Tunji Bowaje V. Moses Adediwura (1976)

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M. BELLO JSC SOWEMIMO, JSC 

This is an application by the appellant/plaintiff for an order for extension of time within which to formally file the notice and grounds of appeal against the decision of the Western State Court of Appeal, and for leave to argue additional grounds of appeal and for such order or orders as we may deem fit to make. 

The appellant/plaintiff had obtained judgment against the respondent/defendant in the Ilesha Divisional Grade ‘A’ Customary Court. The respondent/defendant’s appeal against that judgment in the High Court of the Western State was dismissed. He further appealed to the Western State Court of Appeal and, on 2nd March 1973, that court allowed his appeal, set aside the decisions of the lower courts and dismissed the appellant/plaintiff’s claim in the trial court with costs.    

Not satisfied with the decision of the Western State Court of Appeal, the appellant/plaintiff applied to that court on 15th May, 1973, for leave to appeal to this court and on 4th June, 1973, the court below granted him leave to appeal. Thereafter, the appellant/plaintiff did not file his notice and grounds of appeal until the 5th of March, 1974. The reason for the delay has been stated in the affidavit, which is attached to the application before us, as being due to inadvertence or negligence of one Mr. Adeyemi of counsel, who had held the brief of the counsel for the appellant/plaintiff at the hearing of the application for leave to appeal in the court below.

It is common ground that the notice and grounds of appeal were filed out of time.    The appellant/plaintiff has now applied to this court for an order for extension of time within which to formally file his notice and grounds of appeal and also for leave to argue additional grounds of appeal which he has attached to the affidavit in support of the application.    

During the hearing of the application in this court, Mr. Lardner, counsel for the respondent/defendant, has taken a preliminary objection, which he argued extensively, challenging the validity of the order of the Western State Court of Appeal granting to the appellant/plaintiff leave to appeal. He contended that the application for leave to appeal ought to have been filed in the court below within 14 days of the judgment of that court. However, after having heard the reply to the objection by Mr. Molajo, counsel for the appellant/plaintiff, Mr. Lardner did concede to the validity of the said order.    

We are in complete agreement with the learned counsel that by virtue of Section 117(4)(c) of the Constitution of the Federation and Section 31(2)(a) of the Supreme Court Act, a party who desires to seek leave of the former Western State Court of Appeal to appeal against its final decision had three months, as from the date of the decision, within which to file his application for leave to appeal. In the case in hand, the decision against which the appellant/plaintiff desires to appeal was made on 2nd March, 1973, and he filed his application for leave to appeal on 15th May, 1973. It therefore follows that he acted within the time permitted by Section 31(2)(a) of the Act. The point taken at the preliminary objection is misconceived.

We now proceed to consider the application before us. 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 immediately 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 NLR 162).

In the case in hand, although it may be said that the appellant/plaintiff’s counsel in the court below must have contributed to the delay in that he did not file the application for leave to appeal in the court below until the 15th May, 1973, i.e. 17 days before the time for filing the notice and grounds of appeal expired, we think the effective cause of the delay may be attributed to the court below in that it granted leave on 4th June, 1973, which was two days after the time for filing the notice and grounds of appeal had expired. Under that circumstance, even if Mr. Adeyemi had filed the notice and grounds of appeal immediately thereafter, as he was instructed to do by the counsel for the appellant/plaintiff, the appellant/plaintiff would have been out of time.

For the foregoing reasons, we are of the view that the application should be granted and it is hereby granted. In view of the fact that the Western State Court of Appeal has ceased to exist, we think it is in the interest of justice to make an order that the notice and grounds of appeal filed in that court on the 5th of March, 1974, should be deemed to have been duly filed.

We accordingly order as follows: –   (a) that the appellant/plaintiff be and is hereby granted extension of time until 5th March, 1974, within which to file his notice and grounds of appeal; (b) that the notice and grounds of appeal dated 5th June, 1973, and filed in the former Western State Court of Appeal on 5th March, 1974, shall be deemed to have been duly filed; (c) that the appellant/plaintiff be and is hereby granted leave to argue the additional grounds dated 2nd April, 1976, filed with the papers in support of this application. The respondent/defendant is awarded costs of this application assessed at N20.  

Other Citation: (1976) LCN/2290(SC)