HUNGAROTEX FOREIGN TRADING CO. vs. BOATENG [1987]DLSC746

Date	1987-06-09
Suit No.
Citation No.	[1987]DLSC746

SOWAH C.J.

ADADE JA

TAYLOR JA

FRANCOIS J.S.C

WUAKU J.A.

J. AHENKORAH (WITH HIM ADUENI) FOR THE APPLICANT.

OPOKU-ADJAYE FOR THE RESPONDENTS.

[1987]DLSC746
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													<main id="main" class="content" style="min-height: 60rem" >HUNGAROTEX FOREIGN TRADING CO. <o:p></o:p>vs. <o:p></o:p>BOATENG <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 1 GLR 205<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
9 JUNE 1987<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. AHENKORAH (WITH HIM ADUENI) FOR THE APPLICANT. <o:p></o:p>

OPOKU-ADJAYE FOR THE RESPONDENTS.<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">

SOWAH C.J., ADADE, TAYLOR, FRANCOIS
JJ.S.C AND WUAKU J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>The
applicants who are a foreign business company, have by their lawful attorney
sworn to detailed and elaborated facts in an affidavit supporting the motion
before us for an extension of time within which to appeal. The respondent has
also sworn to a like affidavit in opposition. I think however that the simple
issue based on the preliminary objection raised on behalf of the respondent is
whether the motion of the applicants is statute-barred. In considering it
therefore the merit of the appeal is quite irrelevant and consequently the
facts of the substantive grounds of appeal so painstakingly averred in the
affidavits of the parties are not necessary for a ruling on this application.<o:p></o:p><o:p>&nbsp;</o:p>The
preliminary objection of counsel is based on the true construction of rule 8 of
the Supreme Court Rules, 1970 (C.I. 13) considered alongside the circumstance
and the date the applicants filed their motion. The circumstance is that on 13
November 1986 the Court of Appeal delivered judgment in the case [see [1984-86]
2 G.L.R. 612, C.A.] and on 13 May 1987 the applicants filed a motion supported
by affidavit asking for an extension of time within which to appeal to the
court against the said judgment of 13 November 1986. The application for
extention of time has been rendered necessary because of the provision of rule
8 of the said C.I. 13. The rule is 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">“8. (1)
Subject to the provisions of any enactment governing the same a civil appeal
shall be lodged within,<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">(a)
fourteen days, in the case of an appeal against an interlocutory decision, or<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">&nbsp;(b) three months, in the case of an appeal
against a final decision, unless in the case of an appeal against a final
decision, the Court extends the period within which an appeal may be lodged.
(2) The periods specified in the preceding sub-rule shall,<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">(a) in
the case of an appeal as of right, be calculated from the date of the decision
appealed against, and (b) in any other case, be calculated from the date on
which leave is granted. (3) A civil appeal shall be deemed to have been lodged
when the notice of appeal has been filed. (4) An application for the extension
of time within which to lodge an appeal in respect of a final decision shall
not be made after the expiration of three months from the expiration of the
period prescribed by this rule within which an appeal may be lodged. (5) An
application for the extension of time within which to lodge an appeal shall be
supported by an affidavit,<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;text-indent:.7pt;mso-pagination:none;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) Stating that leave has been granted
where necessary, and the date of the leave; (b) setting forth good and
substantial reasons for the application; and (c) giving the grounds of appeal
which, prima facie, show good cause that the appeal is of substance. (6)
Subject to the provisions of sub-rule (4) of this rule where a person has
applied to the Court below for an extension of time within which to lodge a
civil appeal and a period of not less than one month has expired since the time
when the said application was made without the Court below having granted or
refused the application, the appellant shall be entitled to move the Court to
have the application determined by the Court.”<o:p></o:p><o:p>&nbsp;</o:p>It seems
that as this is a final decision of the Court of Appeal the applicants had by
right three months calculated from 13 November 1986 within which to lodge their
appeal as is provided in sub-rules (1) (b) and (2) (a) of rule 8 of C.I. 13; if
they failed to exercise this right as they had clearly done in this case, then
by the combined effect of the apparent proviso to sub-rule (1) (b) and the
substantive provision of sub-rule 4 of rule 8, they have a right to apply for
an extension of time within which to lodge their appeal provided their
application for the said extension is not made after the expiration of three
months from the expiration of the three months’ period within which an appeal
as of right is permitted under the said rule 8 (1) (b).<o:p></o:p>