Madam Oni Amudipe V. Chief Ogunleye Arijodi (1978)

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ALEXANDER, CJN.

The plaintiff/appellant before this court originally filed an action in the Ondo Divisional Grade ‘A’ Customary Court, sitting at Akure, claiming against the defendant/respondent – “1. Declaration of title to a piece of land which forms part of and known as Uwaji- Ipona nla farmland in Akure valued £300.   2. £100 being special and general damages for trespass committed by the defendant on the said farmland during the months of August and September, 1969.

3. Injunction to restrain the defendant by himself, his servants or agents from committing further acts of trespass on the said farmland.”   The Customary Court granted the plaintiff the declaration of title claimed, awarded general damages of £50 for trespass against the defendant and granted the injunction sought. The defendant appealed to the High Court of the former Western State, sitting at Akure, against the judgment of the Customary Court. The High Court allowed the appeal, set aside the judgment of the Customary Court and ordered that the case be sent back for retrial by the lower court.

The plaintiff, being dissatisfied with the decision of the High Court, appealed to the Court of Appeal of the former Western State seeking to set aside the judgment of the Customary Court. The Court of Appeal dismissed the appeal and affirmed the order of the High Court setting aside the judgment of the Customary Court and requiring a retrial, but ordered that the retrial should not be before the Customary Court President who originally tried the case.  

The plaintiff, being dissatisfied with the decision of the Court of Appeal of the former Western State appealed to this court seeking to set aside the judgment of the Court of Appeal of the former Western State and to restore the judgment of the Customary Court. Before the hearing of the appeal, the defendant/respondent filed a notice of intention to rely upon a preliminary objection pursuant to Order 7, rule 14 of the Supreme Court Rules, 1961 as follows:-

“TAKE NOTICE that the respondent herein named intends at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you viz: AND TAKE NOTICE that the grounds of the said objection are as follows-   1. The appeal is not properly before the Supreme Court as: (i) The notice of appeal was not filed within time as provided by Section 31 of the Supreme Court of Nigeria Act 1960.   (ii) The notice of appeal was not signed by the appellant herself as required by the rules of the Supreme Court.” At the hearing learned counsel for the respondent quite rightly abandoned ground (ii) of his objection, there being no merit in it. He then proceeded to argue ground (i) of his objection.

Now, Section 31 of the Supreme Court Act, 1960 provides as follows- “31.(1) Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by subsection (2) of this section that is applicable to the case.   (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; (b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.  

(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the hearing of the application by the court below, to make an application to the Supreme Court. (4) The Supreme Court may extend the periods prescribed in subsection (2) except in the case of a conviction involving sentence of death.”  

Learned counsel for the respondent submitted that this appeal to the Supreme Court, being in respect of a final decision of the Court of Appeal of the former Western State contained in a judgment delivered on December 13, 1974, notice of appeal should have been filed within the period of three months from the date of the final decision, that is, not later than march 12, 1975. In fact, notice of appeal was filed on April 3, 1975, that is, about three weeks later.

He pointed out, however, that the appellant had applied for leave to appeal to the Supreme Court by an application which was filed on January 28, 1975 and heard on March 3, 1975, when the leave was granted. Both the applications for leave and the grant of leave were therefore within the period of three months, even though the notice was filed after the period had expired.

He conceded that although the appeal was not properly before this court, being out of time, the appellant could apply to this court for extension of time within which to file the notice of appeal; pursuant to Section 31 (4). However, he relied on the authority of the case of Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 in which this court stated at pages 146 to 147 as follows:-  

“Under the provisions of Section 31 (2) (a) of the Supreme Court Act in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the sub-section but must also file his notice and grounds of appeal, after having obtained the leave, within the same period.

The appellant/plaintiff in the present case failed to file his notice and grounds of appeal within three months as he ought to do. The ground on which the appellant/plaintiff relies for asking this court to exercise its discretion under Section 31 (4) of the Act for extension of time is, as we have indicated earlier on, that his failure to file his notice and grounds of appeal immediate after the court below had given him leave was due to inadvertence or negligence of the counsel who held brief for his counsel in the court below.  

This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. (See T.A. Doherty & Anor. v. R.A. Doherty (1964) 1 All NLR 299 and G.B.A. Akinyede v. The Appraiser (1971( 1 All NR 162)”   The application in Bowaje’s case for extension of time within which to file the notice and grounds of appeal was accordingly granted. Learned counsel for the respondent also referred us to the earlier case of Yesufu Babajide v. Akitoye Aisa and Anor. (1966) 1 All NLR 254 in which this court, in interpreting the provisions of Section 31 of the Supreme Court Act 1960, held that whilst the application for leave to appeal had to be made within the period prescribed under the section, there was no time limit prescribed for giving notice of appeal after leave is obtained.   On the other hand, learned counsel for the appellant pointed out what he referred to as the apparent inconsistencies in the two cases cited and contended that his notice of appeal was filed within time. He submitted that in the present case, the period of three months referred to in Section 31 of the Supreme Court Act started to run from the date of the final decision against which the appeal was lodged.

While appreciating the fact that Babajide’s case went even further than that, since it was there held that no time limit was prescribed in Section 31 for giving or filing notice of appeal after leave for that purpose had been granted, he submitted that Bowaje’s case does not apply in the circumstances of the present case. We do not agree that no time limit is prescribed in Section 31 for giving or filing a notice of appeal after leave has been granted or that there is a hiatus in the law as stated in Babajide’s Case. On the contrary, we hold the view that Section 31 does prescribe a period of three months for giving or filing a notice of appeal in any event.

Learned counsel for the appellant also submitted that the word “or” in the introductory portion of Section 31 (2), when read disjunctively in the context of the section, provides for a separate period of three months for giving notice of appeal, thereby allowing the appellant a total period of six months to give notice of appeal where he first has to obtain leave to appeal. We find ourselves unable to accept this submission and repeat that on a clear interpretation of Section 31 (2) (a), as applicable to the circumstances of this case, notice of appeal must, in any event, be given and filed within the period of three months prescribed by that Section. Otherwise, we would arrive at the patently absurd position that an appellant who may appeal as of right has only three months to give notice of appeal while an appellant who must first obtain leave to appeal would ultimately enjoy the greater right of having six months to give notice of appeal. With this we cannot agree.  

In the result, we agree with the submissions of learned counsel for the respondent and follow and adhere to the later decision of this court as contained in the judgment in Tunji Bowaje v. Moses Adediwura (1976) S.C. 143. The p

Other Citation: (1978) LCN/1977(SC)