ADOLF MOUNEKE vs. MOSES ADEYINKA THOMPSON [2000]DLCA6212

Date	2000-04-11
Suit No.	CIVIL MOTION NO.: 344/99.
Citation No.	[2000]DLCA6212

WOOD JA.

BROBBEY JA.

OWUSU-ANSAH JA.

[2000]DLCA6212
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													<main id="main" class="content" style="min-height: 60rem" >ADOLF
MOUNEKE <o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MOSES
ADEYINKA THOMPSON<o:p></o:p>&nbsp;(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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MOTION NO.: 344/99.&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;&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: 11TH APRIL, 2000.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">WOOD JA., BROBBEY JA., OWUSU-ANSAH
JA.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>OWUSU-ANSAH,
JA: <o:p></o:p>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 the 28/5/99 the
High Court sitting in Accra delivered a judgment against the
Defendant/Applicant. <o:p></o:p>According
to the Defendant/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 installment. <o:p></o:p>The
Defendant appellant 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 28/5/99. <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 the 30/9/99 and fixed for hearing on
the 11/10/99. Be that as it may no decision or ruling was given on the matter
until the 22/12/99. It went against the applicant. <o:p></o:p>On
the 23/12/99, 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 of time and incompetent”. Counsel submitted further that
the application should have been filed in the Court of Appeal on or before the
28/11/99 i.e. within a period of six months from the date of the judgment on
the 28/5/99 in accordance with the provisions of Rule 9(7) of CI 19: which
provides that "(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 there to counsel for the defendant/applicant submitted that his
application was well founded. He refers to Rule 28, which provides: <o:p></o:p>“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) This Rule states. <o:p></o:p>“No
application for extension of time in which to apply shall be made after the
expiration of 3 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 respondent 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 refers to Rule 9(8) which provides: “For the purposes of
Rule 4 of this Rule and Rule 28 where a person has applied to the Court below
for extension of time within which to appeal and after a period of not less
than one month the Court below fails or refuses to grant the application, the
applicant may subject to sub-Rule (5) of this rule, move the court to determine
the application”. <o:p></o:p>The
operative words in this Rule are "fails or refuses". In this context,
in my view, “to fail” presupposes inaction, whereas “to refuse” implies a
positive act. According to the Oxford Reference Dictionary to fail means “not
to succeed, to disappoint, to let down, to neglect, to forget, to be unable”. <o:p></o:p>“To
refuse”, on the other hand, is “to reject, to say or show that one is unwilling
to accept, give or do; to indicate unwillingness, not to grant a request made”.
<o:p></o:p>