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POKU v. ADDAI


  • appeal
  • 1961-05-08
  • HIGH COURT
  • GLR 217-224
  • Print

CRABBE J.


Summary

Practice and procedure Appeals from local courts Power of High Court to extend time in which to file notice of appeal Local Courts Procedure Regulations, 1959, regs. 171 and 180.

Headnotes

The applicant failed to file notice of intention to appeal within one month as required by regulation 171 of the Local Courts Procedure Regulations, 1959. He applied to the High Court for special leave to appeal out of time, relying on regulation 180.

Judgement

APPLICATION for special leave to appeal out of time against a decision of the Brong-Ahafo South Local Court in September, 1960.

This is an application for an order granting special leave to appeal out of time to this court against a ruling of the Brong-Ahafo South Local Court. The grounds for this application are fully set out in the accompanying affidavit sworn to by the plaintiff-applicant.

The defendant-respondent has by an affidavit challenged the facts relied on by the applicant and has further contended that "the Applicant failed to satisfy rule (sic) 180 of the Local Courts Procedure Regulations 19591; consequently in law he is not entitled to be granted leave to appeal out of time."

Thus a weighty and interesting issue is raised as to whether this court has power to extend the time within which to appeal from a decision of the local court. Although the affidavits do not disclose the value of the land both counsel agree that the land which was the subject-matter of the litigation exceeded G100 in value.

The procedure governing appeals from the local courts is set out under Part XXV of the Local Courts Procedure Regulations 1959.2 Regulation 171 reads:

"Any person wishing to appeal from an order, decision or judgment of a Local Court shall file in such Court and lodge in the Appeal Court a Notice of Intention to Appeal and such notice shall be filed and lodged within one month of the date of the order, decision or judgment appealed against".

Owing to ill-health the applicant was unable to comply with regulation 171. There is no express provision either in the Local Courts Procedure Regulations, 1959, or in the Courts Act, 19603, by which the court is empowered to extend time within which to appeal from an order or decision of the local court.

It is, however, contended on behalf of the applicant that the power to extend time within which to appeal is conferred by regulation 180 (1) of the [p.219] Local Courts Procedure Regulations, 1959. In order to determine whether regulation 180 has conferred such power it is necessary in the first place to ascertain the intention of the legislature in this regard, and in this exercise it is legitimate to refer to other ordinances and regulations on this same subject, even though these have been repealed. Thus in Ex parte Copeland4 Knight Bruce, L. J., said: "Although it has been repealed, still upon a question of construction arising upon a subsequent statute on the same branch of the law, it may be legitimate to refer to the former Act."

Before the establishment of the local courts the law and procedure governing appeals affecting decisions of the old native courts in Ashanti were contained in the Native Courts (Ashanti) Ordinance5 and the Native Courts (Ashanti). Procedure Rules, 1949.6 In section 29 of the Native Courts (Ashanti) Ordinance7 express power is vested in the appellate authority to grant leave out of time "upon such terms as to such authority may seem just". Rule 129 of Native Courts (Ashanti) Procedure Rules, 1949 is substantially in pari materia with regulation 180 of the Local Courts Procedure Regulations 1959. Rule 129 reads as follows:

"(1) An appeal court of its own motion as soon as may be convenient after the receipt of the Notice of Intention to Appeal and unless it shall for good cause shown extend the period of one month within which the requirement of rule 126 are to be complied with (which power of extension is reserved to the appeal court) shall upon being satisfied that the appellant is not entitled to appeal or that the requirements of rule 126 have not been complied with, order the appeal to be struck out:

Provided that no order shall be made striking out an appeal on the grounds that the appellant is not entitled to appeal unless the appellant has been given an opportunity to be heard thereon:

Provided further that if it appears to the appeal court that it has no jurisdiction to entertain the appeal but that some other court has such jurisdiction it shall not strike out the appeal and shall remit the appeal to such court which appears to have such jurisdiction which shall thereupon become the appeal court for the purposes of these Rules.

(2) Upon an appeal court striking out an appeal under sub-rule (1) of this rule, the Native Court from which the appeal was intended to be taken shall be notified that the appeal has been struck out and subject to any order of the appeal court regarding the forfeiture of deposits or recognisances, the order or decision of the Native Court shall thereupon become enforceable.

