NIBOI vs. ADDY AND OTHERS [1992]DLCA5047

Date	1992-06-25
Suit No.	[1992 – 93] 4 G B R 1520 – 1524 C.A
Citation No.	[1992]DLCA5047

ESSIEM JA

ADJABENG JA

LUTTERODT JA

BORTEY LAMPTEY FOR THE APPLICANT.

QUANSAH (WITH HIM PATRICK BAIDEN) FOR THE RESPONDENTS.

[1992]DLCA5047
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													<main id="main" class="content" style="min-height: 60rem" >NIBOI<o:p></o:p>vs.<o:p></o:p>ADDY AND OTHERS<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 – 93] 4 G B R 1520 – 1524 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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25 JUNE 1992<o:p></o:p>

QUANSAH
(WITH HIM PATRICK BAIDEN) 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">

ESSIEM
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>ADJABENG JA. <o:p></o:p>The
plaintiffs-respondents took action by originating summons in the High Court,
Accra, for the determination of certain questions. The court determined the
questions in favour of the respondents. The defendant-applicant, being
dissatisfied with the decision of the High Court appealed to this court. This
court, on 20 February 1992 dismissed the defendant-applicant’s appeal and
confirmed the decision of the High Court. The applicant, if desirous of
appealing against the decision of this court, would, by the provisions of the
Courts (Amendment) Law 1987 (PNDCL 191), require leave to do so, having lost
twice. She could, when the judgment of this court was pronounced, immediately
have applied orally for leave under section 3(2) of the Courts Act 1971 (Act
372), as amended by section 1 of PNDCL 191. But she did not do so. On 19 May
1992 however, almost three months after the delivery of the Court of Appeal
decision, she filed the application now before us praying for leave to appeal
against the decision of this court.<o:p></o:p>At
the hearing of the application counsel for the respondents raised a preliminary
objection to the application. His contention was that the application was
incompetent, as it had not been filed within 14 days from the date of the
judgment against which the leave to appeal was being sought. Counsel relied on
PNDCL 191 and rule 9 (1) of LI 218, the Court of Appeal Rules 1962.<o:p></o:p>Counsel
for the applicant replied that PNDCL 191 under which the application was
brought never mentioned “special leave” as in rule 9 (1) of LI 218 where it is
provided specifically that an application for special leave ought to be brought
within 14 days. Counsel therefore contended that rule 9 (1) of LI 218 was
irrelevant or inapplicable to this application. In counsel’s view, no time
limit has been set for an application for leave to appeal under PNDCL 191. Both
counsel cited no authority.<o:p></o:p>It
is true that no time limit has been mentioned in section 3 (2) of the Courts
Act 1971 (Act 372), as amended by section 1 of PNDCL 191, within which an
application for leave to appeal can be brought where the applicant has lost
twice in the matter. This section deals with such applications in respect of
appeals from the Court of Appeal to the Supreme Court. Section 19(3)(b) of the
Courts Act 1971 (Act 372) as amended by section 2 of PNDCL 191 deals with
applications for leave to appeal from the High Court to the Court of Appeal.<o:p></o:p>It
is true therefore, that rule 9(1) of LI 218 which deals with special leave in
respect of appeals from the High Court to the Court of Appeal is not applicable
to the present application for leave to appeal from the Court of Appeal to the
Supreme Court. That is not to say, however, that no provision exists for such
applications. I think that the relevant or applicable rule can be found in the
Supreme Court Rules, 1970 (CI 13).<o:p></o:p>Rule
7(1) of the Rules provides as follows:<o:p></o:p>“An application for leave to appeal
pursuant to the provisions of paragraph (c) of clause (1) of article 105 of the
Constitution shall be by motion on notice in the Form 2 set out in the First
Schedule to these Rules which shall be filed with the Registrar of the court
below within fourteen days of the date of the decision against which leave to
appeal is sought.”<o:p></o:p>The
constitution referred to is the 1969 Constitution. Article 105 (1)(c) referred
to in the above rule provides as follows:<o:p></o:p>“105(1) An appeal shall lie from a
judgment, decree or order of the Court of Appeal to the Supreme Court,<o:p></o:p>(c) with the leave of the Court of
Appeal, in any other cause or matter, civil or criminal, where the Court of
Appeal is satisfied that the case involves a substantial question of law or is
of public importance.”<o:p></o:p>This
constitutional provision has been re-enacted in section 3(3) of the Courts Act
1971 (Act 372) as amended by section 1 of PNDCL 191. The amended section
provides as follows:<o:p></o:p>“An appeal shall lie from a judgment,
decree or order of the Court of Appeal to the Supreme Court with the leave of
the Court of Appeal in any other cause or matter, whether civil or criminal
where the Court of Appeal is satisfied that the case involves a substantial
question of law or is of public importance.”<o:p></o:p>In
Hammond v Odoi [1972] 2 GLR 459, CA counsel for the respondents in an
application for leave to appeal, similar to the application before us, raised
an objection to the application. His contention, like the contention of counsel
for the respondents in the present application, was that: “the motion for the
pre-requisite order for leave was improperly before the court, it having been
filed later than fourteen days of the date of the decision as prescribed by
rule 7(1) of the Rules of Supreme Court, 1970 (CI 13).” The court was of the
view that such a submission “was not only invulnerable, but also unanswerable.”<o:p></o:p>Even
though rule 7(1) of CI 13 refers specifically to the provision in the 1969
Constitution which has been re-enacted in PNDCL 191, as explained above, that
is, in section 3(3) of Act 372 as amended by section 1 of PNDCL 191, since this
section, and section 3(2) of Act 372 as amended under which this application
has been brought, both require that leave to appeal should be sought, it seems
logical that the law-making authority intended nothing other than that the
procedure prescribed in rule 7(1) should also apply to section 3(2) of Act 372
as amended. In other words, rule 7(1) provides that the a</main>