MENSAH vs. ADJEI [1980]DLHC1609

Date	1980-03-14
Suit No.
Citation No.	[1980]DLHC1609

CECILIA KORANTENG-ADDOW J.

D. A. NII-APONSAH FOR THE APPLICANT.

KYE (ATA WITH HIM) FOR THE RESPONDENT.

[1980]DLHC1609
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs. <o:p></o:p>ADJEI<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 360<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:
14
MARCH, 1980<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">

D. A. NII-APONSAH FOR THE APPLICANT.<o:p></o:p>

KYE (ATA WITH HIM), 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">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>On 5
September 1979, this court presided over by Griffiths-Randolph J., made an
order transferring a suit which was pending before the District Court, Grade
II, Teshie, to the Circuit Court, Accra, on an application by Mr. Kye, counsel
for the defendant in the suit. The order of transfer was made when the
plaintiff had given evidence and called several witnesses.<o:p></o:p><o:p>&nbsp;</o:p>It would
seem that the ruling giving the order was delivered in the absence of the
parties; it was given during the long legal vacation. By a letter dated 15 October
1979, the registrar of this court sent a letter to Mr. Nii-Aponsah, counsel for
the plaintiff-applicant, informing him of the court’s ruling on 5 September.
The order of transfer was quoted in the letter. This letter reached counsel on
19 October.<o:p></o:p><o:p>&nbsp;</o:p>Not
unnaturally, the applicant felt very aggrieved about this order, but as the
time within which to appeal against the order had lapsed, he made a formal
complaint to the Chief Justice. The Chief Justice expressed his sympathy with
the applicant’s plight, but it would appear he could not help him much. The
applicant referred to a paragraph in the Chief Justice’s letter, and since his
counsel seems to place so much reliance on it, I will quote it here. It runs:<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">“His
lordship feels great sympathy for your position and is inclined to feel that if
he were a judge faced with a similar situation and on the material presented by
the parties, he would, in all probability, not have exercised the power of
transfer granted to a judge under section 102 of the Courts Act, 1971 (Act
372).”<o:p></o:p><o:p>&nbsp;</o:p>Encouraged
by this letter, the applicant filed this application under Order 64, r. 4 of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), for an extension of
time within which to appeal against the order dated 5 September 1979.<o:p></o:p><o:p>&nbsp;</o:p>Mr. Kye,
counsel for the defendant, has taken a preliminary objection to the application
on the grounds that it is misconceived. He referred to rules 10 and 28 of the
Court of Appeal Rules, 1962 (L.I. 218), and submitted that by computation of
time, a period of one month had lapsed since the expiration of time prescribed
within which this appeal should have been filed.<o:p></o:p><o:p>&nbsp;</o:p>On his
part, Mr. Nii-Aponsah argued that the Court of Appeal Rules only govern the
procedure at the Court of Appeal and that the rules applicable to this
application should be the High Court (Civil Procedure) Rules, 1954.
Specifically he relied on Order 64, r. 6 and argued that this court has
unlimited discretion subject only to the justice of the case to enlarge the
time for appeal.<o:p></o:p><o:p>&nbsp;</o:p>I adjourned
the matter for a few days for ruling. On the appointed day, I asked counsel on
both sides to submit arguments as to when the ruling transferring the case
should be taken as delivered. I took this course because when I examined the
records, there was no indication that the parties were ever notified that the
ruling would be given on the day o</main>