Asiedu Vrs T & T Properties (H3/603/05) [2005] GHACA 4 (03 February 2005);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL [CIVIL DIVISION]

ACCRA

 

CORAM  -  FARKYE [PRESIDING], JA

                    TWENEBOA-KODUA, JA

                    KANYOKE, JA

 

                                                                                  H3/603/05

3RD FEBRUARY,  2006

 

MARK ASIEDU               …            PLAINTIFF/RESPONDENT

 

    V E R S U S

 

T & T PROPERTIES       …            DEFENDANTS/APPLICANTS

               ---------------------------------------------------

                                   R  U  L  I  N  G

               ---------------------------------------------------

 

FARKYE, JA:-  This ruling is in respect of motion on Notice for extension of time limited for appeal.

          From the affidavit in support of the motion for extension of time within which to appeal the judgment of the suit which was commenced in 1996 was delivered on the 17th May 2004.  Exhibit TT8 refers.

           In the supplementary affidavit in support of the motion for leave for extension of time within which to appeal paragraph 3 stated that on the 5h of July 2005 the Defendant/Applicants had its motion for extension of time within which to appeal dismissed by the High Court in Accra.

          The Defendants/Applicants have repeated the application at the Court of Appeal. The motion for extension of time was refused because the application was completely out of time.  The judgment was given on the 17th May 2004 and the application for extension of time within which to appeal made on the 17th July 2005.

           The date of a judgment is the date on which it was delivered in open court; in the present suit on the 17th May 2004.  Entry of judgment is not the date of judgment.  In the case of Annous Vrs. Appoh 1980  GLR it was held that the date of judgment was the date the judgment was read in open court and not the date reasons were given.

         The Court of Appeal Rules 1997 C.I. 19 rule 9 sub-rule 4 states as follows:-

        “No Application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.”

         The date of the judgment was 17/5/2004.  The time prescribed by the rules of the Court of Appeal within which to appeal is six months.

         After six months from the date of the judgment the court cannot entertain any application for extension of time within which to appeal.  Rule 9 sub-rule (4) uses the word “shall” which meant mandatory.  The court is not permitted to exercise any discretion to grant extension of time within which to appeal.

         Six months from 17/5/2004 is 17/11/04.  This is the permissible period within which to apply for appeal to be brought.

          It was on the 5th of July 2005 that the Defendants/Applicants applied to the High Court for extension of time within which to appeal and the application was refused.

          In our candid opinion the motion repeated at this court is not meritorous because the motion was brought well after six months after the judgment was given on 17th May 2004.

          Accordingly the motion is dismissed.

          Costs of ¢2,000,000.00 for the Plaintiff/Respondent.

 

                           

                                                                                  [sgd.]     S.T. FARKYE

                                                                                         JUSTICE OF APPEAL

         

 

 

I agree.                                                                     [sgd.]    K. TWENEBOA-KODUA

                                                                                           JUSTICE OF APPEAL

 

 

I also agree.                                                              [sgd.]     S.E. KANYOKE

                                                                                             JUSTICE OF APPEAL

 

MR. GABRIEL PWAMANG FOR THE PLAINTIFF/RESPONDENT.

MR. MOSES FOHAMOANING FOR THE DEFENDANT/APPELLANT.

~eb~