jurisdiction of the High Court.

Consequently, since there was no legal basis for the review proceedings initiated by the applicants before the National House of Chiefs, the pendency of those proceedings could not operate to freeze the flow of time. Having failed to obtain the leave of the National House of Chiefs to appeal to this court, the only course open to the applicants was to have filed an application to this court for such leave, within fourteen days of the refusal. They did not do so, and the application therein is, therefore, grossly out of time. As such, it is not properly before this court.

I would also dismiss the application.

Application dismissed.

LSNA