quote:

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Originally posted by kobo
"Avoid procrastination and be prepared!"

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• Incompetency


• Dereliction of Duties


• Gross Negligence


• Complacency


• Unconcerned

• "The appellate judge read section 271 of the Criminal Procedure Code, which provides that : “An appeal shall lie from a decision of the subordinate court to the High court. Section 274 of the Criminal Procedure Code, which provides that an appeal shall be entered within 30 days of the date of the order or sentence appealed against”.
  
  The appellate judge explained that the said section is the heart of the very issue before the court and that the language of the said section is an appeal and in simple language the word ‘an’ connotes ‘any’ or ‘every’ and also means ‘all’. He further explained that the said provision applies to all appeals, whether interlocutory of final appeal, adding that when the language of a statute is clear and unambiguous, they should be given their simple, literal and clear grammatical meanings see: Edward Graham vs Lucy Mensah(2002-2008)1GLR22.
  
  The judge affirmed that the judgment of the Magistrates’ Court that convicted the appellant was delivered on 1st April,2010, the substantive appeal against the judgment of the Magistrates’ Court was filed on 12th April 2010; i.e.within 12 days thereof and so within the 30-day timeline specified in section 274 of the CPC.
  
  The Appellate Court president further revealed that the ruling of 23rd November,2009 refused the application to refer to the Supreme Court the constitutional issues formulated by the appellant counsel for determination by the Supreme Court under its interpretative jurisdiction as provided by section 127 of the Constitution.
  
  “By virtue of section 274 of the CPC, an appeal as in grounds 9,10 and 11 against that ruling must be filed within 30 days thereof, being an interlocutory decision. But grounds 9,10 and 11 are contained in the notice and grounds of Appeal filed on 12th April,2010, i.e. 4 months and 19 days after the ruling was delivered, so is filed out of time”.
  
  Justice Fagbenle intimated that the ruling of 14th December,2009 which refused to grant stay of proceedings pending an intended appeal to the High court was also an interlocutory decision, thus if an appeal is desired against same, then it must be filed within 30 days as specified by section 274 of the CPC, the grounds of appeal on 12th April, 2010 created a gap of 3 months and 21 days between it and the complaints associated therewith, so it was also filed out of time.
  
  The High Court judge said that the ruling of 3rd March,2010 which overruled the no-case submission made on behalf of the appellant, had between it and the notice and grounds of appeal filed on 12th April,2010,a gap of one month and 10 days and so it was filed out of time. The appellate judge disclosed that generally an appeal will lie against a decision or order or verdict cum judgment of a court and not just any sentence or statement of that court.
  
  “ Thus the appellant can only file complaints in the nature of grounds of appeal against the decisions of the Magistrate court to the High Court , to sit in its appellate jurisdiction over the trial and conviction of the appellant at the Magistrates court pursuant to sections 271 to 282 of the Criminal Procedure Code. All the decisions made in the course of the trial proceedings are thus caught by the provisions of sections 271 and 274 of the CPC”.
  
  “Any appeal to the High Court against an interlocutory ruling or a final judgment of the subordinate court, he went on, must be filed within 30 days of the rendition of the decision complained against, otherwise the High court will lack the requisite jurisdiction to entertain such appeal filed out of time”.
  
  The appellate judge pointed out that by virtue of section 271 of the CPC, an appeal shall not lie from a decision of the subordinate court to the High court. “That such appeal may be on matter of fact or of law”. In the present case, the judge further went on, the record of proceedings at page 173, indicated that the appellant indeed initially so appealed but later withdrew the appeal against those interlocutory decisions and was accordingly struck out.
  
  According to the judge, the appellant failed to seek for the much needed leave or extension of time necessary to give life to the appeals or grounds of appeal that were caught by section 274 of the CPC, adding that the appeal relating to those grounds having been filed out of time in violation of section 274 of the CPC, the court below was therefore right to have stuck out the offending grounds 1,2,3,9,10 and 11 of appeal filed out of time which invariably robbed it of jurisdiction to entertain those grounds.
  
