QUAGRAINE v. DAVIES
1960
COURT OF APPEAL
CORAM
- KORSAH, C.J.
- VAN LARE, J.A.
- GRANVILLE SHARP, J.A
Areas of Law
- Civil Procedure
1960
COURT OF APPEAL
CORAM
AI Generated Summary
The case underlines the principle that the time to appeal begins from the date of the original judgment, not from a subsequent ruling on an application for review. The court determined that the review proceedings did not reopen the original case or extend the time for appeal. Consequently, the appeal, filed more than a year after the final judgment, was dismissed for being out of time.
Granville Sharp, J.A. delivered the judgment of the court: The question that arises for determination in this appeal involves the interpretation to be placed upon Order 39 of the Rules of the High Court and the rules made under the order. It comes before us on appeal (a) from a judgment of Acolatse, J. dated the 21st December, 1957 and (b) from a ruling of the same judge dated the 31st October, 1959. The argument placed before us by Mr. Bentsi-Enchill for the appellant—the plaintiff in the suit—expressed succinctly, is
(a) that by his ruling of the 31st October, 1959 the learned judge granted a review of his earlier final judgment by confirming it,
(b) that, therefore, if the ruling is set aside on appeal, the earlier judgment may also be set aside, if it should appear that on the merits of the case it was erroneous, and
(c) that in any event the time for appealing against the judgment of the 21st December, 1957 begins to run only from the 31st October, 1959, because it was then that the learned judge confirmed it, so as to make it his final judgment. On this basis it was submitted that the Notice of Appeal was filed within the time fixed by the Rules.
Mr. Bentsi-Enchill has brought to our notice certain authority upon which he seeks to rely in support of his contention. Firstly, he cites from Woodroffe and Ali on Civil Procedure in British India (2nd Ed. at p. 1378) a passage which he submits is in pari materia with the present case. The passage is as follows:—
"When a case is re-heard on review the order on the re-hearing is a new decree whatever the result is even though on the application for review coming on for re-hearing the Judge allowed it on a comparatively insignificant point and forthwith directed a clerical error in the decree to be rectified; and the time within which to appeal on the decree runs from the date of such order."
Counsel stresses the last sentence of this citation. Next, he has called to our attention a passage from the judgment of Gardiner Smith, J. in the case of Effom and Others v. Frumah and Others. The case in question arose under the old Order 42 rule 1, which we do not doubt has not been changed in material respects for the purposes of this appeal by Order 39 rule 6, on which he places so much reliance. What Gardiner Smith, J. said was:
"In my opinion Order 42 r. 1 reopens the whole case, and enables the Court to make any Order whatsoever. This is the effect of the Indian Rules, which are similar to our own." (Div.