Guiding principles in extension of time to file appeals at the Supreme Court

Brief facts

The instant notice of motion application sought the extension of time within which to file and serve a notice of appeal. The applicant was aggrieved by two related decisions of the Court of Appeal and preferred an application for review. The applicant being dissatisfied with the decision of the Court of Appeal in dismissing its review application filed a notice of appeal dated May 11, 2022, on May 17, 2022, five (5) days late and served the same on the respondent on May 20, 2022.

The applicant claimed that the delay was inadvertent as it was due to the complexity of the issues as well as seeking approval following its internal protocols being a State corporation. Further, that the failure to file and serve the notice of appeal within time was also not intentional but due to counsels failure to advise the court clerk of the urgency of the matter and the deadline of May 12, 2022.

Issues

What were the guiding principles in extension of time and whether a delay of 7 months in filing an application for certification without explanation was reasonable. 

Held

1. The court, under rule 15(2) of the Supreme Court Rules, 2020 had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions. Any person intending to appeal to the court was required by rule 36(1) of the Supreme Court Rules, 2020, to file a notice of appeal within fourteen days from the date of the decision intended to be challenged.
2. The guiding principles in extension of time were; 
   1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
   2. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
   3. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
   4. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
   5. whether there would be any prejudice suffered by the respondents if the extension was granted;
   6. whether the application had been brought without undue delay; and
   7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.
3. The initial delay of five days in filing the notice of appeal was not inordinate and had been sufficiently explained by counsel. Be that as it may, the delay that concerned the court was from service of the notice of appeal on May 20, 2022 to January 18, 2023 when the applicant elected to pursue an appeal before the Supreme Court, and in noting the error filed the instant application; a period of over seven (7) months. Though the Supreme Court Rules, 2020 did not prescribe a timeline within which a party must seek certification, a period of over seven (7) months without explanation could not be termed as reasonable. Rule 38 of the Supreme Court Rules, 2020 required the institution of an appeal within thirty (30) days from either the date of filing the notice of appeal or after the grant of certification, demonstrating the need to move with speed in pursuing an appeal before the court.
4. Extension of time was an equitable remedy, the grant of which involved the exercise of judicial discretion. Equity aided the vigilant and not the indolent. The court had great difficulty reconciling a party that lodged its notice of appeal on May 17, 2022, on August 2, 2022 released funds to its opponents in fulfilment of the judgment of the Court of Appeal yet waited another five (5) months before arriving at a decision to pursue an appeal to the instant court by way of certification. The concept of timelines and timeliness was a vital ingredient in the quest for efficient and effective governance under the Constitution which must be adhered to. The applicants explanation in the circumstances was neither reasonable nor satisfactory and great prejudice would be occasioned to the respondents if the application was to be allowed.