THOMPSON vs. MOUNEKE [2000]DLCA493

Date	2000-04-11
Suit No.
Citation No.	[2000]DLCA493

WOOD JA

BROBBEY JA

OWUSU-ANSAH JA

NATHANIEL MYERS FOR THE APPLICANT.

LARYEA FOR THE RESPONDENT.

[2000]DLCA493
																																						<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" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THOMPSON<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MOUNEKE<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1999-2000] 2 GLR 26<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 11 APRIL
2000<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NATHANIEL MYERS FOR THE APPLICANT.<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">

LARYEA FOR THE RESPONDENT. <o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Owusu-Ansah JA.
<o:p></o:p>Delivered the first ruling at the invitation of Wood JA. This is a
motion on notice by Nathaniel Myers for and on behalf of the applicant herein
praying this court “for extension of time within which to appeal and for a stay
of execution pending the hearing of the said application on the grounds
contained in the accompanying affidavit and on such other grounds as to this
Court may deem fit.”<o:p></o:p>The affidavit in support of the motion deposes to the fact that on
28 May 1999 the High Court, Accra delivered a judgment against the defendant-applicant
(hereinafter referred to as the applicant). According to the applicant when he
was served with entry of judgment, he consulted counsel for advice but had to
travel at short notice, only to find on his return that his solicitor had filed
an application to pay the judgment debt by instalment. The applicant states
that he was aggrieved by the said judgment and, accordingly, wanted to appeal.
However, he was informed by his solicitors that he was out of time. The
judgment was delivered on the 28 May 1999.<o:p></o:p>The motion on notice for extension of time within which to appeal
was filed in the court below within the requisite period on 30 September1999
and fixed for hearing on the 11 October 1999. Be that as it may, no decision or
ruling was given on the matter until the 22 December 1999. It went against the
applicant. On 23 December 1999, the instant repeat application was filed in
this court.<o:p></o:p>

Counsel for the respondent raised a preliminary point of law,
arguing that the application was out time and incompetent. 8503 Counsel
submitted further that the application should have been filed in the Court of
Appeal on or before 28 November 1999, ie within a period of six months from the
date of the judgment on 28 May 1999 in accordance with the provisions of rule 9(7)
of the Court of Appeal Rules, 1997 (CI 19) which provides 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">“(7) Notwithstanding, rule 28 of these Rules, no application shall
be made to the Court for extension of time within which to appeal after six
months from the date of the decision appealed against.” <o:p></o:p>In response thereto, counsel for the applicant submitted that his
application was well founded. He referred to rule 28 of CI 19 which provides: <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">“28. Subject to these Rules and to any other enactment, where
under any enactment an application may be made either to the Court below or to
the Court, it shall be made in the first instance to the court below, but if
the court below refuses to grant the application, the applicant shall be
entitled to have the application determined by the Court.”<o:p></o:p>Accordingly, says counsel, he submitted the application to the
court below in the first instance. Thereafter, the further application for
extension of time was made to this court under rule 9(4) of CI 19. This rule
states:<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">“(4) No application for extension of time in which to appeal shall
be made after the expiration of three months from the expiration of the time
prescribed by this rule within which an appeal may be brought.”<o:p></o:p>Counsel for the applicant submits further that he was therefore
within time because until the court below had failed or refused to grant the
application, his further right to come to this court would remain; his right is
in effect suspended. Counsel referred to rule 9(8) of the CI 19 which provides:<o:p></o:p>