Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL 1 of 2000
CL 17 of 1999

In Re: Inversiones Globales Ltd. v. Hape (CL 1 of 2000, CL 17 of 1999) [2000] TCACA 2 (22 May 2000);

Law report citations
Media neutral citation
[2000] TCACA 2
Coram
Astwood, P
Campbell, JA
Kerr, JA

Case Name:

Inversiones Globales Ltd. v. Hape

IN THE MATTER OF Richard Hape (defendant) AND IN THE MATTER OF The Control of Drugs (Trafficking) Ordinance as Modified by the Control of Drugs (Trafficking) Ordinance (Designated Countries and Territories) Order AND IN THE MATTER OF An Application by Inversiones Globales Limited, Serene Investments Ltd and British Alliance Ltd [the applicants/respondents]

Between

Inversiones Globales Ltd 1st plaintiff/respondent, Serene Investments Ltd 2nd plaintiff/respondent, British Alliance Co Ltd 3rd plaintiff/respondent, and The Attorney General 1st defendant/respondent, The Commissioner of Police 2nd defendant, Scott Boyle 3rd defendant/appellant, Donald Clarke 4th defendant, and Her Majesty the Queen In Right of Canada 5th defendant/appellant

[2000] TCA J. No. 12

Civil Appeal C.L. 01/2000

Original Action C.L. 17/99

Turks & Caicos Court of Appeal

Astwood P., Campbell and Kerr JJ.A.

Heard: February 9 and 10, 2000.

Judgment: May 22, 2000.

(36 paras.)

Counsel:

D.D.G. Reynolds, Q.C., for the 3rd and 5th appellants.

Andrew Mitchell, Q.C., for the 1st defendant/respondent.

Conrad Griffiths for the plaintiffs/respondents.

RULING ON JURISDICTION TO ENTERTAIN APPEAL

The judgment of the Court was delivered by

—d 1      CAMPBELL J.A.:,AiOn November 15, 1999 Ground, C.J. made an order as hereunder: "IT IS ORDERED THAT:

1.             The application for injunctive relief by Inversiones Globales Limited, Serene Investments Ltd and British Alliance Ltd as set out in both paragraphs 2 of the EX PARTE Summonses dated 6th October, 1999 is dismissed.

2.             The Third Defendant should not under any circumstances disclose the contents of any of the seized documents to [certain third parties].

IT IS FURTHER ORDERED AND DECLARED THAT:

3.             As against the Fifth Defendant, Her Majesty the Queen in Right of Canada, the documents seized from Arawak House may only be used for the purposes of the investigation for which they were seized, and they may not be used for any other purpose without first obtaining the appropriate sanction from the Turks and Caicos Islands.

AND IT IS FURTHER ORDERED THAT:

4.             The Application by the Third and Fifth Defendants to vacate the order of the court dated 19th August, 1999 sealing the affidavit filed on behalf of the Applicants/Plaintiffs, sworn 9th August 1999 is dismissed.

5.             The Third and Fifth Defendants shall pay the Attorney General's costs on a standard basis, to be taxed if not agreed.

6.             All of the affidavits filed in these proceedings shall be sealed."

—∂ 2      On the 12th of January, 2000 the Third and Fifth Defendants filed a summons in this Court captioned "APPLICATION FOR LEAVE TO FILE A NOTICE OF APPEAL," however the order sought was not for leave to appeal as such but that:

"1.           The third and fifth Defendants/Appellants be given an extension of time to file the Notice of Appeal herein;

2.             In the event that the extension of time to file the Notice of Appeal is granted as requested above, that the Court of Appeal hear the appeal immediately following the application for an extension of time or at some later date during the sittings in the Turks and Caicos Islands." .

The Notice of Appeal referred to, sought an order:

"1.           Vacating the Order of the learned Chief Justice in its entirety; or in the alternative

2.             Vacating the order of the learned Chief Justice refusing to unseal the affidavit filed in support of an application in Action No. CL 17/99, sworn the 9th August, 1999 and setting aside the Order of the learned Chief Justice dated 19th August, 1999 sealing the aforementioned Affidavit filed in support of an application in Action No. CL 17/99, and

3.             By way of direction, an indication as to the manner in which documents seized from Arawak House can be used for the purpose of a drug trafficking and money laundering investigation and

4.             The costs of the appeal."

And the grounds of appeal stated:

"1.           The learned Chief Justice erred in entertaining the Applicants'/Respondents' application for equitable relief in the face of clear, undisputed evidence that the Applicants/Respondents had not come to court with clean hands.

