A. G. Absi V. N. G. Mends (1935)

LawGlobal Hub Judgment Report – West African Court of Appeal

Preliminary objection

Held: Application for extension of time wherein to appeal must not be ex parte.

The facts grounding the objection are sufficiently seat out, in the judgments.

C. D. 11. During for the Appellant.

E. S. B. Betts for the Respondent.

The following judgments were delivered:—

MACQUARRIE, J.

On this appeal corning on for hearing, Mr. Betts raised a preliminary objection that this Court had no jurisdiction to hear the appeal, firstly, on the ground that the Court below had no power to grant an extension of time to appellant to apply for final leave to appeal after the time limited by the rules had expired as it had done; and secondly, that, even if it had such power, the application by appellant for the extension of time and the order granting the extension were made ex parte and were therefore of no effect.

In my opinion the objection succeeds on time second ground. After considerable discussion it was agreed that the order granting time of December 12th which was alleged to have been made and eaneelied (which does not appear on the record) was to be ignored and the matter to be treated as though the order granting tiMe made on December 21st was the order under discussion. Mr. Betts argued that this order having been made ex parte was ineffective.

In my opinion, such an order affecting both parties could only be made on notice to the respondent so as to give hint an opportunity of objecting (See U. 411 r. 3 as applied by Rule 30 of the Court of Appeal Rules, and Evennett v. Lawrence 4G L.J. Ch. 119).

Theijii7StiOn which remains to be decided therefore is whether the order W►S tirade ex parte or on notice. Such a question would appear to be one which should be easily answered, but the circumstances here are a little peculiar. The Court below having cancelled the order of December 12th and ordered !whet^, to he

given to Mr. Betts, Mr. During served a notice upon Mr. Betts, A. G. Absi dated 19th December, of hearing on the 20th, on which dayv.
respondent’s solicitor, Mr. Betts, attended for the purpose of N. G. objecting that the notice was irregular as not being long enough. Mends.

The matter was adjourned to the following day when Mr. During

_7.acquarrie,

objected to Mr. Betts’ right to be heard, whereupon the latter asked

that this be noted and that he would take no part in the hearing.

The Judge then made an order on appellant’s affidavits granting fourteen days time. This order—page 40 of the record—is in form an order on an ex parte motion, and, in view of this fact, confirmed by the judgment of the same Judge on an application made later on to set aside the order, when he says ” It is true that the order was made ex parte,” I find myself bound to hold that the order was made ex parte, in spite of the argument of Mr. During to this Court that Mr. Betts appeared and chose to decline to take part in the hearing. It has to be borne in mind that Mr. During himself adopted the attitude of one moving ex parte and obtained an order as above stated. It is, I think, not possible to hold, as he strenuously argued, that respondent’s solicitor was in the position of one to whom due notice of a motion had been given for the purpose of enabling him to make any objection to the application—the subject of the motion which he might wish to make.

This being so, the motion was one made in effect without notice to the respondent and therefore for the reason above stated, ineffective. It follows that the order made is equally ineffective and that the appellant has failed to comply with the rules as to obtaining formal leave to appeal. It is unnecessary therefore to consider the first ground.

In my opinion the appeal should therefore be dismissed with costs.

STROTHER STEWART, J.

I concur.

BROOKE, J.

I adopt the view that the order granting extension of time was made ex parte and for this reason was ineffective. Evennett v. Lawrence 46 L.J. Ch. 119 is clear on the point that no such application can be entertained ex parte. The order would affect both parties and the other side must be given an opportunity of objecting whiCh in this case was not afforded to the respondent.

The rules of Court governing appeals must be strictly observed.