STANDARD CHARTERED BANK (GH) LTD vs. AGOL COMPANY LIMITED [1992]DLCA4979

Date	1992-07-23
Suit No.	[1992 – 1993] 3 G B R 1633 – 1636 C.A
Citation No.	[1992]DLCA4979

FORSTER JA

AMUAH JA

ARYEETEY J

[1992]DLCA4979
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >STANDARD CHARTERED BANK
(GH) LTD<o:p></o:p>vs.<o:p></o:p>AGOL COMPANY LIMITED<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 1633 – 1636 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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 23 JULY 1992<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">

FORSTER
JA, AMUAH JA, ARYEETEY J<o:p></o:p>

</div>FORSTER JA. <o:p></o:p>The
applicants, as defendants in the District Magistrate Grade I Court, Takoradi,
lost in an action instituted by the respondent-company for damages. The
applicants’ appeal to the High Court Sekondi was dismissed on 17 January 1992.
Aggrieved by that judgment, on 20 May 1992 the applicants sought special leave
of the High Court to appeal to the Court of Appeal pursuant to section 10(3) of
the Courts Act 1971 (Act 372) as amended by the Courts (Amendment) Law, 1987
(PNDCL 191) section 10(3)(b) which provides that:<o:p></o:p>&nbsp;“…where a decision of the High Court confirms
the decision appealed against from a lower court, an appeal from the High Court
may lie to the Court of Appeal with the leave of the High Court which may on
its own motion or on an oral application by the aggrieved party decide whether
or not to grant leave to appeal, and where the High Court refuses to grant the
leave to appeal the aggrieved party may apply to the Court of Appeal for such
leave.”<o:p></o:p>Refusing
the application, the learned High Court judge said:<o:p></o:p>“From the Court of Appeal Rules 1962
(LI 218) rule 9(1) the applicants ought to have applied for leave to appeal
within 14 days from the 17 January 1992, the date of the judgment of the High
Court. This means the application for leave is being made more than four months
after the judgment against which leave to appeal is being brought.”<o:p></o:p>Rule
9(1) of LI 218 indeed requires of an applicant who intends to apply for special
leave to do so “within fourteen days from the date of the decision against
which leave to appeal is sought.” Counsel for the applicant contended with
remarkable vim that in as much as section 10(3) of Act 372 did not prescribe
any period within which an applicant for leave may apply, he is unfettered in
time. By his submission, the limit is eternity or doomsday. Counsel further
argued that rule 9(1) of LI 218 did not prescribe a time limit for the
application, where no such provision was made in section 3(b) of the Courts Act
1971 (Act 372). In his view therefore rule 9(1) of LI 218 being a provision of
a subsidiary legislation, which in fact it is, cannot modify section 3(a) of
Act 372 by prescribing a limitation period for an application for leave to
appeal.<o:p></o:p>The
Court of Appeal Rules 1962 (LI 218) is indeed a subsidiary legislation enacted
pursuant to powers conferred under section 87 of the Courts Act 1960 (CA 9) and
continued in force by section 114(2) and the 4th Schedule of the Courts Act
1971 (Act 372). LI 218 is therefore a provision of the enabling Act, Act 372.
Except where a rule of LI 218 is in conflict with Act 372 or is in excess of
the enabling powers conferred by the Act, it is intra vires the Act and should
apply. Rule 9(1) of LI 218 is therefore valid and its provisions must apply. As
the High Court found, the application having been made on 20 May 1992, about
four months after the decision delivered on 17 January 1992 it was incompetent.
The delay was not only inordinate; it violated the mandatory requirement of
rule 9(1) of LI 218.<o:p></o:p>The
jurisdiction of this court to consider an application for special leave is
conditioned upon a refusal of the court below to grant such application. It
cannot be said that there was in law any application before the High Court
since the purported application was incompetent, not having been made within
the statutory limit of fourteen days; a condition precedent to a valid and
competent application for special leave. This procedural default not having
been remedied by an application to the court below to enlarge time, the instant
application cannot succeed. As was observed by the Supreme Court in considering
an application in similar circumstances under the rules of that court in the
case of Khoury v Mitchual [1989-90] 2 GLR 256:<o:p></o:p>“To entertain that application was to
ignore the applicants’ default in the court below, and sub-silentio import into
the proceedings in the court below an extension of time in favour of the
applicants, an extension of time they never sought and let alone considered and
granted.”<o:p></o:p>In
the result, the application is without merit and it is accordingly dismissed.<o:p></o:p><o:p>&nbsp;</o:p>AMUAH JA.
(signed)<o:p></o:p><o:p>&nbsp;</o:p>

ARYEETEY J.
(signed)<o:p></o:p></main>