AKUESON vs. FRED ASHIE AND CO. LTD. [1989]DLSC519

Date	1989-10-21
Suit No.
Citation No.	[1989]DLSC519

ARYEE AG. J.

[1989]DLSC519
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													<main id="main" class="content" style="min-height: 60rem" >AKUESON <o:p></o:p>vs. <o:p></o:p>FRED ASHIE AND CO. LTD. <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1989-90]2 GLR 47<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:
21 OCTOBER
1988<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">

<o:p>&nbsp;</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">

ARYEE AG. J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARYEE AG. J.<o:p></o:p>This is
an application for enlargement of time within which to appeal against the
judgment delivered against the defendant by Osei-Hwere J.A. sitting as an
additional High Court judge, dated 18 September 1987.<o:p></o:p>The
grounds stated in the supporting affidavit are that:<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">“3.
Neither my counsel nor I was present when judgment was delivered. 4. Neither my
counsel nor I was notified of the judgment date. 5. Neither my counsel nor I
have since the said judgment date been served with any formal notice of the said
judgment. 6. That judgment was delivered during the High Court’s legal vacation
and at a time when the court should not have been sitting. 7. That a search
conducted on 18 December 1987 shows that the only notification of judgment was
by posting on the High Court notice board on 25 November 1987.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant (hereafter called the applicant) said further that he did not see the
said High Court notice board posting, and so did not know of the judgment until
he was hinted of same by a court official, some time in December last year. He
said further that during the months of September, October and November 1987, he
spent quite substantial periods undergoing medical treatment for an asthma
condition. Among the grounds of appeal stated are that:<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">“1. The
learned trial judge erred in relying on a statement of account (exhibit B)
which was neither signed nor authenticated and is otherwise inadmissible in
evidence.<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">2. The
learned trial judge failed to take due cognisance of payments made by the
appellant especially those supported by exhibits 1 and 4. 3. The learned trial
judge erred in delivering judgment within the legal vacation without the
consent of the appellant or his counsel. Applicant therefore prays that the
court grants an enlargement of time to enable him to appeal against the said
judgment.”<o:p></o:p><o:p>&nbsp;</o:p>In
opposing the application, the plaintiff-respondent who is the managing director
of the plaintiff-judgment creditor company said that there were two writs
issued against the defendant-judgment debtor-applicant. One was for the
recovery of ¢11,552.80 being the balance due from the applicant herein on the
cost of secondhand clothes ordered. The other was for the recovery of 109 bales
of secondhand clothing unlawfully taken possession of by the senior registrar
of the High Court, who was appointed receiver and manager to take possession of
a different lot of secondhand clothing which formed the subject matter of
another and different suit altogether. This action, the respondent alleges, was
induced and urged on by the applicant herein.<o:p></o:p><o:p>&nbsp;</o:p>After the
judgments were delivered in the said suits, the defendant could not be reached
to effect personal service of the judgment after trial. The
plaintiff-respondent was therefore compelled to serve same by an order of
substituted service. The respondent further contends that by filing the notice
of appeal on 4 January 1988 the applicant is out of time and has offered no
valid grounds for this court to enlarge time to enable him to file an appeal
out of time.<o:p></o:p><o:p>&nbsp;</o:p>Under
Order 58, r. 3 (1) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A),
the rules governing leave to appeal is that no application for enlargement of
time in which to appeal shall be made after the expiration of the time
prescribed within which an appeal may be brought. The rules specify that the
time within which to appeal in the case of an interlocutory decision is
fourteen days, and in the case of a final judgment or decision it is three
months. No extension of time will be granted after the expiration of the three
months and fourteen days as the case may be: se</main>