(3) An appeal court may for good cause shown order that an appeal which has been struck out under sub-rule (1) hereof for non-compliance with the requirements of rule 126 be restored to the list upon such terms and conditions as may be thought just and such appeal shall thereupon proceed and be set down for hearing as if it had not been struck out:

Provided that the appeal court shall not restore an appeal to the list unless it shall have been moved so to do within one month of the date of the order made under sub-rule (1) of this rule striking out such appeal."

The words "extend the period of one month within which the requirements of rule 126 are to be complied with (which power of extension is reserved [p.220] to the appeal court)" are significant. I have given very careful consideration to regulation 1808 and I have come to the conclusion that the words "and unless it shall for good cause shown extend the period of one month within which the requirements of these regulations are to be complied with (which power of extension is reserved to the Appeal Court)" refer to steps taken after the filing of the notice of intention to appeal and that they do not override regulation 1719 which limits the time within which to appeal to one month from the date of the order, decision or judgment appealed against. "It is supposed that the legislature would not make any important innovation without a very explicit expression of intention; especially since in recent years such an intention has often been very explicitly expressed": see Maxwell's Interpretation of Statutes (10th ed.) p. 128. If it is the intention of the legislature that the time for filing and lodging notice of intention to appeal shall be extended it would have done so by an explicit expression, as it did in section 29 of Native Courts (Ashanti) Ordinance.10 Regulation 171 is absolute in terms, and it is a well-settled principle that non-compliance with the requirements of an Act which prescribes how something is to be done will invalidate the thing done. "Provisions with respect to time" said Grove, J., in Barker v. Palmer,11 "are always obligatory unless a power of extending the time is given to the Court". Such a power affecting the fundamental requirements of an appeal had before 1960 been conferred by substantive enactments?-section 28 of Native Courts (Ashanti) Ordinance,12 and section 29 of the Native Courts (Ashanti) Ordinance.13 It was not left to be inferred from the uncertain and genelised expressions in any rules. In a recent case, Nokes v. Doncaster Amalgamated Collieries,14 Viscount Simon, L.C., said:

"where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have intended so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction."15

In my view compliance with the filing of notice of intention to appeal is so fundamental to the very existence of the appeal itself that the legislature could not intend that strict compliance with that statutory requirement should be relaxed. I am fortified in this view by the decision of the Full Court, Accra, in the case of African Products, Limited v. Tom Boevey Barrett.16 In that case a preliminary objection was taken that the court below in granting an extension of time for applying for final leave to appeal acted ultra vires, and, therefore, the Full Court had no jurisdiction. [p.221]

The question which the Full Court was called upon to decide was whether the Rules of Court, Order IV, rule 217 could be applied so as to extend the time for appealing beyond that precisely laid down by Order LIII, rules 7 to 10.18

Order IV, rule 2 provides that parties may by consent enlarge or abridge any of the times fixed by the Rules of Court for taking any step or filing any document or giving any notice in any suit, and that where consent cannot be obtained, either party may apply to the court for such an order of enlargement or abridgment. The rules provide further that such an order may be made although the application for the order may be made after the expiration of the time allowed or appointed.

In its unanimous judgment the Full Court said:

"In our opinion Order IV, r. 2, cannot be applied so as to extend the time laid down by Order LIII. The ordinary rule is that express provisions of the law cannot be over-ridden by general provisions, and we see no reason to depart from that rule in this matter.

If Order IV, r. 2, were to be held to apply to the rules governing appeals as set forth in Order LIII., it would follow that it would over-ride the peremptory provision for limitation of the time for appeals in rules 9-11 of the latter order, and the order for enlargement could be made even after the times limited in those rules."19

There are also certain dicta in the judgment of the Ghana Court of Appeal in Appiah v. Senior Auditor20 which in my view suggest, as in this case, that where there is a definite provision relating to time within which to appeal rules giving power to extend time within which to appeal cannot be made unless the appeal itself is pending before the appeal court having been filed within the statutory period. In delivering the judgment of the Court of Appeal, Granville Sharp, J.A. said:

"It was suggested in the course of argument that sub-section (b) of the proviso envisages rules of court relating to such appeals as the present and that it might be found that such rules made provision for extension of time within which to appeal. Even if such rules had been made they could not in our opinion provide for extension of time in relation to any step involved unless the appeal itself were properly pending before the Supreme Court having been filed within the statutory period of 60 days."

