NARNOR vs. PALM GROVE ESTATE LTD. [1964]DLSC1930

Date	1964-09-28
Suit No.
Citation No.	[1964]DLSC1930

ARCHER J.

A. K. PUPLAMPU FOR APPLICANT.

NII ODOI ANNAN FOR RESPONDENT.

[1964]DLSC1930
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													<main id="main" class="content" style="min-height: 60rem" >NARNOR <o:p></o:p>vs. <o:p></o:p>PALM GROVE ESTATE LTD. <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 521<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
28 SEPTEMBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

A. K. PUPLAMPU FOR APPLICANT.<o:p></o:p>

NII ODOI ANNAN FOR RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>On 10
August 1964 I dismissed an application by the judgment-debtor in this case for
a review of decision of 13 July 1964 disallowing the judgment-debtor’s
application for stay of execution. The application for review was filed on 31
July 1964 and in view of the time limit laid down by Order 39, r. 8 (3) of the
Supreme [High] Court (Civil Procedure) Rules, 1954,1 I decided that I was not
competent to entertain the application as it was made more than fourteen days
after the order of 13 July 1964 had been made. Learned counsel sought to rely
on Order 64, r. 6 which gives the court or a judge power to enlarge time but I
pointed out to him that the opening words of rule 6 of Order 64 excluded Order
39 from the ambit of the discretion conferred on the court by rule 6 of Order
64. I shall now attempt to convince learned counsel with the reasons for my
decision.<o:p></o:p>Order 39,
r. 8 (3) reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Applications
for review under this order shall be made within 14 days from the date on which
the judgment or order in respect of which review is sought was entered or made
. . . “<o:p></o:p>Order 64,
r. 6 reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“6.
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 or 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.”<o:p></o:p><o:p>&nbsp;</o:p>In my
ruling in the earlier case of Macas v. Laham2 I decided that Order 39 was in a
category by itself and that Order 64, r. 6 did not confer on the court power to
enlarge the periods stipulated in rule 8 (3) of Order 39 in view of the words,
“subject to any provisions to the contrary in these Rules” which are the
opening words of Order 64 and although the equivalent rule in the White Book,
i.e. Order 64, r. 7 is couched in similar terms, the opening words in the Ghana
rule 6 are absent from the English rule 7. I also remarked in my earlier ruling
that in the case of R. v. Akiwumi and Bannerman; Ex parte Dako3 Windsor-Aubrey
J. expressed the view that he was not bound by the decision of Sir Arku Korsah
C.J. in the case of Atsiavishie v. Tsili4 in which the Chief Justice had ruled
as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“In my
view Order 39, rule 8, sub-rule (3) limits the powers of this court to grant
extention of time for review . . . therefore Order 64, rule 6 cannot operate to
revive the court’s power to extend time.”<o:p></o:p><o:p>&nbsp;</o:p>In the
case of R. v. Akiwumi and Bannerman; Ex parte Dako (supra) Windsor-Aubrey J.
was dealing with alternative applications for the writs of mandamus or
certiorari under Order 59, r. 3, whereas the case of Atsiavishie v. Tsili
(supra) was an application for review and whatever Korsah C.J. ruled in the
latter case had no relevance to the application before Windsor-Aubrey J. The
remark by Windsor-Aubrey J. that he was not bound by the ruling of Korsah C.J.
was therefore obiter dictum and cannot be relied on as an authority for the
proposition that the court has power to enlarge time for an application for
review by virtue of Order 64, r. 6. Order 59, r. 3 is in identical terms with
the English Supreme Court Rules, Order 59, r. 4 (2) and the English courts had
ruled that the court has power under Order 64, r. 7 to enlarge time for an
application made under Order 59. In Ghana, the Supreme Court has also ruled
following the English decisions that the High Court has power under Order 64,
r. 6 to enlarge time appointed for making applications under O</main>