2.             The learned Chief Justice erred in dismissing the Respondents'/Appellants' application to have the order sealing the affidavit filed in support of an application in Action No. CL 17/99 and sworn on 9th of August vacated, as it is impossible for the Respondents/Appellants to determine the beneficial ownership of the restrained funds, without investigating the contents of the affidavit and disclosing its contents for the purpose of that investigation.

3.             The learned Chief Justice failed to provide clear directions to the Third Defendant having regard to the balance of the reasons in his ruling, making it impossible for the Third Defendant and other investigators to comply with the directions and ruling.

4.             The learned Chief Justice erred in declining to award costs to the Respondents/Appellants in light of the fact that they had not breached the provisions of the sealing order, had not violated the law and had been fully successful in resisting the application for injunctive relief."

—∂ 3      On the 2nd of February, 2000, the summons was taken before Ground, C.J. sitting as a judge of this Court and an order was made granting extension of time to file the aforementioned Notice of Appeal. The power purportedly exercised by the learned Chief Justice was under section 19(1) and section 20 of the Court of Appeal Ordinance CAP 10. These sections so far as relevant read as follows:

"19(1) The powers of the Court under this Ordinance -

(a)           to extend the time within which notice of appeal may be given;

(b)           to assign counsel to an appellant;

(c)           to grant leave for an appellant to be present at any proceedings of the Court;

(d)           to admit an appellant to bail; or

(e)           to make any order for the preservation of any property pending the determination of an appeal, may be exercised by a single Judge in the same manner as they may be exercised by the Court and subject to the same provisions.

20. Without prejudice to the provisions of section 19, when no Judge of the Court is present in the Islands -

(a)           a Judge of the Supreme Court may exercise in the Islands any of the powers of the Court mentioned in subsection (1) of section 19:

Provided that the powers conferred by this paragraph shall not be exercised by a Judge of the Supreme Court in any case in which an application on the same facts and for the same purpose by the same applicant has been refused by another Judge of the Supreme Court or of the Court of Appeal."

Powers of the Court referred to in paragraphs (b)(c)(d) and (e) of section 19(1) above are expressly given in sections 8(1), 9(1), 14(1) and 16(1) of the Ordinance respectively. No power is expressly given in respect of (a).

—∂ 4      It is of interest to note that section 8(1) of the Ordinance is in substance a reproduction of section 15(1) of the Court of Appeal Act of The Bahamas which predated the Ordinance by some three years. Similarly, sections 9(1) and 14(1) of the Ordinance are in substance reproductions of sections 16(1) and 25(1) of the aforesaid Court of Appeal Act with this fundamental difference that whereas in section 25(1) of the Court of Appeal Act of the Bahamas, the power to admit an appellant to bail is vested exclusively in the Court, in the Ordinance the Chief Justice has concurrent power to admit to bail. Thus, in our view, the purported delegation of the Court's power derivatively to a judge of the Supreme Court under section 20 appears unnecessary since the Chief Justice is already given the power under section 14(1) of the Ordinance.

—∂ 5      In regard to section 19(1)(a) of the Ordinance, this appears to be section 26(1)(a) of the Court of

Appeal Act of The Bahamas shorn in the Ordinance of its applicability to "appellate criminal jurisdiction." The removal in the Ordinance of the words "appellate criminal jurisdiction" no doubt stems from the fact that the legislature was mindful of the fact that the power to extend time in criminal appeals from the Supreme Court had from 1968 been conferred exclusively by section 10(1) of Ordinance No. 10 of 1967 on the Chief Justice. The omission of the words "appellate criminal jurisdiction" creates an anomaly in that whereas section 19(1)(b)(c)(d) refer to powers exercisable in criminal matters when an appeal is pending, section 19(1)(a) refers to power of the court when no notice of appeal has yet been filed and in circumstances where no power is given in the Ordinance to extend time for appealing whether in criminal or civil matters.

—∂ 6      Section 26(1) of the Court of Appeal Act of The Bahamas reads thus:

"26(1) The powers of the Court in its appellate criminal jurisdiction under Part IV of this Act -

(a)           to extend the time within which notice of appeal or of application for leave to appeal may be given;

(b)           to assign counsel to an appellant;

(c)           to grant leave for an appellant to be present at any proceedings of the court; and

(d)           to admit an appellant to bail, may be exercised by a single justice in the same manner as they may be exercised by the Court and subject to the same provisions:

Provided that if a single Justice refuses an application under paragraph (a) of this subsection the appellant shall be entitled to have the application determined by the Court."

