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DANAWI & SONS v. DAKO


  • appeal
  • 1961-01-30
  • SUPREME COURT
  • GLR 72-76
  • Print

KORSAH, C.J. GRANVILLE SHARP AND AKIWUMI, JJ.S.C.


Summary

Practice?-Certiorari?-Application made out of time?-Power to enlarge time for application?-Supreme [High] Court (Civil Procedure) Rules 1954, Order 59, r. 3 and Order 64, r. 6.

Headnotes

On the 9th November, 1955, the district magistrate, Accra, made an order under the Municipal Councils Ordinance, 1953, for the sale of a house belonging to E. G. Dako and the house was consequently sold to Danawi & Sons, who were also granted a certificate of purchase dated the 22nd June 1956. Dako applied by motion on notice to the magistrate?'s court, Accra, for an order that the sale and subsequent proceedings be set aside for irregularity, and also for an injunction. On the 25th July, 1956, the senior magistrate, E.A.L. Bannerman, Esq., set aside and cancelled the certificate of sale and granted the injunction. Danawi & Sons appealed and on the 31st August, 1956, van Lare, J., as he then was, allowed the appeal on procedural grounds and stated that the applicant?'s remedy, if any, should be by action and not by way of motion on notice.The applicant, Dako, was granted an enlargement of time for filing an application for an order of certiorari by Windsor-Aubrey, J. (reported sub nom. R. v. Akiwumi and Bannerman ex parte Dako (1957) 3 W.A.L.R. 14). An appeal to the Court of Appeal was dismissed for lack of jurisdiction (reported sub nom. [p.73] R. v. Akiwumi and Bannerman ex parte Dako, (1958) 3 W.A.L.R. 137) and on the 19th March, 1958, Smith, J. made an order of certiorari quashing the order of sale made by the district magistrate and also the certificate of purchase.Danawi & Sons appealed to the Supreme Court on the ground that the enlargement of time granted under Order 64, rule 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954, was wrong in law.

Judgement

APPEAL from a ruling of Smith, J. on an application for certiorari in the High Court, Accra, reported at (1958) 3 W.A.L.R. 372. The facts are set out in the judgment of the Supreme Court.

JUDGMENT OF SARKODEE-ADOO, J.S.C.

Sarkodee-Adoo, J.S.C. delivered the judgment of the court. This is an appeal from the ruling of Smith, J. dated the 19th March, 19581 making an order of certiorari quashing the order of the district magistrate dated the 9th November, 1955, for the sale of house No. D727/4, and also the certificate of purchase dated the 9th November, 1955, of the said premises.

The facts as found by the learned trial judge in the said ruling are as follows:

?"The applicant Lako, with his sisters, owned land at Tudu, Accra, on which there was formerly a building known as D.727/4. By letter dated 7th April, 1947, he requested the Accra Town Council to send all notices about rates to him at his address in Koforidua. This letter was acknowledged. On the 9th November, 1955, the town clerk at Accra brought a motion ex parte before the district magistrate, Accra for an order for the sale of certain houses (one of which was the applicant's) for which the rates had not been paid. The magistrate made an order for sale and the respondents bought the land in question on 31st May, 1956, and were granted a certificate of purchase on 22nd June, 1956. It was admitted by the Accra Municipal Council that the town clerk of the council had not sent the applicant a registered letter demanding payment of the rate due, which he was bound to do in accordance with section 20 of Schedule 5 of the Municipal Councils Ordinance No. 9 of 1953. The result was that the applicant was given no opportunity to pay the small outstanding sum of G1 17s., and the court?'s order of sale and the actual sale of the land took place without his knowledge.?"

[p.74]

The applicant therefore brought these proceedings by certiorari for the said order.

By a ruling of Windsor-Aubrey, J. dated the 24th May, 19572, the applicant was granted an order of enlargement of time for applying for leave to apply for an order of certiorari or mandamus concerning the said order of the district magistrate, Accra. An appeal from the said order to the Court of Appeal was dismissed on the 28th October, 19573 on the ground that the order appealed from does not fall within the ambit of section 3 of the West African Court of Appeal Ordinance4 and that the court had no jurisdiction to entertain the appeal. Subsequent to this dismissal the application for an order of certiorari or in the alternative for an order of mandamus came before the court pursuant to the leave dated the 11th December, 1957, on the 31st January, 1958, when it was argued on that date and on subsequent dates, and the said ruling appealed from was delivered accordingly. For the purpose of this judgment, with reference to the grounds of appeal filed, learned counsel for the appellant intimated at the outset that he would argue grounds 1, 2(c), (d) and (e) but restricted his argument to ground 1 which reads as follows:

?"The learned trial judge had no jurisdiction to entertain the application because the application was made out of time and the order of Windsor-Aubrey, J., extending the time for the application was wrong in law and of no effect.?"

