Ofem Odey On Behalf Of Himself & Anor V. Ovat Edim Of Akam On Behalf Of The People Of Akam (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application for extension of time to file appeal with grounds special exercise of Court’s discretion under section 8 of the West African Court of Appeal Ordinance, 1933.

The application was made under rule 15 of the West African Court of Appeal Rules and was misconceived as it can only be made to the Court below. Owing to an error on the part of the legal practitioner no appeal was filed within the time meowed by rule 14. Application was made to Court below to extend time but no rule was specified and the Court below as a result erroneously held that it could sot entertain the application. Appellant did not appeal against the dismissal of the motion.

Held : Following the principle laid down by the Privy Council in Kojo Pon

Atta Fua, Gold Coast, Privy Council 1874-1928, p.95, that in the very special circumstances of this case the Court would exercise its discretion under section 8 of the West African Court of Appeal Ordinance of 1933 to entertain this appeal an certain conditions.

The facts of the case are sufficiently set out in the Order.

W. Palmer f.3r Appellant.

O. 0. Alakija for Respondent.

The following order was given :—

KINGDON, C.J., NIGERIA, PETRIDES, G.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

This is an application to this Court purporting to be made under rule 15 of the West African Court of Appeal Rules for an extension of time to file the appeal with grounds or for such other Order as may be just in the circumstances.

The application under rule 15 is misconceived, as such application can only be made to the Court below, but this Court is also asked to make such other Order as may be just.

It is admitted by the would-be appellant that owing to an error on the part of the Legal Practitioner who then represented him (not the Legal Practitioner who appeared in this Court) no appeal was filed within the time allowed by rule 14 of the West African Court of Appeal Rules, nor indeed has any appeal been lied up to date.

The would-be appellant did, however, make application to the Court below for an extension of time within which to file his appeal. In making that application lie failed (as, indeed did his Counsel in his present application to this Court until he was called upon to comply with rule 9 of the Rules) to specify under what rule he made his application. The result was that the Court below evidently overlooked rule 15 of the rules and thinking wrongly, owing to an erroneous interpretation of rule 25, that it could not entertain the application, dismissed the motion.

The would-be appellant might have appealed against that dismissal, but did not do so.

In spite of these errors and omissions on his part, this Court feels that, if it can possibly do so, it must endeavour to give him the opportunity of obtaining substantial justice in the shape of his appeal being granted a hearing on its merits provided always that no injustice is thereby caused to the other side.

This is following the principle laid down by the Privy Council in the Gold Coast case of Kojo Pon v. Alta Fua (Gold Coast, Privy Council 1874-1928, page 95) in which Viscount Haldane said : —

” Their Lordships wish to say that in cases coining before them from the Dominions of the Crown, their first consideration always is to secure, if possible, that substantial justice is done.”

In some cases, e.g. where there is no jurisdiction, it is not possible to comply with this principle. But in the present case no such obstacle exists and this Court has the widest discretion to entertain this appeal under section 8 of the West African Court of Appeal Ordinance, 1933.

In view of the very special circumstances that one of the reasons why the appellant, without the exercise of that discretion, finds himself unable to pursue his appeal, is that his application for an extension of time was refused by the Court below owing to a wrong understanding of its powers, we have decided to exercise our discretion under section 8 of the Ordinance in the appellant’s favour. We accordingly decide under section 8 of the West African Court of Appeal Ordinance to entertain the appellant’s appeal upon the terms that he files his appeal in this Court within three days in Form II of Appendix A to the Rules and within the same time serves a copy thereof upon the Respondent’s Solicitor.

Since this is a very special exercise of the Court’s power in appellant’s favour and since the whole necessity for this Order arises by his own default or that of his former Solicitor he must pay to the respondent within seven days five guineas costs of the proceedings upon his present application.

The payment of these costs within seven days is an additional term to be complied with by the appellant in order to secure the entertainment of his appeal by this Court.