HASNEM ENTERPRISES LTD vs. ELECTRICITY CORPORATION OF GHANA [1992]DLCA4907

Date	1992-01-21
Suit No.	[1992 – 1993] 3 G B R 1008 – 1011 C.A
Citation No.	[1992]DLCA4907

AMUAH JA

ADJABENG JA

AMMAH J

NUTIFAFA KUENYEHIA (WITH HIM NUTSUKPUI) FOR THE APPLICANTS.

NO APPEARANCE BY OR FOR THE RESPONDENTS.

[1992]DLCA4907
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													<main id="main" class="content" style="min-height: 60rem" >HASNEM ENTERPRISES LTD<o:p></o:p>vs.<o:p></o:p>ELECTRICITY CORPORATION OF GHANA<o:p></o:p>[COURT
OF APPEAL]<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">

[1992
– 1993] 3 G B R 1008 – 1011 C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:&nbsp; 21ST JANUARY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NUTIFAFA KUENYEHIA (WITH HIM NUTSUKPUI) FOR THE APPLICANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO APPEARANCE BY OR 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 1.0pt 0in">

AMUAH JA, ADJABENG JA,
AMMAH J<o:p></o:p>

</div>ADJABENG
JA. <o:p></o:p>The applicants applied for
extension of time to appeal to the Supreme Court against the judgment of the
Court of Appeal dated 11 July 1991 dismissing the applicant’s appeal by a
majority decision that confirmed the decision of the High Court which had
dismissed the applicants' claim against the respondents. Counsel for the
applicants applied orally at the delivery of the judgment in the Court of
Appeal under section 3(2) of the Courts (Amendment) Law 1987 (PNDCL 191) for
leave to appeal to the Supreme Court and the Court of Appeal granted leave.<o:p></o:p>Under the Supreme Court
Rules 1970 (CI 13) rule 8(1)(b), the appeal ought to have been lodged within 3
months. The applicants failed to lodge their appeal within the three-month
period. It therefore prays in this application for extension of time to lodge
the appeal.<o:p></o:p>The main reason why it
failed to lodge the appeal within the specified period, according to their affidavit
in support of the application, is that it could not secure the certified true
copy of the judgment of the court even though it had applied for it.<o:p></o:p>The point that seriously
engaged my attention during the hearing of this application was whether, having
obtained leave under PNDCL 191 to appeal against the decision of this court,
and having failed to file the appeal within time, the applicants were still
entitled to an extension of the period within which to appeal.<o:p></o:p>Counsel for the applicants
contended that since leave to appeal had been granted, the normal rules of
court would apply and that under rule 8 of Supreme Court Rules 1970 (CI 13),
this court has power to extend the time. It must be observed that the
defendants-respondents did not appear at the hearing of the application nor had
they filed an affidavit in opposition even though they had been served with the
application.<o:p></o:p>I agree with the
applicants’ counsel that this court has power to extend the time for appealing;
but the application for the extension should not be made after the expiration
of three months from the expiration of the period prescribed for appealing
against a final decision, as in the present case. See rule 8(4) of CI 13. In
other words, provided the application for extension is filed within six months
from the date of a final decision of the court, the Court of Appeal has power
to extend the time. In Republic v Circuit Court Judge, Tamale,&nbsp; ex parte Volta Senior Game Warden [1984-86] 2
GLR 372 particularly holding 4 at page 374, the Supreme Court held as follows:<o:p></o:p>“(4) Rule 8(4) of CI 13 completely
extinguished a person's right to apply for an extension of time, after a grace
period of three months. LI 218 contained a similar ban under its rule 10 (5)
implying that notwithstanding the wording of rule 10 (6) of LI 218, no
application could lawfully be entertained after six months in the case of a
final decision. In the instant case, the judgment sought to be appealed against
was given on 4 November 1985 and the six months' deadline expired on 3 May
1986. Since the applicants’ motion was filed on 20 May 1986, i.e. seventeen
days outside the permissible period, the Supreme Court had no jurisdiction
under CI 13, r 8 (4) to entertain the application.”<o:p></o:p>See also Hungarotex
Foreign Trading Co v Boateng [1987-88] 1 GLR 205, SC.<o:p></o:p>In the application before
us, the judgment which the applicants wish to appeal against was delivered on
11 July 1991. The application for extension of time was filed on 14 November
1991, four months and two days after the said judgment. This clearly being
within the permissible period of six months, we have power or jurisdiction to
extend the period. But have the applicants satisfied rule 8 (5) of CI 13? This
sub-rule provides that:<o:p></o:p>“An application for the extension of time
within which to lodge an appeal shall be supported by an affidavit,<o:p></o:p>(a) stating that leave has been
granted where necessary, and the date of the leave;<o:p></o:p>(b) setting forth good and substantial
reasons for the application; and<o:p></o:p>(c) giving the grounds of appeal
which, prima facie, show good cause that the appeal is of substance.”<o:p></o:p>I have no doubt that the
applicants have satisfied the conditions set out in (a) and (b) of rule 8 (5)
supra. There is evidence that the applicants were granted leave on 11 July 1991,
the very date the judgment was delivered, to appeal against it. The applicants
have also deposed that they could not secure a certified true copy of the
judgment to enable them file meaningful grounds of appeal. I think, however,
that they have not been able to satisfy the third condition stated in the said
sub-rule 5, namely that they should give the grounds of appeal which, prima
facie, show good cause that the appeal is of substance. The applicants have
only deposed in their affidavit, paragraphs 14 and 15, that they believe that
the chances of the appeal succeeding are very bright, and that “the case raises
several important issues of law and it is ultimately in the public interest
that the Supreme Court should have the opportunity to pronounce on the very
important issues raised by the appeal.”<o:p></o:p>No doubt, the applicants
were mandatorily required to satisfy the third condition in rule 8(5)(c).
Having regard, however, to the fact that the decision against which they intend
to appeal was a split decision of 2 to 1, and the fact that leave to appeal
against that decision was readily granted by the court on an oral application
made immediately after the delivery of the judgment, I think that in the
interest of justice the applicants should not be denied the opportunity to
appeal. In the peculiar circumstances of this case, therefore, I would grant
the application.<o:p></o:p><o</main>