  He said having observed in the main appeal that the notice of appeal to the court of Appeal was itself filed out of time, they thought it necessary to ask the parties to address us on the competence of the appeal to this court; for having been filed out of time and thus in contravention of section 285 of the CPC and section 9(1) of the court of Appeal Act, both of which stipulated that an appeal to the court of Appeal must be filed within ten days of the decision appealed against”.
  
  The president of the appellate court further disclosed that both parties addressed the court and that the appellant urged the court to take out non-working days and 15th August,2010 a public holiday from the dates specified in Section 285 by virtue of order 6 rule 5 of schedule 1 of the court Act and the calculation will only leave one day unaccounted for, adding that the appellant orally applied for extension of time to cover that remaining one day to save the appeal.
  
  He also disclosed that the DPP responded that if the appeal was filed out of time, it is irredeemable, saying that oral application with no compelling reason(s), cannot grant an extension of time to redeem an appeal filed out of time since year 2000 (4 years ago) and that the calculations done by the appellant counsel is not supported by section 32 of the Interpretation Act.
  
  Justice Fagbenle revealed that after reviewing the submissions of both parties, it becomes patently clear that even when the excluded days allowed by section 32 of the Interpretation Act are excluded, the appeal is still out of time and so remain incompetent before the Court of Appeal. Justice Fagbenle pointed out that the court of appeal’s jurisdiction having been thus clearly eroded; the court accordingly refused the oral application to extend time for the appellant.
  
  The appellate judge revealed that the court raised the issue of incompetence of the whole appeal to enable it exercise its jurisdiction properly, but not as a ruse to aid either of the parties to the appeal, saying that by virtue of order 6 rule 5 schedule 1 of the Court’s Act, section 32 and section2 of the interpretation Act; as well as the additional provisions of section 285 of the CPC and section 9(1) of the Gambia Court of Appeal Act. He said the clear and unambiguous contrary intention expressed by statute governing the appeal to the Gambia Court of Appeal is that the appeal before the court must be filed within ten days to render it competent but the appeal before the court was filed out of time so stipulated by the relevant statutes.
  
  The judge noted that the appeal to this court is governed and only validated by sections 284 to 285 of the CPC, pointing out that a careful perusal of the records show that the judgment of the court below now on appealed before the present court was delivered on the 5th of August 2010. He further stated that the notice and grounds of appeal at pages 223 to 225 did not indicate the date on which the judgment appealed against was delivered.
  
  “We took the pain to examine the records and indeed found out that even though the notice of appeal was dated 12th August,2010, it was actually filed on the 17th August,2010 - that is more than ten days limitation period stipulated by section 285 of the CPC. That in simple language, and interpreted in its ordinary meaning as enjoined by this court in EDWARD GRAHAM VS LUCY MENSAH(2002-2008)1GLR 22 means that the appeal was filed out of time and so rendered the entire appeal statute barred and incompetent before this court”.
  
  He maintained that he has taken the pain of looking at the court of Appeal rules and found that the ten days prescribed above is the same as provided in section 9(1) thereof, thus the court is unable to comment on the implications of grounds 12 and 13 that were struck out ‘suo-moto’ by the court below even since the foundation of those two grounds similarly arose from a notice of appeal that was filed out of time and so incompetent before us”.
  
  Justice Fagbenle intimated that when a statute prescribes the time for doing a thing, anything done outside that prescribed time is invalid unless time has been properly extended by a competent authority to do same.
  
  He further intimated that the failure to act within the time specified, robs the court of the required jurisdictional competence to deal with the substance of such matter, saying that nothing else can be built on that faulty foundation as the ‘latin maxim is ex nihilo nihil fit’.
  
  The Court of Appeal president observed that the said appeal having been filed out of time is thus statutes barred and the court of Appeal is effectively robbed or the required jurisdiction to entertain same.
  
  The Appeal Court president then affirmed that it is incompetent and pursuant to section 6(1) of the Gambia Court of Appeal rules, it is hereby dismissed in its entirety and the conviction remains. In supportingthe judgment, Justice Naa Sallah-Wadda and Justice Edrissa Fafa M’bai both agreed that the said appeal be dismissed in its entirety,saying it is incompetent and has robbed the said court of the jurisdiction to determine it on the merits."