NYE vs. NYE [1967]DLCA1521

Date	1967-02-27
Suit No.
Citation No.	[1967]DLCA1521

AKUFO-ADDO C.J

OLLENNU JA

APALOO JA

LASSEY JA

AMISSAH J.A

J. B. QUASHIE-IDUN FOR THE APPELLANT.

K. NARAYAN FOR THE RESPONDENT.

[1967]DLCA1521
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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>[COURT OF APPEAL (FULL BENCH)]<o:p></o:p>[1967] GLR 76<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:
27 FEBRUARY
1967.<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 APPELLANT.<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">

AKUFO-ADDO C.J., OLLENNU, APALOO,
LASSEY AND AMISSAH JJ.A,<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AKUFO-ADDO C.J.<o:p></o:p>(In what
follows a reference to “the court” or to “this court” shall where the context
requires be read to include a reference to the predecessor of the existing
Court of Appeal.) This is an appeal with a history, and it arises out of a
matrimonial cause determined by the High Court, Accra, in 1963. On a petition
filed by the wife (respondent in the present appeal) the High Court, Accra, on
8 January 1963 pronounced a decree absolute for the dissolution of her marriage
with the appellant. An appeal from the decree absolute being a final judgment
must according to our rules be brought within three months of the date of
judgment unless an enlargement of time is granted under the provisions of rules
10 (1) and 10 (4) of the Supreme Court Rules, 1962 (L.I. 218).<o:p></o:p><o:p>&nbsp;</o:p>On 15
June 1963 the appellant applied to this court for an enlargement of time under
rule 10 (4) aforesaid to enable him to bring an appeal against the
pronouncement of the decree absolute, the main ground of his intended appeal
being that the High Court had no jurisdiction to determine the matter (the
parties were British nationals resident in Ghana at the time of the
presentation of the petition). It is clear that the application for the
enlargement of time was made after the expiry of one month after the expiry of
the three months limited by the rules for bringing the appeal more than four
months from the date of the decree), and the question that fell for
determination on the hearing of the application was whether the court had
jurisdiction to entertain such an application. An objection to the hearing of
the application was made by the respondent’s counsel on the ground that rule 10
(4) did not vest jurisdiction in the court, or in any other court, to entertain
an application for enlargement of time made later than four months from the
date of the judgment.<o:p></o:p><o:p>&nbsp;</o:p>The
decision of the court (Nye v. Nye [1964] G.L.R. 95, S.C. per Apaloo J., as he
then was) was, however, in favour of exercising jurisdiction, the court holding
at p. 98:<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">“that on
a true and proper construction of subrule (4) of rule 10 of the new rules, an
application made to this court after the expiration of four months from the
date of a final judgment, is not barred by subrule (4) of rule 10 of the new
rules and that this court is properly seised of that application and can, in a
fit case, “exercise the power of enlargement of time granted it by subrule (1)
of rule 10 of the new rules.”<o:p></o:p><o:p>&nbsp;</o:p>(The new
rules being the Supreme Court Rules, 1962.) The decision was clearly an
epoch-making one for there was, until then, no record in the history of appeals
in our courts of any claim by the Court of Appeal to unlimited jurisdiction in
allowing appeals to be brought at any time after judgment, that is at an
indefinite time after the expiry of the various periods limited for that
purpose by the rules.<o:p></o:p><o:p>&nbsp;</o:p>Obviously
inspired by this decision, another application in similar circumstances was
later made to this court in the case of Loga v. Davordzi [1966] G.L.R. 530,
S.C. for an enlargement of time in which to bring an appeal after the expiry of
four months from the date of judgment. The court (Sarkodee-Adoo C.J., Azu
Crabbe and Ollennu JJ.S.C.’ ) refused the application holding, per Ollennu
J.S.C. (Azu Crabbe J.S.C. dissenting on the interpretation of the rules but
concurring in the refusal only on the merits of the application) that it could
not consider itself bound to follow the decision in Nye v. Nye (,supra) on the
ground that the said decision was made per incuriam and holding further that on
a true construction of the rules this court, and indeed any other court, had no
jurisdiction to enlarge the time in which to appeal after the expiry of four
months from the date of the judgment.<o:p></o:p><o:p>&nbsp;</o:p>