In support of this ground, learned counsel submitted that the said order of Windsor-Aubrey, J., granting extension of time was invalid in that the court had no jurisdiction to extend the time, and referred to Order 59, rule 3 and Order 64, rule 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954, which was as follows:

?"Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.?"

Order 64, rule 6 provides that:

?"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 delivering any pleading or document of filing any affidavit, answer or document or doing any act is or has been fixed or limited by any of these Rules or by any direction on or under the summons for directions 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.?"

[p.75]

Order 59, rule 3 is in the same terms as Order 59, rule 4(2) of the Rules of the Supreme Court, England, and in the notes thereto in the White Book appears the following (Annual Practice, (1960 ed.), Vol. 1, p. 1730):

?"Extension of Time ?- The Court may extend the time under O.64, r.7 (and see R.v. L.C.C., 141 L.T. 590), but will only do so where a strong case for it is shown?"

Order 64, rule 6 is in the same terms as Order 64, rule 7 of the rules of the Supreme Court, England, except for the opening words of our rule which are absent from the English rule. These words are as follows: "Subject to any provisions to the contrary in these Rules."

Learned counsel contends that Order 64, rule 6 does not apply to this case because of the opening words of the rule, which according to him, relate to Order 59, rule 3, which limits the time to apply for leave to apply for an order of certiorari to not later than six months after the date of the proceedings.

It is not disputed that the application for certiorari was made seven months after the period of six months had expired within which the application could have been made; nor is it disputed that this question of excess of jurisdiction was not raised before Smith, J. Learned counsel for the respondent on the other hand argues that if Order 64, rule 6 is construed to prohibit a time limit from being extended in respect of an application for leave to apply for an order of certiorari then the rule is redundant to the extent that there is no rule providing limitation of time within which to apply for extension of time and therefore this rule cannot operate.

Learned counsel for the appellant in reply contends that where a time limit can be extended the particular rule so provides, and refers to Order 58, rule 3 (4) as a case in point. Order 58, rule 3 (1) provides that:

?"Subject to the provisions of Rule 2 of this Order which refers to special leave no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision, unless the Court below or the Court shall enlarge the time.?"

Order 58, rule 3 (4) provides that:

"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 bc 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 clearly falls within the mischief aimed at by Order 64, rule 6, and therefore after the expiration of the month no application for enlargement could be entertained.

[p.76]

Learned counsel for the appellant also called attention to the ruling in the case of Atsiavishie Ors. v. Chief Tsili II Ors.5 delivered by the Chief Justice (then a judge of the Land Division of the Supreme Court, Accra) on the 7th June, 1955. The relevant portions of which are as follows:

"Counsel for applicant first applied to review on 14th September, 1953, my order having been made on 2nd September, 1953; on the date fixed for hearing of the application for review, i.e. 30th September, 1953. The said application was withdrawn, and now another application for review has been filed over 18 months after the original order.

In my view Order 39 Rule 8 sub Rule 3 limits the powers of this Court to grant extension of time for review to 3 months, therefore Order 64 Rule 6 cannot operate to revive the Court's powers to extend the time.?"

This similarly falls within the mischief aimed at by Order 64, rule 6 as indicated in the said ruling. When it is found that in Order 59, rule 3 there appear no words referring to extension of time or limiting the time in which to make application for such extension the matter is left at large, and therefore in the absence of any mandatory rules limiting the time for an application for extension of time the court has inherent jurisdiction to extend the time independently of the rules with a view to avoiding injustice to the parties.

Exhibits J.H.L.1 (judgment of the senior magistrate, Accra) and J.H.L.2 (judgment of the Divisional Court, Accra) annexed to the affidavit of the applicant's solicitor, Mr. John Hedley Lynes, conclude that the applicant has suffered great misfortune and that serious miscarriage of justice has occurred, and indeed this view is abundantly borne out by the proceedings before this court. In the result we have come to the conclusion that Windsor-Aubrey, J. had the power to enlarge the time for applying for an order of certiorari and rightly exercised that power by extending the time to cover the application.

We refuse to extend the meaning of the introductory words of Order 64, rule 6 so as to give to them an interpretation which would exclude the inherent jurisdiction of the courts to do justice through the exercise of their prerogative writs. Such an interpretation might result in excluding the inherent power of the courts to enlarge time within which to apply for such a writ even in a case where the writ being the only available or appropriate remedy, by some understandable oversight or ignorance occasioned by concealed fraud as in this case, the time provided by Order 59, rule 3 had elapsed.

The appeal is accordingly dismissed with costs.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

E. Akufo-Addo

Defendant / Respondent

E. N. P. Sowah

Referals

Atsiavishie and others v. Tsili II and others Land Court, Accra, 7th June, 1955 (unreported).

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