—∂ 7      Following on the order of the Honourable Chief Justice on 2nd February, 2000 the proposed appeal was listed for hearing and it came before us on 9th February 2000. Notwithstanding that no objection was raised by the respondents to our jurisdiction to entertain the appeal, we invited submissions from counsel present on whether, having regard to the provisions of section 15(1) of the Ordinance the proposed appeal was properly constituted. The reason for our invitation to counsel was that we recalled an earlier decision of this court relating to non-compliance with section 15(1) then section 14(1) of the Ordinance. That matter intituled Appeal No. CL - AP 11/95 Jeanette Caribbean Company Ltd Defendant/Applicant v. Paradise Development Corporation Ltd Plaintiff/Respondent came before us by way of Notice of Motion for extension of time within which to appeal. The facts as stated in the Ruling delivered on 5th September 1995 were that Kipling Douglas, C.J. gave judgment on 2nd June 1994 which he modified and signed on 17th June 1994. On 13th April, 1995 more than a year after, the applicant filed a Notice of Appeal in respect of the judgment dated 2nd June 1994 which counsel asserted was only perfected on 16th March, 1995 and as such he was in time. He did not however serve the copy of this Notice of Appeal on the respondent until 19th April, 1995.

—∂ 8      The Registrar of the Court notified the applicant on 17th May 1995 that the Notice of Appeal was filed out of time and did not therefore constitute a valid notice. The applicant challenged the correctness of the Registrar's decision and a battle royal ensued between the applicant and the Registrar lasting some two months. Finding the Registrar unmoved, the applicant filed its motion for extension of time on 12th July, 1995.

—∂ 9 Before us, the main thrust of the submission on behalf of the applicant was that it really did not need extension of time because its notice was filed within the prescribed period of 28 days stated in section 14(1) of the Court of Appeal Ordinance. This was so, counsel submitted, because the time for appealing only commenced to run from the date when the judgment was "signed entered or otherwise perfected" which was on 16th March, 1995. To the contrary counsel for the respondent relied on Section 14(1) which he submitted did not require a judgment to "be signed entered or otherwise perfected" as a precondition for the institution of an appeal. He submitted, and we agreed with him, that the time for appealing commenced to run from the date of delivery of a signed judgment.

—∂ 10    We dismissed the motion for extension of time which was devoid of satisfactory reasons for its inordinate delay.

—∂ 11    We concluded our ruling on the motion in these words:

"There is no legitimate basis on which we can properly exercise our discretion to extend time for the applicant to appeal."

This ruling proceeded on the basis that what was in issue was really the date from which time for appealing began to run. This the Registrar construed adversely to the applicant. We entertained the matter as a motion for review of the Registrar's refusal to accept the Notice of Appeal as there is no provision as such, for appealing such refusal.

—∂ 12    As stated earlier, the thrust of the submissions was that the Registrar was wrong with little or no submission on the merit for securing an extension of time.

—∂ 13    The situation which presents itself now is that the application for extension of time which undoubtedly was meritorious, was not brought before the learned Chief Justice in exercise of his Supreme Court jurisdiction, but rather in exercise of original powers said to be conferred on this court by CAP 10. Thus it became necessary for the court, regrettably as it is, to invite submissions from counsel in sourcing the power in us which was derivatively exercised by the learned Chief Justice.

—∂ 14    Mr. Mitchell, Q.C., for the Attorney-General who appeared as amicus curiae in the court below and as 1st Defendant/Respondent before us, placed before us a full written submission on the issue of jurisdiction which counsel for the third and fifth Defendants/Appellants adopted.

—∂ 15    Mr. Mitchell introduced his submission thus:

"2.           The Court is concerned that there appears to be no jurisdiction for the Court of Appeal to extend time within which the appeal can be brought. In the absence of such a power being vested in the Court of Appeal, the Chief Justice in exercising his powers as a single judge of the Court of Appeal could not have extended time in the way that he did at a hearing on the 2nd February, 2000.

3.             The Court permitted the parties time to consider the implications of the issue raised.

4.             The Attorney-General considers that the issue raised by the Court is one of significance. The effect of the court's preliminary view is that in any civil proceedings the parties are restricted to the issuing of the Notice of Appeal against a decision of the Supreme Court to the period of 28 days as set out in the Section 15 Court of Appeal Ordinance and would otherwise be barred from bringing an appeal. This cannot be in the public interest.