The jurisdiction of the High Court to hear appeals from the decision of the local courts is conferred by sections 33 and 126 (2) of the Courts Act, 1960.21 For the applicant Mr. Owusu has contended that section 35 of the Courts Acts, 1960, gives the High Court a discretionary power to entertain an appeal on terms which "it thinks just" and "notwithstanding anything to the contrary in section 34". Section 34 of the Courts Act, 1960, provides that the High Court shall not entertain any appeal where conditions precedent to the hearing of the appeal have not been fulfilled. The pith of Mr. Owusu's argument is that under section 35 of the Courts Act, 1960, [p.222] the High Court has jurisdiction to extend time within which to comply with the requirement of regulation 171 of the Local Courts Procedure Regulations, 1959.22

But when before the passing of the Courts Act, 1960, the legislature intended to vest the appellate authority with such powers it did so expressly by section 29 of the Native Courts (Ashanti) Ordinance,23 which is now impliedly repealed by the Courts Act, 1960. Section 29 of Cap. 99 has been omitted from the new Courts Act, 1960. The legislature must be presumed to know the state of the law at the time of an enactment, and where it omits to provide for a contingency it must be deemed to have done so intentionally. Thus in Young & Co. v. Mayor, etc. of Royal Learnington Spa.24 Lord Blackburn said: "We ought in general, in construing an Act of Parliament, to assume that the legislature knows the existing state of the law."25

It has been contended that though section 29 of the Native Courts (Ashanti) Ordinance26 has been omitted from the present relevant enactment, section 35 of the Courts Act, 1960, must be equitably construed as conferring a power to give leave to appeal out of the time limited by the regulations. But the court should not as a rule take upon itself to supply omissions, as this is to assume the function of a legislator.

In Lord Howard de Walden v. I.R.C.27 Lord Uthwatt said:

"My Lords, with all respect to the Court of Appeal it appears to me that while recognising the well settled principle that a statute must be construed according to the intention expressed in the statute itself, they failed to apply it. The principle was put thus by Lord Watson in Salomon v. Salomon & Co. ([1897] A.C.38):

"'Intention of the legislature's a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable and necessary implication.'

"It is an application of this principle that a statute may not be extended so as to meet a casus omissus. As appears in the judgment of the Privy Council in Crawford v. Spooner (6 Moo. P.C.C. 8):

". . . we cannot aid the legislature's defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which are left there."28

To my mind section 35 of the Courts Act, 1960, cannot be interpreted so as to supply an obvious omission or to cure a defect in that Act. [p.223]

Section 35 of the Courts Act, 1960, requires further consideration. I have pointed out earlier in this ruling that in the construction of statutes it is legitimate to refer to prior enactments. The principle is that in construing an Act of Parliament the court will take into consideration the language and provisions of expired and/or repealed Acts on the same subject, and the construction which they have authoritatively received; the presumption being that the legislature uses the same language in the same sense, when dealing at different times with the same subject.

There appears in sections 7 and 8 of the West African Court of Appeal Ordinance29 provisions in pari materia with sections 34 and 35 of the Courts Act, 1960. Sections 7 and 8 of the West African Court of Appeal Ordinances30 read as follows:

"7. Subject to the provisions of the next section the Court of Appeal shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal imposed by the Court below as prescribed by rules of Court. (Amended by 6 of 1951, s. 4.)

8. Notwithstanding anything hereinbefore contained the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks just."

The effect of these sections was considered in Dovlo Kudiabor v. H. Kudanu."31 The West African Court of Appeal (Deane, C.J., and Webber, J., with Howes, J., dissenting) held as follows:

"At the first blush this section would seem to give unlimited discretion to this Court to entertain appeals in disregard of any provisions of the law whenever it seems to it to be just to do so. To put such an interpretation upon it however would to my mind be contrary not only to all general canons of interpretation but would certainly introduce such an element of uncertainty into the administration of the law as would not be conducive to justice.

