A: Introduction

The Supreme Court is the highest court in Ghana. The law gives the Supreme Court authority to handle different cases. The authority to handle cases is what is legally referred to as “jurisdiction.” The Supreme Court exercises several jurisdiction over a wide range of subjects. These are classified into original jurisdiction, reference jurisdiction, appellate jurisdiction, review jurisdiction, supervisory jurisdiction and jurisdiction over Presidential election challenge, production of official documents and functions regarding the President’s prerogative of mercy.[1]

Time is one important factor when it comes to invoking the Supreme Court’s jurisdiction to hear any case that falls with its ambit. The Supreme Court Rules set down various time limits within which applications and processes must be filed to begin a case. But in situations where one is not able to comply with the stated time limit, one would not suffer such misfortune to be without a remedy. The rules of court make it possible for such a party who has delayed in filing a case to apply to the Supreme Court for the time to be extended. In that event, the Supreme Court would be able to give the party more time to file the requisite processes.

This article discusses one aspect of the supervisory jurisdiction of the Supreme Court regarding time limits. The article focuses on the time within which a party who misses the original ninety (90) days’ time limit for filing an application to invoke the Supreme Court’s supervisory jurisdiction could apply for extension of time. The question is whether the application for extension of time must be made before or after the ninety (90) days fixed in the Supreme Court Rules have expired.

This article contends that the Supreme Court’s posture of yielding to the position stated in Rule 66 of the Supreme Court Rules – that the application for extension of time must be brought before the 90 days expire - is problematic. Such position slams the door of justice in the face of aggrieved citizens who need redress from the Supreme Court. Much worse, it defeats the very essence of justice. If justice emanates from the people, but the people are denied access to it, then justice remains nothing but a utopian fantasy. Such could not have been the intendment of the framers of the Constitution, 1992; a Constitution that is anchored on the rule of law, and not ‘the rule of rules.’

B: Supervisory jurisdiction of the Supreme Court

Under the Supreme Court Rules,[2] a person who intends to apply to the Supreme Court for any supervisory order (such as certiorari or prohibition) must be guided by time. The application must be filed within 90 days of the date when the grounds for the application first arose. That is to say, the person who invokes the Court’s supervisory jurisdiction must apply within 90 days from the date the order or decision was given, or the action which is the basis of the application took place. But where the person is unable to file the application on time, the person would be able to apply to the Supreme Court to extend the time. Of course, the person must give sound reasons why the application could not be filed on time.

Rule 66 of C.I. 16 (the Supreme Court Rules)[3]  states that an application for extension of the 90 days’ period must not be brought after the 90 days (stated under Rule 62 for invoking the supervisory jurisdiction of the Supreme Court) has expired. This means that the application for extension must be filed by the time the 90 days is still open and has not expired. Therein lies the problem with Rule 66 of C.I. 16. Normally, an application for extension of time is useful when one is already out of time. Hardly would one bring an application for extension of time when one is not yet out of time. Thus, an application for extension of time becomes necessary only after the stipulated time has elapsed. Before the time elapses, there would be no need for the extension; the person would just proceed to file the substantive application.

It is, therefore, unfortunate that this is the state of the procedural law that has been thrust upon us by the Rules of Court Committee. Until the Committee introduces an amendment to correct this anomalous piece of drafting, that is the position of the law.

C: Can the Supreme Court save the day?

In the face of the palpably indefensible provision in Rule 66 of the Supreme Court Rules that allows for extension of time (to invoke the Supreme Court’s supervisory jurisdiction) only when the 90 days period is still ‘live,’ one would have expected the Supreme Court to step in and set things right. How would the Supreme Court do so? After all, the Supreme Court interprets the law; it does not make the law, some may ask? The answer is simple: By purposively interpreting and applying Rule 66 to serve the purpose for which it was enacted (excuse the pun). That is to say, to apply the rule to admit of applications for extension of time that are brought after the 90 days have expired. Of course, tardy applications for extension would not be countenanced under any circumstances.

The reality is that the Supreme Court is very much aware of the injustice Rule 66 is perpetrating on our citizens and the legal fraternity. Unfortunately, the august Court merely wrings its hands in perplexity whenever it is confronted with the stark injustice inherent in Rule 66. The Court only registers its frustration and goes ahead to apply the obnoxious rule anyway, while exhorting the Rules of Court Committee to make the necessary amendment. The Rules of Court Committee?

The last time anyone heard of the Rules of Court Committee doing some serious work was in 2020 when it made amendments in the Supreme Court, Court of Appeal and High Court Rules by introducing C.I. 131, C.I. 132 and C.I. 133 respectively. The result of that effort culminated in the Supreme Court decision in Republic v High Court (Commercial Division), Accra; ex parte Ecobank Ghana Ltd (Origin 8 Limited & Another (Interested Parties).[4] After the poor effort at legislation in C.I. 132, the Committee went into quietude. Even in later times, the Committee has been circumvented and side-lined while ad-hoc, unconstitutional groupings have been put together to do what essentially is the Committee’s job.[5] So, in all seriousness, we cannot hang our ‘justicia’ fate on the head of the Rules of Court Committee. The Supreme Court is our only hope. Or is it?

