STATE v. ASANTEHENE'S DIVISIONAL COURT B1; EX PARTE KUSADA

JUDGMENT OF KORSAH C.J

[His lordship stated the facts as contained in the headnote and continued:] The procedure regulating an application for the writ of certiorari is provided by the Supreme [High] Court (Civil Procedure) Rules, [1954],1 Order 59, r. 3 thus:

"Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired."

Under special circumstances, the court or a judge may enlarge the time limited for making the application under Order 64, r. 6 of the above-mentioned rules. The said Orders 59 and 64 of our rules of court are replicas of the English Rules of Supreme Court, by virtue of which an application for an order of certiorari is either granted or refused.

[p.244]

The learned judge of the court below, upon an ex parte motion by the applicant made the following order on the 5th June, 1961, "Court: I think on the facts of this case I ought to exercise my discretion and I enlarge the time for bringing this application. I also grant leave to apply for an order of certiorari."

At the subsequent hearing of the application pursuant to the above order, counsel for the respondent contended that leave had been wrongly granted contrary to Order 59, r. 3. In reply counsel for the appellant stated that "time had already been enlarged by the court." It is obvious from the record that no application for an extension, supported by affidavit setting out the facts upon which the extension might be granted had been filed at the time the extension was granted or at any time during the hearing before the court. But it appears that at the hearing of the ex parte motion for leave, counsel for the applicant verbally applied for an extension.

While it is correct to say that, if the power is conferred, a judge may exercise his discretion, it should be remembered that such discretion should be exercised judicially; if therefore the conditions imposed therewith have not been fulfilled, it is open to the party aggrieved by the exercise of such discretion, to raise the matter