One instinctively turns therefore to the context in which this section occurs to see what the real meaning is and there one finds that it follows closely upon and is intimately connected with the preceding section 7 which deals with conditions of appeal. Whether it also depends upon the preceding six sections I do not decide as they are not relevant to this case and it is therefore unnecessary to do so. Section 7 provides: 'Subject to the provisions of the next section the Court of Appeal shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal imposed by the Court below as prescribed by rules of Court.' Then follows section 8. The two sections must it seems to me be read closely together and then section 8 may be read as giving the Court power notwithstanding section 7 to dispense with the strict requirements of the law as laid down in section 7 in any case in which it seems to it just to do so. If therefore this preliminary objection were that one of the conditions of appeal laid down by the Provincial Commissioner had not been complied with this Court would have under section 8 the right to entertain the appeal if it thought it just to do so notwithstanding section 7."

JUDGMENT OF HOWES J.

In his dissenting judgment Howes, J., also said:

On the other hand, when a time limit during which an application for leave or special leave to appeal is fixed by rule, the provisions of section 8 would not apply, any more than they would, had a time limit in which to apply for leave to appeal been fixed by a definite Limitations Ordinance."32 [p.224]

In Botchway v. Nassar however, the West African Court of Appeal did not agree that section 8 only governs section 7 "but governs all the sections contained under the heading 'Civil Appeals', unless there is anything in them which logically must be excluded from the operation of section 8." In any case compliance with the requirements under that heading has not been limited by time. In my view the wide discretionary power conferred on the High Court by section 35 of the Courts Act, 1960, can only be exercised in the case where there is a right of appeal and also where an appeal court is actually seized of the appeal; it does not empower the court to extend the period within which to appeal. The section can never be invoked "to cure defects which amount to a failure to comply with a statutory provision": see Chief Oloto v. Chairman L.E.D.B. Kwaku Yeboah v. Kwabena Kwao and Anor., and S. Mosuro and Anor. v. S. Akinyele, per Lewey, J.A.

I have dealt with this application as if leave is being sought to appeal out of time against a final judgment in view of the allegation in paragraph 5 of defendant-respondent's affidavit that judgment in the case was given as far back as September, 1960. Indeed, both counsel assumed during the argument that that was the position. If on the other hand this is an application for special leave to appeal from an interlocutory order of the local court I think that an appeal does not lie to the High Court in view of section 129 of the Courts Act, 1960.

For the above reasons I hold that the High Court has no jurisdiction either under regulation 180 (1) of Local Courts Procedure Regulations 1959 or under section 35 of the Courts Act, 1960, to grant leave to appeal out of time.

I would therefore dismiss this application.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

Victor Owusu

Defendant / Respondent

J. E. Lutterodt for Owusu Yaw

Referals

(1)  Ex parte Copeland (1852) 2 De G.M. & G. 914; 42 E.R. 1129

(2)  Barker v. Palmer (1881) 8 Q.B.D. 9

(3)  Nokes v. Doncaster Amalgamated Collieries [1940] A.C. 1014

(4)  African Products Ltd. v. Tom Boevey Barrett (1923) F.C. '23-'25, 76.

(5)  Appiah v. Senior Auditor, Court of Appeal, October 27, 1959, unreported.

(6)  Young & Co. v. Mayor, etc. of Royal Leamington Spa (1883) 8 App. Cas. 517.

(7)   Lord Howard de Walden v. I.R.C. [1948] 2 All E.R. 825; [1948] W.N. 419.

(8)   Dovlo Kudiabor v. Kudanu (1932) 6 W.A.C.A. 14.

(9)   Botchway  v. Nasser (1946) 12 W.A.C.A. 23.

(10)  Chief Oloto v. Chairman, L.E.B.D. (1950) 13 W.A.C.A. 57.

(11)  Kwaku Yeboah v. Kwabena Kwao & Anor. (1950) 13 W.A.C.A. 90.

(12)  Sanusi Mosuro & Anor. v. Salami Akinyele (1950) 13 W.A.C.A.112.

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