5.             The submission of the Attorney General is that to read into the statute a limitation on the ability to bring an appeal only within the time limit laid down in the Ordinance would be to ignore the whole meaning and effect of the legislative scheme and to ignore certain fundamental tenets of legislative interpretation. (emphasis added)

6.             The Ordinance whilst silent on the issue of extension of time within which to issue a notice of appeal is not silent on the issue of extension of time as a feature of the practice and procedure of the Court of Appeal.

7.             The Court of Appeal is mandated to look, in the absence of a special provision in relation to civil appeals within the Ordinance or the rules, to the law and practice for the time being observed in England by the Court of Appeal."

—∂ 16    Mr. Mitchell then made submissions on "The development of the Court of Appeal Powers" by reference to Section 53 of the Constitution which confers power not just by reference to the Constitution "but by reference to any other law." He submitted that this must mean "any law including the common law and not just other written law." We are not in disagreement with these submissions but we would have welcomed submission on the impact, if any, of the common law in resolving the specific issue before us.

—∂ 17    He then referred us to the Ordinance which was first enacted in 1967; he referred to its object which he said was "to provide for the exercise of the jurisdiction of the Court of Appeal established by the Constitution, and for matters incidental thereto or connected therewith."

—∂ 18    We have earlier referred to the fact that Section 19(1) of the Ordinance substantially reproduces Section 26(1) of the Court of Appeal Act of The Bahamas. We mentioned this because CAP 10 in its origin as No. 10 of 1967 (then CAP 2) did not establish an independent and indigenous Court of Appeal in and for the Turks and Caicos Islands (hereafter the Islands). Rather it provided for the jurisdiction in relation to the Islands to be exercisable by the Court of Appeal for the Bahama Islands (The Bahamas). Both the long title of No. 10 of 1967 and the definition of "Court" make this abundantly clear, as recited hereunder.

"AN ORDINANCE TO PROVIDE FOR THE JURISDICTION IN RELATION TO THE TURKS AND CAICOS ISLANDS OF THE COURT OF APPEAL FOR THE BAHAMA ISLANDS AND FOR MATTERS INCIDENTAL THERETO OR CONNECTED

THEREWITH;" and "COURT" - means the Court of Appeal for the Bahama Islands exercising jurisdiction conferred in accordance with the provisions of the Turks and Caicos Islands (Constitution) Order 1965."

—∂ 19    The Court of Appeal Act for The Bahamas (CAP 40) and its "rules of court" made under section 7 of the Act commenced on 7th January, 1965 and 29th May, 1965 respectively. They thus antedated by some three years the Court of Appeal Ordinance which commenced on 27th July 1968. It is therefore reasonable to infer that the legislature of the Islands at the time it legislated No. 10 of 1967 was conversant with the provisions of the Court of Appeal Act of The Bahamas, the rules of Court made thereunder and with the legislative scheme adopted of providing for the times for appealing in civil matters to be prescribed in rules of court which legislative scheme is consonant with the United Kingdom Judicature Act of 1925.

—∂ 20    Notwithstanding this inferred knowledge the legislature enacted section 14 (now section 15) of the Ordinance prescribing the time for appealing decisions in civil matters from the Supreme Court which was a fundamental departure from the long established legislative scheme of leaving the prescribing of time to be effected by a rule making authority usually established in the Court of Appeal Act or Ordinance. In our view the fundamental change manifested a deliberate policy decision which is also reflected by the conferring on the Chief Justice of the Supreme Court and not on the "Court" the power to extend time in criminal appeals.

—∂ 21    By Ordinance No. 1 of 1974 a Court of Appeal was established as an independent indigenous institution for the Islands albeit still sitting in The Bahamas and making use of the services of the President and Judges of the Court of Appeal for The Bahamas. The transition to an independent indigenous Court of Appeal was effected by the simple devise of amending the definition of "Court" to read thus:

"Court means the Court of Appeal for the Turks and Caicos Islands constituted in accordance with the provisions of the Turks and Caicos Islands constitution 1973 or the constitution of the Islands for the time being in force."

