NYE v. NYE

JUDGMENT OF AKUFO-ADDO C.J.

(In what follows a reference to "the court" or to "this court" shall where the context requires be read to include a reference to the predecessor of the existing Court of Appeal.) This is an appeal with a history, and it arises out of a matrimonial cause determined by the High Court, Accra, in 1963. On a petition filed by the wife (respondent in the present appeal) the High Court, Accra, on 8 January 1963 pronounced a decree absolute for the dissolution of her marriage with the appellant. An appeal from the decree absolute being a final judgment must according to our rules be brought within three months of the date of judgment unless an enlargement of time is granted under the provisions of rules 10 (1) and 10 (4) of the Supreme Court Rules, 1962 (L.I. 218).

On 15 June 1963 the appellant applied to this court for an enlargement of time under rule 10 (4) aforesaid to enable him to bring [p.78] an appeal against the pronouncement of the decree absolute, the main ground of his intended appeal being that the High Court had no jurisdiction to determine the matter (the parties were British nationals resident in Ghana at the time of the presentation of the petition). It is clear that the application for the enlargement of time was made after the expiry of one month after the expiry of the three months limited by the rules for bringing the appeal more than four months from the date of the decree), and the question that fell for determination on the hearing of the application was whether the court had jurisdiction to entertain such an application. An objection to the hearing of the application was made by the respondent's counsel on the ground that rule 10 (4) did not vest jurisdiction in the court, or in any other court, to entertain an application for enlargement of time made later than four months from the date of the judgment.

The decision of the court (Nye v. Nye [1964] G.L.R. 95, S.C. per Apaloo J., as he then was) was, however, in favour of exercising jurisdiction, the court holding at p. 98:

"that on a true and proper construction of subrule (4) of rule 10 of the new rules, an application made to this court after the expiration of four months from the date of a final judgment, is not barred by subrule (4) of rule 10 of the new rules and that this court is properly seised of that application and can, in a fit case, "exercise the power of enlargement of time granted it by subrule (1) of rule 10 of the new rules."

(The new