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March 14, 1980
HIGH COURT
GHANA
CORAM
JUDGMENT OF CECILIA KORANTENG-ADDOW J.
On 5 September 1979, this court presided over by Griffiths-Randolph J., made an order transferring a suit which was pending before the District Court, Grade II, Teshie, to the Circuit Court, Accra, on an application by Mr. Kye, counsel for the defendant in the suit. The order of transfer was made when the plaintiff had given evidence and called several witnesses.
It would seem that the ruling giving the order was delivered in the absence of the parties; it was given during the long legal [p.363] vacation. By a letter dated 15 October 1979, the registrar of this court sent a letter to Mr. Nii-Aponsah, counsel for the plaintiff-applicant, informing him of the court's ruling on 5 September. The order of transfer was quoted in the letter. This letter reached counsel on 19 October.
Not unnaturally, the applicant felt very aggrieved about this order, but as the time within which to appeal against the order had lapsed, he made a formal complaint to the Chief Justice. The Chief Justice expressed his sympathy with the applicant's plight, but it would appear he could not help him much. The applicant referred to a paragraph in the Chief Justice's letter, and since his counsel seems to place so much reliance on it, I will quote it here. It runs:
"His lordship feels great sympathy for your position and is inclined to feel that if he were a judge faced with a similar situation and on the material presented by the parties, he would, in all probability, not have exercised the power of transfer granted to a judge under section 102 of the Courts Act, 1971 (Act 372)."
Encouraged by this letter, the applicant filed this application under Order 64, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), for an extension of time within which to appeal against the order dated 5 September 1979.
Mr. Kye, counsel for the defendant, has taken a preliminary objection to the application on the grounds that it is misconceived. He referred to rules 10 and 28 of the Court of Appeal Rules, 1962 (L.I. 218), and submitted that by computation of time, a period of one month had lapsed since the expiration of time prescribed within which this appeal should have been filed.
On his part, Mr. Nii-Aponsah argued that the Court of Appeal Rules only govern the procedure at the Court of Appeal and that the rules applicable to this application should be the High Court (Civil Procedure) Rules, 1954. Specifically he relied on Order 64, r. 6 and a
AI Generated Summary
Cecilia Koranteng-Addow J. considered an application to enlarge time for appealing a High Court order that, on 5 September 1979, transferred a suit from the District Court, Grade II, Teshie, to the Circuit Court, Accra, after the plaintiff had led substantial evidence. The ruling was delivered during the legal vacation in the absence of the parties, and the registrar’s notification letter of 15 October reached plaintiff’s counsel, Mr. Nii‑Aponsah, on 19 October. Defendant’s counsel, Mr. Kye, raised a preliminary objection asserting the application, filed on 17 January 1980, was out of time under the Court of Appeal Rules. The court held that a notice of appeal is not a pleading, and, to prevent injustice, exercised the power under Order 52 r. 3 to post‑date the effective date to 19 October. Recalculating the deadlines, the application was timely. On the merits, the court found good and substantial reasons, determined the ruling was appealable, granted extension, directed filing within seven days, and awarded ¢100 costs.