Federal Supreme Court Salawu lanlokun Bola v. Archdeacon S.V. Latunde And Lanlokun Bola Ogunpa v. St. James’s Church Ogunpa, Ibadan (1963)

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BRETT, F.J.

This matter arises out of a judgment given by the late Sir Olumuyiwa Jibowu, C.J., in the High Court of the Western Region on the fifth February, 1959, and first came before this Court as long ago as the 29th April, 1960. Since then, numerous applications have been made both to this Court and to the High Court, but the desired result, of obtaining a hearing on the merits, has not yet been achieved.

Jibowu, C.J., had before him a suit brought in the original jurisdiction of the High Court, 1/227/1955, and an appeal from a native court, 1/61A/56, in which he had decided to rehear the case de novo. The original suit and the appeal concerned the same land, and the parties represented the same interests, and by consent the two matters were consolidated for hearing, and a single judgment was delivered. It was in favour of the present respondents and against the Bola family, and the Bola family gave notice of appeal to this Court.

When the appeal came up for hearing the respondents raised objections both to the grounds of appeal originally filed and to certain of the additional grounds filed. One of these objections was that although an appeal lay as of right against the decision in suit 1/227/1955, it only lay by leave of this Court or of the High Court in appeal 1/61A/56, and leave had not been obtained. The Court upheld this objection, and the relevant passage of the ruling reads:

“The appeal 1/61A/56 is not before us. Mr Kotun if he so desires can go to the High Court and obtain leave in respect of the appeal.
We are prepared to hear arguments on 1/227/55.

Kotun asks for adjournment; wishes the two to be taken together. Adjourned sine die: Liberty to either side to apply for hearing date.”

It is unnecessary to trace in detail the various steps taken by the appellants since then, but the salient facts must be stated. On the 24th October, 1960, the High Court granted leave to appeal on an ex parte motion, but on the 14th November, 1960, this was rescinded on the motion of the respondents. After inconclusive proceedings had taken place in this Court on the 6th February and 6th March, 1961, a fresh application was made to the High Court on the 18th September, 1961, and was dismissed on the 19th February, 1962, on the ground that an extension of time for making the application had not been granted by this Court. Notice of the present motion was given on the 30th October, 1962; as regards 1/61A/56 the motion asks for an extension of time within which to apply for leave to appeal, and for the grant of such leave.

There is no doubt that the applicant has been guilty of serious delays in bringing his application, and it is not a complete explanation to say, as he does in his affidavit in support of the motion, that he has been “seeking legal advice both in this Country and in the United Kingdom”.

While we recognise that there may be inconvenience in allowing two matters which were consolidated by consent in the High Court to be disposed of, one by the judgment of the High Court and one by that of this Court, we cannot say that the applicant has shown a sufficiently strong case for the grant of the extension which he asks for and the application is refused as regards 1/61A/56.

We would add, although the matter was not argued before us, that it appears doubtful whether we should have had jurisdiction to grant the extension. For this purpose we have to look at the law as it stood on the 6th February, 1959, when the judgment of the High Court was delivered.

Section 49 of the Customary Courts Law had conferred a right of appeal to this Court, but the right had to be exercised in accordance with the provisions of the Federal Supreme Court (Appeals) Ordinance relating to appeals from Native Courts, which required the leave of the High Court to be obtained under section 7 of that Ordinance: Odedina v. Fashina (1959) 4 F.S.C. 77. Order XLIV A, rule 1, of the Supreme Court (Civil Procedure) Rules laid down that application for leave to appeal must be made to the High Court within fourteen days of the decision against which leave to appeal is sought, and since no provision was made for this matter in the High Court (Civil Procedure) Rules of the Western Region it is arguable that section 72 of the High Court Law kept this provision in force notwithstanding section 49 (3).

Furthermore, what ever time may have been limited for the making of an application to the High Court, rule 14 (4) of the former Test African Court of Appeal Rules provided that any application for an extension of time must be made within one month from the expiration of the time within which the appeal might be brought.

This rule was held in Douglas v . Federal Public Trustee (1959) 4 F.S.C. 15 to apply to appeals from decisions of the High Court given in its appellate jurisdiction, and therefore applies in this case. This Court now has unlimited powers of extending the time in civil cases, but it was held in Adeleke v. Cole [1961] All N.L.R. 35 that the power could not be exercised in a case in which all rights relating to appeal had expired before the 2nd June, 1960, when the Federal Supreme Court Act, 1960, came into operation.

As regards the appeal in suit 1/227/1955, the position is complicated by what took place in this Court on the 14th December 1960, when the appellant was represented by Mr Makanju. The record contains the following passage:-
“This is the case 1/227/1955.
Makanju: Leave to appeal has been refused by the High Court. I now ask for leave of this Court.
Court: Leave is refused.”

This Court had previously held that the appeal was properly before it, and it might have been possible to hold that leave to appeal was refused merely because it was unnecessary but unfortunately the formal order drawn up in consequence of this decision was one dismissing the appeal, and as long as this order remains in force the appeal stands dismissed.

Every court has inherent jurisdiction to ensure that its order carries into effect the decision at which it arrived: Unnanse v. Unnanse [1950] A.C. 561; and if necessary Order 28 rule 11 of the Rules of the Supreme Court in England might be invoked by virtue of Order 7 rule 36 of the Federal Supreme Court Rules. This would appear to be a proper case for exercising the power of amending the formal order, but there is high authority for saying that the correction ought to be made upon motion to that effect, unless the parties consent to the Courts dealing with the matter as if the necessary motion had been brought: Hatton v.Harris [1892] A.C. 547.

In the present case, if the parties consent the order will be amended so as to bring it into conformity with the decision given in open court on the 14th December, 1960, and an order will be made, as prayed, substituting Samuel Dehinde Latunde and Mrs Ebun Akinshete, the administrator and administration of the estate of the late Archdeacon S. V. Latunde, for him as respondents to the appeal in suit 1/227/1955.

If the parties do not consent to our taking this course the motion will stand over for four weeks so as to give the appellant the opportunity of lodging a separate motion for the correction of the Court’s order.

F.S.C.49/1960