Now, talking about the Supreme Court feeling perplexed but perpetuating the injustice of Rule 66, a few examples will suffice here. In Republic v High Court, Ho; ex parte Awuku Dopley (Sara Aku Wadza Interested Party),[6] the single Justice exercising the jurisdiction of the Supreme Court poured his exasperation concerning Rule 66 in the following words:

“The rule appears not to afford real relief to a party out of time to invoke the supervisory jurisdiction of the Court as of right, but it is what it is and until it is amended, there is nothing I can do, particularly as I am exercising the single Justice jurisdiction of the Court under Article 134 of the Constitution.” 

Again, in Republic v High Court, Tarkwa; ex parte Abishek Ashwinkumar Soneji (Richardson Nyanful Interested Party),[7] the single Justice who heard the application for extension of time delivered himself in these terms:

“The effect of Rule 66 above is clear. It means that an applicant who desires that this Court extends time to enable him apply to invoke the supervisory jurisdiction of this Court shall file his application for leave for extension of time within the ninety days or the three months given under Rule 62 for the filing of the application to invoke this Court’s supervisory jurisdiction. Put differently, an application for leave for extension of time to apply to invoke the Supervisory jurisdiction of the Supreme Court cannot be filed or made after the ninety days or the three months within which the substantive application to invoke the supervisory jurisdiction could have been filed. The effect of Rule 66 on the instant application is that the application for leave for extension of time is itself out of time. It is, thus, incompetent and cannot be entertained by this Court.”

 Thus, the applicant was denied the relief he sought by way of leave for extension of time.

The third instance where Rule 66 has been applied in its current form to deny relief to an applicant who failed to apply for leave for extension of time within 90 days occurred in the recent case of Republic v High Court (Criminal Division) Accra; ex parte Amina Tahiru (Umar Mohammed Interested Party).[8] There, it was held that the orders the applicant sought to quash were made on May 28, 2024. That was when the grounds for the application first arose. Therefore, the applicant should have filed the application for extension of time within 90 days after that date. Since the application was brought on January 30, 2025, (five months after the grounds first arose), the application was           filed out of time. So, the application for leave for extension of time was dismissed. Once again, an applicant was thrown out because he did not file for leave for extension of time before the 90 days period expired.

D: The Way Forward

It is intriguing to observe that since Pwamang, JSC registered the unfair effect of Rule 66 in Ex parte Awuku Dopley^[9] in 2018 and recommended an amendment, nothing has been done in that regard. In 2020, when the Rules of Court Committee found it necessary to amend the Supreme Court Rules through C.I. 131, it failed to tackle Rule 66. The Supreme Court itself has failed to proffer a solution, beyond stating how unfair and impracticable Rule 66 has turned out to be. It is fair to wager that the Supreme Court duly constituted by a minimum of five Justices would be in a position to cure the devil in Rule 66. Curiously, however, applications for extension of time filed under Rule 66 have routinely been assigned to single Justices, who exercise very limited jurisdiction. Their decisions are subject to review heard by three Justices of the Supreme Court.[10]

It is for this reason that one wonders why the Supreme Court has chosen to assign applications on such an important rule as Rule 66 to single Justices. It appears the single Justice jurisdiction is being used as a clever avenue for the Supreme Court to avoid tackling the problem head-on. In the circumstances, it is suggested that applications brought under Rule 66 for leave for extension of time when the 90 days stipulated period has expired must be heard by the Supreme Court duly constituted by, at least, five Justices. That way, the Supreme Court would have ample opportunity to give a decision on Rule 66 that will accord with the spirit of granting citizens access to the law courts.

It is further suggested that, where applications made pursuant to Rule 66 are dismissed as it happened in the three examples cited, the applicants are encouraged to file for review. A 3-member review panel may find fertile grounds for granting the application for extension of time even where the 90 days has expired. After all is said and done, a permanent solution to the problem caused by Rule 66 is for the Rules of Court Committee to amend the rule as soon as possible, without delay.

E: Conclusion

Where a party is unable to invoke the supervisory jurisdiction of the Supreme Court due to time constraints, Rule 66 of the Supreme Court Rules empowers such a party to apply for extension of time. But Rule 66 states that the application for leave for extension of time must be filed before the statutory 90 days’ period for invoking the Supreme Court’s supervisory jurisdiction expires. This article discussed the problem inherent in the Supreme Court’s insistence that, ‘before means before.’ Thus, an application for leave for extension of time that is filed after the 90 days expires is incompetent, and it would not be granted by the Court.

It is a well-known Common Law principle that the rules of court and procedure are handmaids of justice, not mistresses. As such, courts must strive to uphold the spirit and objectives of both substantive and procedural laws. Courts must do substantial justice to citizens and not constrict themselves by technicalities and slavish adherence to the text of rules of procedure where doing so visits injustice on citizens; not least, denying them access to the courts.

Ultimately, it is the Rules of Court Committee’s responsibility to amend Rule 66 without further delay. Until then, the Supreme Court is entreated to adopt a more expansive and purposive approach to the application of Rule 66 to ensure that justice is served to citizens in deed.

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FSB Law Consult

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FSB Law Consult

Fsboateng

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