Mrs. Adetoun Omo-ogunkoya V. Funso Omo-ogunkoya & Anor (1989)
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AKPATA, J.C.A.
The simple point in this application is whether the practice Direction of the President of this Court dated 1st day of July, 1988, which is to the effect that time will not run during vacation in computing the time within which an application for leave to appeal may be made, is applicable to applications for leave to appeal to the Supreme Court. If the answer is in the negative, then the question which arises is whether, in view of the practice in the Supreme Court to such or similar applications in respect of which time does not run during vacation, time will still run in such applications in this Court.
The action of the plaintiff in the High Court of Lagos State claiming, amongst other reliefs, a declaration that as a wife under Yoruba Custom, Otunba Adekunle Omo-Ogunkoya (deceased) she was entitled to reside in the family property situate at 42, Oritshe Street, Ikeja, was dismissed. Her appeal to this court was also dismissed on 13th June, 1989.
On 7th August, 1989, about one month and three weeks after the dismissal of her appeal, the appellant filed an application, the subject matter of this ruling, pursuant to Section 213(3) of the 1979 Constitution for an order granting her leave to appeal to the Supreme Court “in so far as the proposed grounds of appeal contained in the notice of appeal… contain mixed law and fact.”
It is necessary to state that this Court was on its annual vacation from July, 17th – September, 3rd 1989, both days inclusive. The application was argued on 17th October, 1989, about four months after the dismissal of her appeal. Under Section 31(2)(a) of the Supreme Court Act 1960 time to appeal or seek leave to appeal is within three months from the date of the decision complained of. In the case of Tunji Bowaje v. Moses Adediwura (1976) 3 S.C. 143 at page 146, the Supreme Court came to the conclusion that under Section 31(2)(a) of the Supreme Court Act, “in a case where leave to appeal is required to be obtained, the 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.” In effect not only must the party seeking leave to appeal file his application within the prescribed period of three months, leave must have been granted within the same period, and the notice of appeal also filed within the same period.
The Supreme Court had an opportunity to reconsider the same legal issue in the case of Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9 – 10 S.C.27. A full court of seven Justices reiterated the court’s earlier decision in Bowaje v. Adediwura and explained at page 33 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 the 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 a greater right of having six months to give notice of appeal. With this we cannot agree.”
Rev. Sister Anne Marie Nzenwa from the chambers of Debo Akande Solicitors submitted that going by the Practice Direction issued by the President of this court dated 1st day of July, 1988 as Government Notice No.228 and Practice Direction No. 1 of 1988, time does not run during vacation. The Practice Direction reads:
“1. For the purpose of giving effect to the provisions of the Court of Appeal Rules in respect of any period within which any application for leave to appeal or for filing appellant’s or respondent’s brief or reply brief the period declared for the vacation of the Court shall not be taken into account for the computation of such period allowed by the Rules of Court.
- For the avoidance of doubt the period between the 15th day of July, 1988 to the 31st day of August, 1988 is hereby declared as vacation period.”
Chief Esan, learned counsel for the respondent, submitted that the Practice Direction has no relevance to application for leave to appeal to the Supreme Court but to application for leave to appeal from the High Court to this Court. Appeal from this court to the Supreme Court is regulated by Section 31 of the Supreme Court Act. I am in agreement with Chief Esan. The Practice Direction only relates to “the Court of Appeal Rules in respect of any period within which any application for leave to appeal…” No rule of the Court of Appeal Rules provides for application for leave to appeal to the Supreme Court. Section 25 of the Court of Appeal Act which makes provision for application for leave to appeal relates only to “where a person desires to appeal to the Court of Appeal.” The position, it seems to me, is that if there is a Practice Direction by the Chief Justice of Nigeria that vacation period will not be taken into account in computing the period for filing application for leave to appeal to the Supreme Court, this court is bound to follow it and time will not run during such vacation period in this court.
In the case of Nneji v. Chukwu (1988) 3 N.W.L.R. (Part 81) 184 at page 200 Wali, J.S.C., observed that, “the common practice in the Supreme Court and in some of the High Courts is that during vacation time does not run. There is nothing in the Court of Appeal Rules, or in the Practice Direction issued by the President of that Court indicating that the practice in the Court of Appeal is the same as it is in the Supreme Court or in some of the High Courts…”
I understand by this that in the Supreme Court time does not run during vacation against an applicant in respect of any period within which an application may be made. The issue in the case under reference was the period within which briefs may be filed. In his contribution at page 204, Oputa, J.S.C., expressed his views thus:
“By Notice under his hand (published as Statutory Instrument No.18 of 1985), G. S. Sowemimo, the Chief Justice of Nigeria issued a practice Direction stipulating that the period of the Court’s annual vacation ‘shall not be taken into account for the computation of the period of filing briefs by either the appellant or the respondent in an appeal before the Court’. Similar rules have been made in other Courts namely Lagos High Court by Order 48 Rule 6 and for Anambra State High Court Edict No.16 of 1987. It is common ground that the President of the Court of appeal, on whom alone resides the power and the responsibility to make Rules for the Procedure and Practice of the Court of Appeal, has not yet made any Rules to govern the filing of briefs during that Court’s vacation. This situation is regretted and one hopes that it may soon be remedied.”
The Practice Direction of the Chief Justice of Nigeria No.18 of 1985 was limited to brief filing only because brief filing in the Supreme Court and this Court is a recent innovation. Before then the practice in the Supreme Court, it seems, had been that time would not run during the annual vacation in any application limited by time. That is implicit in the Judgment of Wali, J.S.C. in Nneji v. Chukwu (supra).
Therefore as time does not run during vacation relating to application for leave to appeal to Supreme Court and since such an application in this court is governed by the Rules of the Supreme Court, and there is a Practice Direction of this Court making a similar provision, although not in respect of leave to appeal to the Supreme Court. it will be wrong and anomalous to hold that time runs in this Court in respect of application for leave to appeal to the Supreme Court.
The annual vacation of this Court and the Supreme Court ran from July 17th – September 3rd 1989 both days inclusive. Therefore in computing the time for filing the application, one has to take into consideration only the period from 13th June when the appellant’s appeal was dismissed to July 16th a day before the annual vacation commenced, which is 33 days, and the period 4th September, up till today which is 51 days which put together make 84 days. The application is therefore within the prescribed period. It is not caught by the decisions in Bowaje v. Adediwura and Amudipe v. Arijodi.
Chief Esan has not complained that the proposed grounds of appeal do not raise substantial issues of law, although they are of mixed law and fact. He has also not canvassed the point that any of the grounds of appeal relates to issues on which two courts have made concurrent findings of fact. In the circumstance, the application is allowed. Leave to appeal is granted. Notice of appeal should be filed within the next few days if the appellant/applicant is not to be caught by “Bowaje” and “Amudipe.” There will be no order as to costs.
Other Citations: (1989) LCN/0078(CA)