The provisions of Ordinance No. 10 of 1967 remained the same save for two amendments namely, one in 1978 which created additional provisions now appearing as section 20 of CAP 10, and the other in 1998 which widened the existing power to extend time for criminal appeals or for leave to appeal by conferring such power on any judge by an amendment substituting "a judge" for "the judge" which latter expression by section 5(2) of the Supreme Court Ordinance meant the Chief Justice exclusively. Rules of Court were made in 1975, and published as commencing on 17 March 1975 by Gazette Notice No. 51 of 1975. These rules merely adopted mutatis mutandis "The Court of Appeal Rules of the Bahama Islands." (emphasis added)

—∂ 22    Mr. Mitchell in paragraph 22 of his submission so far as is relevant said:

"The purpose of the Ordinance which underlies the Court of Appeal's process is to hear and dispose of appeals in accordance with the law. It cannot be the intention of the legislature to have only given the Court of Appeal the power to determine an appeal provided that notice is given within 28 days.

The legislature by leaving to the President to set out the practice and procedure of the court was intending to insure that the procedural niceties of such matters as time limits would be left to the Court to determine."

In the remaining paragraphs of his submission, Mr. Mitchell referred to the Rules of Court relating to practice and procedure made by the President as authorised by Section 21 of the Ordinance and submitted that practice and procedure would encompass the question of extending time in which to file and serve notice of appeal as provided in Rule 8 of the aforesaid Rules of Court.

—∂ 23    We entirely agree with Mr. Mitchell that it was not the intention of the legislature to limit the Court of Appeal's jurisdiction only to an appeal notice of which is filed within 28 days. If such was the intention, Section 5(1) of the Ordinance to which we will return would be meaningless. The issue however is not whether the Court of Appeal can hear and determine an appeal grounded on a notice of appeal filed after the expiration of 28 days, but rather whether the court itself has been given the power to extend time in exercise of an original jurisdiction.

—∂ 24 The consequence of prescribing the time for appealing in Section 15(1) of the Ordinance is a matter of statutory interpretation. It follows from our recognizing, accepting and applying the relevant "fundamental tenets of legislative interpretation" instead of ignoring the same as feared by counsel. The first of such is that stated in "Craies on Statute Law" 7th Edition at p.266 namely that:

"When a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with."

—∂ 25    The above principle was derived from Edwards v. Roberts [1891] 1 Q.B. 302 in which an appellant had failed to comply with the time frame of three days prescribed under Section 2 of the Summary Jurisdiction Act 1857 within which he was to apply in writing to a justice to state and sign a case setting out the facts. It was held in consequence that the court had no Jurisdiction to hear the appeal. The Court of Appeal of the Islands is a court of limited authority and of statutory origin. Thus, but for the presence of a provision in the Ordinance providing for extension of time, Section 15 would be mandatory. (emphasis added)

—∂ 26    The second fundamental rule of interpretation is that statutory rules, however wide are the powers conferred to make them by the enabling Act or Ordinance, cannot repeal or contradict a statutory provision in the enabling Act or Ordinance which is plain and unambiguous in its meaning unless a provision exists in the enabling act to do so. Craies (supra) at page 320 informs us that the Rules of the Supreme Court in the United Kingdom made under Section 99 of the Supreme Court of Judicature (Consolidation) Act 1925, though taking effect as part of the Judicature Act cannot repeal or contradict Judicature Act provisions. This is what the learned author says:

"The Rules of the Supreme Court take effect as part of the Judicature Act. They have the effect of an Act of Parliament, but must be construed in the spirit of the Judicature Act. They are statutory instruments since they come within the Rules Publication Act definition of 'statutory rules' and are made under a pre-1948 Act.

They cannot repeal or contradict Judicature Act provisions but apparently may repeal any prior Act falling within the scope of the rule-making authority created by the Judicature Act, it being presumed with reference to these rules that Parliament delegates its functions as to judicial procedure to a more competent authority.

Like rules made under other Acts, if they have a meaning and effect inconsistent with the Act authorising them, they are pro tanto, ultra vires. 'If a rule' said Hannen J in Irving v Askew [(1870) L.R. 5 Q.B. 208, 211] 'were really repugnant to the provisions of the Act, I should think that the rule though made under the powers of the Act would not override its enactments." (emphasis added)

—∂ 27    Adopting the above statement of principle, Rule 8, Rule 13 and Rule 23 of the Court of Appeal rules of The Bahamas, adopted as Rules of Court of the Islands are clearly repugnant to Section 15 of the Ordinance. Rule 8 seeks to confer power in the court to extend time within which to appeal, while Rule 23 seeks to circumscribe powers conferred albeit impliedly to extend time given by section 5(a) but there is no provision in the Ordinance conferring power on the President to alter by Rules the provisions of sections 5(a) and 15 of the Ordinance.

