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BANSON v. ABBEY


  • appeal
  • 1960-12-23
  • SUPREME COURT
  • GLR 265-267
  • Print

KORSAH, C.J., SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Practice?-Appeal from High Court?-Application for extension of time to execute bond for costs of appeal?-Court to which application should be made?-Supreme Court (Court of Appeal) Rules 1957 rules 11 (4) and 29.

Headnotes

The defendant who was appealing from a judgment of the High Court applied to the Supreme Court for an extension of time to execute a bond for the costs of the appeal and also stay of execution pending appeal. The prayer for stay of execution was abandoned.

Judgement

APPLICATION for extension of time to execute a bond for costs and stay of execution.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court: This is an application for extension of time to execute the bond for costs on appeal, and also for stay of execution pending appeal.

In a claim by the plaintiff against the applicant who was defendant, judgment was entered against defendant, for the amount claimed with costs on 24th June, 1960; being dissatisfied with, and aggrieved by, the said judgment, defendant filed a notice of appeal at the registry of the court below on the 18th July, 1960, and the following conditions were imposed, viz ?-

1. To deposit G30 against preparation of appeal record,

2. To enter into a bond in the sum of G50 with two sureties to be justified etc.

The appellant deposited the sum of G30 on the same day but took no further steps with respect to the other condition imposed. By rule 11 of the Supreme Court (Court of Appeal) Rules 1957 the time runs from the date of the judgment.

The applicant alleges in his affidavit sworn to on 3rd December, 1960 that on that day he went to the court to find out why the appeal record had not been forwarded to Accra , and was told that he had failed to execute the bond and therefore the record has not been typed, and that he should apply to this court for extension of time and as the result filed this application.

This application is made under rules 20 (2) and 28 of the Supreme Court (Court of Appeal) Rules, 1957, to this court for extension of time to execute the bond for costs and for stay of execution pending appeal respectively. Counsel however abandoned the prayer for stay of execution; we shall therefore not refer further to it.

Rule 20 (2) reads as follows:

"If the respondent alleges that the appellant has failed to comply with a part of the requirements of rule 9, 13 (4) or 14 the Court, if satisfied that the appellant has so failed, may dismiss the appeal for want of due prosecution or make such other order as the justice of the case may require."

It is obvious that this application could not be made under this rule which clearly refers to what the respondent may do, where there has been non-compliance with conditions of appeal by the appellant; consequently, this rule envisages an appeal pending before the court.

Provision under which application can be made for enlargement of time within which to appeal is rule 11 (4) which 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 [p.267] 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 may 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."

Rule 29 directs to which court applications should be made. It reads thus:

"Whenever under these rules 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 the application the appellant shall subject to the provisions of rule 11 (4) be entitled to have the application determined by the Court."

It will be seen from the above rules that this application ought to have been made to the court below and not this court.

We accordingly dismiss it.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

Baidoo

Defendant / Respondent

Blay

Referals

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