Azeez Akeredolu & Others V. Lasisi Akinremi (1985)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C.

A preliminary question dealing with the computation of the times and periods prescribed by Section 31 of the Supreme Court Act 1960, has arisen in this appeal which came from the Court of Appeal, Ibadan, on a judgment delivered by that court, sitting on appeal on a judgment of the High Court, Ilaro, in respect of a claim for ownership of a piece of land situate in Otta, Ogun State, along Lagos/Abeokuta Road. The respondent says that the appeal was filed out of time and has raised this by way of preliminary objection.

Judgment of the Court of Appeal was delivered on Wednesday, 10th April, 1985. Mr. Ajayi, S.A.N., stated that the notice of appeal was filed on 10th July, 1985. Chief Williams, S.A.N., although arguing that the three months expiry date for filing the appeal should be the 10th day July, 1985, stated that in fact he filed his appeal on 8th July, 1985. I have since checked the file from the Court of Appeal and the records of this court and found the date of filing the appeal to be 10th July, 1985. Mr. Ajayi, in support of his objection, submitted that the time to appeal under Section 31(2) of the Supreme Court Act is “3 calendar months” and that the Interpretation Act 1964 made this clear. He argued that 3 calendar months from 10th April 1985 expired on 9th July, 1985 and that the appellants were out of time by one day. He relied on Migotti v. Colvill (1878) 4 C.P.D. 233. He pointed out that the appellants did not file any application for extension of time to appeal, and that even if they did, there must be an appeal pending to which an application for leave to appeal could be attached. The appellants, he said, made an application for leave to appeal before the Court of Appeal but that was refused by that Court. Even that application before that court was filed out of time, therefore, he said, no application was therefore, in law, made.

Chief Williams, in reply, argued that if judgment was given on 10th April, 1985, the 3 months period would expire on one whole month and not 29 days and a few hours. The day on which the event happened would not usually be

included. He gathered a pattern of general principles, namely, that

i. where a period of time is prescribed by statute and that period is to be computed by reference to an event which has happened, then the question whether the computation included or excluded, the day on which the event happened would depend on the true intention of the legislature;

ii. where the time prescribed is for the benefit of the person affected by the computation, then as much time should be given as the language of the statute admits. Generally, the computation would always exclude the date on which the event happened;

iii. when a construction of the time prescribed would work detrimentally against the person affected by the computation then the construction which avoids the detriment would be preferred.

He relied on In re North Ex parte Hasluck (1895) 2 QB. 264 particularly the judgments of Lord Esher M.R. and Rigby, L.J. These principles, he stated, had been applied to the statute of limitation in Marren v. Dawson Bentley & Co. Ltd. (1961) 2 QBD. 135 and Pritam Kaur v. Russel & Sons Ltd. (1973) QB. 336. He finally submitted that every period of 3 months is a period calculated in days, relying upon the provisions of the Interpretation Act 1964.

Mr. Ajayi, in replying to Chief Williams’ argument further submitted, relying on the definition of the word “month” in section 18(1) of the Interpretation Act 1964 where it is defined as meaning

“a calendar month reckoned according to the Gregorian calendar”,

that, the index of calculation is “month” and not “days” and that on that basis, 3 calendar months, calculating from 10th April, 1985 when the Court of Appeal delivered its judgment, would expire on 9th July, 1985. In Migotti v. Colvill (supra) the term “calendar month” was being interpreted with a view to determining the date for the discharge of a prisoner after the expiration of his sentence. In that case the prisoner was sentenced on 31st October, 1878, for one offence for “one calendar month” and or a second offence for a period of fourteen days, commencing after the expiration of the calendar month. He was taken into custody on 31/10/1878 and finally released on 14//2/1878. The prisoner claimed to be entitled to be released one day earlier, namely, 13/12/1878. In his judgment, the trial judge, Denman, J. posed the question: what was the meaning of one “calendar month” at the time the sentence was passed He answered it in the following words:

“And I am of the opinion that at that time, viz, on the 31st of October, those words meant a month ending on the day in the succeeding month corresponding to the day of the sentence according to the ordinary understanding of the words “this day calendar month.”