—∂ 28    In so far as time for appealing is encompassed in "practice and procedure" it has been specifically dealt with by a statutory provision namely section 15 of the Ordinance and can only be varied expressly or impliedly by some other statutory provision or by a proviso to section 15.

—∂ 29    It must be assumed that the legislature has expressed all that it wished to express relative to time in Section 15 of the Ordinance and that if it desired to confer power in the Court to extend time it would have included a proviso to that effect. It may well be that the legislature in 1968 by intentionally prescribing a much shorter time for appealing than existed in The Bahamas desired expeditious determination of appeals from the Islands and did not wish to burden that court with motions for extension of time but only with substantive appeals.

—∂ 30    The Rules of court mentioned above are of no assistance as aids to the interpretation of section 15(1) or for that matter section 5(a). Further, Rule 8 apart from being repugnant to Section 15 would in any case be irrelevant by virtue of the express words used which would only apply to times prescribed by the Rules (not by the Ordinance) for doing of anything to which the Rules apply. Rule 8 states thus:

"... the court may enlarge the time prescribed by these Rules for the doing of anything to which these Rules apply." (emphasis added)

—∂ 31    Regretfully we conclude that there was no properly constituted appeal before us as no extension of time to file the notice of appeal was lawfully ordered.

—∂ 32    We are however of the view that if the summons to extend time had been brought before the learned Chief Justice in exercise of his Supreme Court jurisdiction conferred by Section 49 of the Constitution, the issue raised may not have arisen. Section 49(1) of the Constitution reads thus:

"49(1) There shall be a Supreme Court for the Turks and Caicos Islands which shall have such jurisdiction and powers as may be conferred upon it by this constitution and any other law." (emphasis added)

—∂ 33    The Supreme Court Ordinance constitutes "any other law" and by section 3(1) thereof it is provided that "The court shall be a Superior Court of Record" which, in addition to any jurisdiction previously exercised by it or conferred upon it by this Ordinance or any other law shall have within the Islands the jurisdiction vested in... the High Court of Justice." Any other law referred to in Section 3(1) of the Ordinance would include section 5(a) of the Court of Appeal Ordinance which by necessary implication confers on the Supreme Court the jurisdiction to make an order allowing an extension of time for appealing from its judgment or order, from which no appeal shall lie. In exercising this jurisdiction to extend time the Supreme Court is not in our view constrained by Rule 23 of the Court of Appeal Rules of the Bahama Islands adopted by section 21 of the Ordinance for the reason that it cannot fetter the statutory provision of section 5(a) of the Ordinance which is not limited as to the time within which an application for extension may be brought. Section 5(a) ought to be interpreted as not circumscribed by any time frame within which an application for extension of time may be brought. Section 5(a) of the Ordinance reproduces ipsissima verba section 31(1)(b) of the Judicature Act 1925 which latter section but for Order 58 rule 14 Supreme Court Rules, (Supreme Court Practice 1962) would have been unfettered.

—∂ 34    In order to produce consistency between this power to extend time impliedly given by section 31(1)(b) of the Judicature Act 1925 and the power (construed as exclusively conferred on the Court of Appeal or a judge thereof in relation to appeals) by Order 64 rule 7 to enlarge or abridge time thereof, Order 58 rule 14 above (which as we have previously stated like all the other Orders has the force of an Act of Parliament) provided thus:

"14. Without prejudice to the power of the Court of Appeal under Rule 7 of Order LXIV to enlarge the time prescribed by any provision of this Order, the period for serving notice of appeal ... may be extended by the court below upon application made before the expiration of that period."

Order 64 rule 7 provides thus:

"7. A court or Judge shall have power to enlarge or abridge the time appointed by these Rules, or fixed by an order enlarging time for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

—∂ 35    There is no limitation prescribing the time frame within which the implied powers in section 5(a) may be exercised to extend time in the exercise by the Supreme Court of its jurisdiction as is the case in the U.K. because as we have earlier concluded Rule 23 of our Rules of Court is irrelevant and inapplicable. No repugnancy or inconsistency arises between Section 5(a) and Section 15 which must be read subject to section 5(a) which statutorily provides albeit impliedly for extension of time.

—∂ 36 In conclusion, while we deeply regret the fact that we have no jurisdiction to entertain the proposed appeal for the reason earlier stated, it is in our view open to the prospective appellants if they so desire to have their application considered under Section 5(a) of the Ordinance.

ASTWOOD P.

CAMPBELL J.A.

KERR J.A.

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