NYE vs. NYE [1964]DLSC1934

Date	1964-02-29
Suit No.
Citation No.	[1964]DLSC1934

ADUMUA-BOSSMAN JSC

MILLS-ODOI J.S.C

APALOO J.

J. B. QUASHIE-IDUN FOR THE APPLICANT.

K. NARAYAN FOR THE RESPONDENT.

[1964]DLSC1934
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													<main id="main" class="content" style="min-height: 60rem" >NYE <o:p></o:p>vs. <o:p></o:p>NYE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 95<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:
29 FEBRUARY 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">

J. B. QUASHIE-IDUN FOR THE APPLICANT.<o:p></o:p>

K. NARAYAN FOR THE 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">

ADUMUA-BOSSMAN AND MILLS-ODOI JJ.S.C.
AND APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.<o:p></o:p>On 8
January 1963, the High Court, Accra, made absolute, a decree nisi which it
granted in favour of the petitioner-respondent dissolving the latter’s marriage
with the applicant. The husband who is the present applicant, seeks by this
motion, enlargement of time to file an appeal against the said decree on the
ground that the High Court had no jurisdiction to entertain the petition and
that therefore the proceedings and decree were a nullity.<o:p></o:p><o:p>&nbsp;</o:p>To
succeed in this application, it seems to me that the applicant must surmount
two legal hurdles, firstly, he must show that this court has power to grant
this motion and secondly, he must satisfy this court that in all the
circumstances, it is a proper case to grant an enlargement of time. That the
appeal is wholly out of time is not in dispute. Counsel for the applicant
however submits that this court has power to enlarge the time and points to
rule 10 (1) of the Supreme Court Rules, 1962,1 (hereinafter called the new
rules) as authority for his contention. The undoubted power of this court to
enlarge time seems ex facie to be limited by subrule (4) of rule 10 which
provides, in so far as material, as follows: [His Lordship here read the
provisions as set out in the headnote and continued.] This being a final
decree, the period of appeal expired on 8 April 1963 and if as counsel for the
respondent contends, this limitation applies to this court, the application for
enlargement of time should have been lodged not later than 8 May 1963. It was
lodged on 15 June 1963, and puts the applicant entirely out of court.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the applicant however contended that this limitation applies only to the
High Court and not to this court. He based his contention, if I understood him
aright, on the ground that subrule (4) provides that “Any such application
shall be made to the court below whose decision shall be final.” He argues that
“any such application” can only mean application brought within a period of one
month from the time limited for bringing appeals. He submits that an
application such as the present, brought after the expiration of the one month
is properly cognisable by this court, otherwise the power of this court to
enlarge the time granted by rule 10(1) cannot be exercised since application
brought within the one month can only be made to the court below by the
mandatory provision of the subrule.<o:p></o:p><o:p>&nbsp;</o:p>Contrariwise,
counsel for the respondent submitted that the limitation imposed by subrule (4)
of rule 10 applies not only to the court below but also to this court. He
contends, so I understand him, that there is nothing in the language of the
subrule which limits its applicability to the High Court. He relies on the
ruling of this court in the suit entitled Banson v. Abbey.2 In that case, an
appellant applied to this court for extension of time to execute the bond for
costs on appeal and also for stay of execution. At the hearing, the application
for stay of execution was abandoned and this court declined to grant the
application holding that the application ought to have been made to the court below.
I do not find it possible to extract the ratio decidendi of that ruling.
Although the court reproduced subrule (4) of rule 11 of the Supreme Court
(Court of Appeal) Rules, 1957,3 which is the statutory predecessor of the rule
in question, it made no pronouncement on it. In any event, the court was then
not concerned with the problem with which we are confronted, namely, whether
the limitation imposed by subrule (4) of rule 10 applies to this court.
Accordingly, in my judgment, that ruling sheds no light on the question we are
asked to decide.<o:p></o:p><o:p>&nbsp;</o:p>For
myself, I have been much attracted by the argument put up on behalf of the
applicant. The one solid point against it, is that if it is accepted, it gives
this court, so to speak, a carte blanche to enlarge time to appeal at any time.
The object of limiting the time within which an appeal should be brought is, I
apprehend, to make it impossible for an aggrieved person who went to sleep
after an adverse judgment against himself to complain and to disturb his opponent
with a stale grievance. This, I think, accords with the maxim vigilantibus et
non dormientibus jura subveniunt. But the tendency of modern legislation is to
give the courts wide discretion to do justice in appropriate cases unhampered
by rules. Although the legislature may have considered that the court below
should be restricted as to when the discretion of enlarging time may be
exer</main>