On appeal to the Court of Appeal all the three Lord Justices, Bramwell, L.J., Brett and Cotton, LL.J., agreed with Denman, J., Bramwell, L.J. at page 237 held:

“The only rule which can be laid down is, that where an imprisonment for a calender month begins on a day in one month and terminates in another, so many days must be taken from the second month, if there are enough as will bring the time up to day before that day in the second month which corresponds to the day on which the imprisonment began on the 5th it would end at 12 o’clock on the night of the 4th of the following month; if on the 25th it would end on the 24th; if on the 29th it would end on the 28th; that is to say, we must take as many days in the second month as had already passed in the month in which the imprisonment took place before the imprisonment.”

Brett, L.J., in agreeing, was of the view that the term “calendar month” was a legal and technical term which required a legal and technical interpretation.

He stated that

“The meaning of the phrase is that, in computing time by calendar months, the time must be reckoned by looking at the calendar and not by counting days; and that one calendar month’s imprisonment is to be calculated from the day of imprisonment to the day numerically corresponding to that day in the following month less one.”

Cotton, L.J. agreed and stated in general that the principle must be that a prisoner sentenced to a calender month’s imprisonment, will never be imprisoned for a greater number of days than there are in the month in which he was sentenced; that the matter was a question of law and “not a question of measurement of time but of the technical meaning of the words “calendar month.”

Marren v. Dawson Bentley & Co. Ltd. (1961) 2 QBD. 135 applying Radcliffe v. Batholomew (1892) 1 QB. 161 and not following the decision in Gelmini v. Moriggia (1913) 2 KB. 549 decided that in the computation of the period, under the Limitation Act 1939, within which the action should be brought, the day of the accident must be excluded. This is in line with section 15(2) of our Interpretation Act 1964.

The same exclusion was applied in In Re North Ex parte Hasluck (supra) where it was held that, under the Bankruptcy Act 1890, if a sheriff was to hold the debtor’s goods seized for 21 days, the day on which the seizure was made to be excluded.

It is to be noted that section 31(2)(a) of the Supreme Court Act provides that:

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are (a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;

The term used is “three months” and not “three calendar months” as in Migotti v. Colvill (supra). And so, the interpretation applied in Migotti v. Colvill which all the Lord Justices in the case agreed was a technical one, must be strictly restricted to the phrase “three calendar months” and not applied to the situation in the Supreme Court Act 1960, in which the term “three months” is used. It is however, true that in section 18(1) of the Interpretation Act 1964, the term “month” is defined as “a calendar month” reckoned according to the Gregorian calendar, and Gregorian Calendar is the correction of the Julian Calendar made in 1582 by Pope Gregory XIII, (See 5th Ed. The Concise Oxford Dictionary page 540).

But, by section 15(2) (a) of the Interpretation Act 1964

“A reference in an enactment to a period of days shall be construed –

(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;”

It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1985.

The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15(2) of the Interpretation Act 1964, must be excluded in the computation, on the footing that the appeal was filed on 10th July, 1985. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of Statutes 12 Ed. page 309, citing Lester v. Garland (1808) 15 Yes. 248 and Re North Ex parte Hasluck (supra), has it thus:

“Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.”

For the foregoing reasons, I would accept the contention of Chief Williams that the appeal was not filed out of time. Accordingly, the preliminary objection is not well founded, and is therefore hereby overruled.

A. G. IRIKEFE, C.J.N. (Presiding): The preliminary issue here is on computation of time for the purpose of filing an appeal pursuant to the provisions of Section 31(2) of the Supreme Court Act 1960.

I had, before now, read the lead ruling just read by my learned brother Aniagolu, J.S.C. which dealt fully with all the issues canvassed and I am in complete agreement with his views thereon. Section 15(2)(a) of the Interpretation Act 1964, seem to me a powerful pillar in support of the view that, in computing time, the date of the happening of the event shall be excluded. It provides:-

“(a) Where the period is reckoned from a particular event , as excluding the day on which the event occurs.” Consequently, I also agree that the preliminary objection should fail. There will be no order as to costs.

SC.187/1985(-R1)