Vol. 47, No. 2
Case Note
271
the time limit for the Legal Department to ®le a counter-af®davit in an urgent
application of this type was 48 hours. Since the Legal Department was served
on 18 October, it had had at least ®ve clear days—more than enough time—
to prepare and ®le the counter-af®davit. Therefore, it was argued, the appli-
cation for further extra time was rightly rejected because it was dilatory. But
this contention was brushed aside by the Court of Appeal. The court took the
view that the Legal Department was entitled to additional extra time to
prepare and ®le their counter-af®davit in this case. Why?
Excessive sympathy for the prosecution
The only reason given by the Court of Appeal was that the matter was
``serious and needed proper investigation for the appellants to come up with a
counter af®davit''. Yet the Court of Appeal failed to identify the circum-
stances which made this case such a special case to warrant so much addi-
tional time for the Legal Department to prepare a counter-af®davit. Surely it
was not enough for the Court of Appeal simply to say that this was a serious
matter. Indeed the charges ultimately laid against the defendants (under
sections 231 and R 370(12) of the Penal Code23) do not support this view.
This reason is therefore not a convincing justi®cation for the Court of Appeal
to disturb the order of the magistrate.24
Moreover, even if it is accepted that more time was needed in this case, the
Legal Department had already had more than double the usual time allowed.
Why was the Court of Appeal prepared to give the Legal Department addi-
tional extra time? The Legal Department was served with the af®davit of the
applicants on 18 October. The hearing took place on 24 October. This means
that by the date of the hearing the respondents had had ®ve days within
which to prepare their counter-af®davit. During the hearing they asked for an
adjournment until 29 October—in other words asking for a total of 11 days to
prepare the counter-af®davit rather than the usual 48 hours. The magistrate
did not think this to be right. But the Court of Appeal found it necessary to
23 These are not serious offences. None is punishable with imprisonment for more than six
months (see, n. 4 above). Indeed the maximum sentence for the offence under s. R 370(12) is
10 days imprisonment or such imprisonment and ®ne not exceeding CFA 25,000, the equivalent
of roughly £25 (pounds sterling).
24 Another gripe of the Court of Appeal was that although the record of proceedings shows that
counsel for the prosecution said in court that ''We are strongly opposed to the prayers of the
[applicants]'' yet the magistrate ''embarrassingly'' stated that ''The Respondents are not opposed
to the prayers of the applicants.'' This criticism by the Court of Appeal suggests that the magistrate
misheard the respondents or deliberately misstated what counsel for the respondents said. But this
is not the case. The truth is that the Court of Appeal missed the point completely. The point is
that it had been submitted for the applicants (at p. 2, lines 27±29 of the records of proceedings)
that since the respondents, the Legal Department, had failed to ®le a counter-af®davit, ''the
presumption is that the Legal Department is not minded to oppose the application.'' That
presumption is not rebutted by a bare statement that ''we are strongly opposed to the applica-
tion''. So, after hearing both sides, the magistrate's conclusion was that the presumption applied,
since it had not been rebutted. Hence his statement that ''the respondents are not opposed to the
prayers of the applicants''. The Court of Appeal judges misunderstood this statement because they
read it without reference to the legal arguments canvassed at the bar. It may be that perhaps the
magistrate could have stated more distinctly that he was applying the presumption contended for
by the applicants, but, in my view, it is suf®ciently clear from the record of the ruling that that is
what he did, when he made the statement which the Court of Appeal ®nds embarrassing.