S. A. Bamisile V. J. J. Adollo & Ors (1989)
LawGlobal-Hub Lead Judgment Report
AKPATA, J.C.A.
The plaintiffs succeeded in their action in the High Court for a declaration of title to a parcel of land situate at Eleregun, Ikeja District of Lagos State. The defendant’s appeal was dismissed by this Court on Monday the 5th day of June, 1989. Being also dissatisfied with the judgment of this Court the defendant made a motion on notice on 1st August, 1989 seeking leave to appeal to the Supreme Court, that is, less than two months after the said judgment was disposed of but while this Court was on vacation. The motion could not therefore be argued until 20th September, 1989, – three months and fifteen days after the judgment.
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 held that under 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.” This was interpreted to mean that 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 must be filed also within the same period.
This decision of the Supreme Court apparently did not go down well with the Bar. Then came the case of Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9-10 S.C. 27 where a full Court of seven Justices of the Supreme Court reiterated its 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.”
While agreeing that going by the two cases cited above, the defendant/appellant’s application would be incompetent, Mr. Igbokwe arguing the application, hinged it in the Practice Direction of the President of this Court dated 1st day of July, 1988 as Government Notice No. 228 and Practice Direction No.1 of 1988 which states:
- 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.”
Mr. Sofola, S.A.N., learned counsel for the respondents, argued that the Practice Direction would not have been intended for matters within the competence of the Supreme Court and that the direction only related to practice and procedure in the Court of Appeal. I agree with the learned Senior Advocate. Indeed, the Practice Direction limited itself to “the Court of Appeal Rules in respect of any period within which any application for leave to appeal ” No part of the Court of Appeal Rules or the Court of Appeal Act deals specifically with application for leave to appeal to the Supreme Court. It is Section 25 of the Court of Appeal Act that provides for application for leave to appeal and it relates only to, “where a person desires to appeal to the Court of Appeal.” Order 3 Rule 3 of the Court of Appeal Rules provides for application for leave to appeal. The Court of Appeal Act can only extend the period prescribed for giving notice to appeal or notice of application for leave to appeal from a High Court or any other lower Court or tribunal as prescribed by Law under Order 3 Rule 3(6) and not from the Court of Appeal to the Supreme Court.
The position however, it seems to me, is that there is a Practice Direction of the Supreme Court which provides that time will not run during vacation. I have not been able to lay hands on it and it was not cited before us. However, in the case of Nneji v. Chukwu (1988) 3 N. W.L.R. (Part 81) 184 at page 200. Wali, J.S.C., made the point that “the common practice in the Supreme Court and in some of the High Court is that during annual 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 and or in some of the High Courts…”
In his contribution at page 204, Oputa J.S.C., noted 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 by Section 38 of the 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 decision of the Supreme Court in Nneji v. Chukwu was given on 17th June, 1988 and the Practice Direction of the President of this Court was issued on 1st July, 1988. The Practice Direction of the Chief Justice of Nigeria No.18 of 1985 was in respect of brief filing only. This is so because brief filing in the Supreme Court and in this Court is a recent innovation. It seems to me that there must have been a Practice Direction in respect of leave to appeal and other applications during vacation before then. This is implicit in the observation of Wali and Oputa JJ.S.C.
In effect, if time does not run during vacation in the Supreme Court and does not now run in this court in respect of the period within which any application for leave to appeal may be brought and dealt with, it will be wrong to hold that this application is incompetent on the ground that it is out of time. The annual vacation of this Court ran from July 17th – September 3rd both days inclusive. Therefore, in computing the time prescribed, one has to take cognisance only of the period 5th June – 6th July, which is one month and eleven days and the period 4th September until today, which put together are less than 3 months. The application is therefore filed within time and the judgment of this Court is also within the prescribed period. This application is therefore not caught by the decisions in Bowaje v. Adediwura and Amudipe v. Arijodi as at now.
It is also the submission of Mr. Sofola that since there are concurrent decisions of two courts on findings of fact, the application should not be allowed. He cited the case of Anyaebosi v. R. T. Briscoe Nigeria Limited (1987) 3 N.W.L.R. (Part 59) 84 at pages 94 – 95 where the Supreme Court drew attention to the fact that when concurrent findings of fact are made by the Lower Courts such findings will not be disturbed on further appeal to the Supreme Court unless there are exceptional circumstances to justify doing so. The Supreme Court frowned at the ease this Court granted leave to appeal in that case.
Mr. Igbokwe on the other hand argued that ground I of the proposed grounds of appeal relates to Section 34 of the Evidence Act which deals with the relevancy of certain evidence in subsequent proceeding and that the complaint in ground 2 is that the onus of proof was wrongly cast on the defendant rather than on the plaintiffs. He submitted that the Iwo grounds of appeal are not based on concurrent findings of fact by two courts.
Ground 1 complained that the judgment of this Court “is wrong in law and evidence when it upheld the admission in evidence of Exhibit 12.” I find it difficult to pronounce on the reasonableness of the two grounds of appeal with their numerous particulars without trying to justify the decision of this court. All I can say is that the two grounds raise no substantial grounds which should justify this court granting the application. At best the two grounds are based on legal grounds arising from the concurrent findings of fact by the High Court and this Court. The legal grounds are common place. There is nothing substantial in them. In my view it will be wrong to grant leave to the applicant to appeal. The application is therefore dismissed with costs assessed at N100.00 in favour of the plaintiffs/respondents.
Other Citations: (1989)LCN/0090(CA)
