THE REPUBLIC v. THE HIGH COURT (COM. DIV.) KUMASI EX PARTE: FIRST ATLANTIC BANK LIMITED

RULING

BENIN, JSC:-

Currently pending before the Supreme Court is an application for an order of certiorari to quash a decision of the High Court, Commercial Division, Kumasi. The interested parties have since filed their statement of casein response to one filed by the applicant. By the present application, the applicant seeks an extension of time within which to file a reply to the interested parties’ statement of case, relying on Rule 79 of the Supreme Court Rules, 1996 (C.I. 16). The reason proffered for the delay in the affidavit in supportis that counsel for the applicant was indisposed hence his inability to complete the draft reply within the time stipulated by the rules. They therefore want the court to waive the non-compliance with the rules and admit the reply.

The application appeared at first glance to be harmless requiring little or no opposition. However, the interested parties have seriously opposed the application. I am thus obliged to examine the merits of the competing arguments. The affidavit in opposition raises several issues; the relevant ones are summed up as follows:

That the application is unknown to the rules of the court and to that extent it ought to be dismissed at the threshold-paragraph 3;

That the relief sought is misconceived, nebulous and absolutely without a legal basis-paragraph 4;

The application does not disclose a valid and subsisting Chambers registration number and same is incompetent, void and infringes the law and should be dismissed in limine-paragraph 5;

The affidavit in support is fundamentally defective and the supposed deponent is not a proper person to depose to the affidavit-paragraph 6;

There is no evidence in support of counsel’s indisposition-paragraph 8;

The rules of court must be scrupulously followed-paragraphs 10-12.

By virtue of Rule 64(2) of C.I. 16 the applicant was entitled to file a reply within seven days of being served with the respondent’s statement of case. The applicant concedes they were out of time hence the application for extension of time. Counsel for the applicant also conceded that there is no explicit provision under C.I. 16 enabling a defaulting party to apply for extension of time to file a reply under rule 64. However, in counsel’s view rule 79 gives the court ample discretionary power to allow a party to file a process out of time. He reiterated the sole reason for the default to be his own ill health. Counsel alluded to the fact that this is a discretionary remedy,