THE QUEEN ex parte CHIEF EMMANUEL ORIEWE (APPLICANT)

                                               v.

                1. CUSTOMARY COURT, GRADE "A" ILESHA

              2. CHIEF DANIEL AIYEGBUSI (RESPONDENTS)

                                 (1961) All N.L.R. 840

Motion to extend time for hearing of Application for Order of Prohibition.

The applicant applied for and was granted leave on the 23rd of May, 1961, to apply for an Order of Prohibition to issue against the First-named respondent. He did not file the Notice of Motion until the 20th of June, and the Motion was not listed for hearing until the 26th of June. It was not actually heard until the 6th of October. At the hearing, it was contended for the First-named respondent that the leave granted to the applicant to make the application had lapsed; as the Motion was not listed within 14 days as required by the Rules of the Supreme Court of Judicature (England) Order 59, rule 5(1). The applicant asked the court to extend the time in his favour.

HELD:

(1) Where leave has been granted to an applicant to apply for an Order of Prohibition, such leave will lapse unless the Motion is listed for hearing within 14 days after the granting of the leave.

(2) Where the time appointed or allowed by a Rule of Court for doing an act or taking proceedings has expired, an enlargement or abridgement of the time can be granted only if the matter before the court is still subsisting: but cannot be granted after the matter has lapsed.

Motion struck out.

Cases referred to:-

Manley Estates Limited v. Benedick, (1941) 1 All E.R. 248.

Whistler v. Hancock, (1878) 3 Q.B.D. 83; 47 L.J.Q.B. 152; 37 L.T. 639; 26 W.R. 211.

Wallis v. Hepburn, (1878) 3 Q.B.D. 84.n.

Law referred to:-

W.R. Administration of Justice (Crown Proceedings) Law, 1959 (W.R. No. 3 of 1960).

Orders and Rules referred to:-

Rules of the Supreme Court of Judicature (England), Order 29, rule 1; Order 59, rule 5(1A), 47; Order 64, rule 7.

MOTION to extend time for hearing of Application for Prohibition.

Alaka for the Applicant.

Balogun, Crown Counsel, for the Respondents.

Morgan, J.-This is an application for an order of Prohibition to issue to Chief D. O. A. Oguntoye, President, Grade "A" Customary Court, Ilesha, prohibiting him from adjudicating on a suit pending before him-Suit No. C.86/60-entitled:-

Chief Daniel Aiyegbusi, The Lotun (PLAINTIFF)

                   versus

Emmanuel Oriewe Dagbaja of Ipetu (DEFENDANT)

The application for leave to apply for the order was filed on the 6th May, 1961 and granted on the 23rd May, 1961. The motion praying for the order of prohibition was filed on the 20th June, 1961 and was put in the list for hearing on the 26th June, 1961.

After some adjournments it came before the court on the 6th October, 1961 and Mr Odutola for the first respondent submitted that the application for leave to apply for the order lapsed on the 6th June, 1961 and that the motion should be struck out.

Mr Alaka for the applicant in reply submitted that leave for extension of time should be granted.

Section 5(2) of the Administration of Justice (Crown Proceedings) Law, 1959 (Western Nigeria), provides as follows:-

Until rules of court are made by virtue of the provisions of subsection (1) of this section, the procedure for the time being applicable in the High Court of Justice in England in relation to the matters specified in that subsection shall apply in the High Court of the Region with such adaptations as are necessary for the circumstances of the Region.

And the relevant procedure for the time being applicable in the High Court of Justice in England will be found under Order 59 R.S.C.

By the provisions of Order 59 Rule 5(1A) R.S.C. leave to apply for the order of prohibition, certiorari and mandamus shall lapse unless the notice is put on the list for hearing within fourteen days after leave has been granted.

In this case leave was granted on the 23rd May, 1961 and therefore lapsed unless the notice had been put in the list for hearing by the 6th June, 1961. The notice was not filed until the 20th June, 1961 and was not put in the list for hearing until the 26th June, 1961. This motion must therefore be struck out unless it is possible to extend the time within which the notice is put in the list for hearing.

On this point Order 59 Rule 47 R.S.C. provides that subject to the provisions of this Order the Rules of the Supreme Court, 1883, shall apply, so far as applicable to proceedings to which this Order relates, in like manner as they apply to other proceedings in the Supreme Court. The appropriate rule of the Supreme Court is Order 64 Rule 7 which provides that:-

A Court or Judge shall have power to enlarge or abridge the time appointed by these Rules, or fixed by an order enlarging time, for doing any act or taking any proceeding ... and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.

Sometime in June 1961 I myself granted, in another matter, an extension of time after the period of fourteen days appointed by Order 59 Rule 5(1A) had elapsed. Upon further reflection and after considering other authorities I am satisfied that the leave granted having lapsed no extension of the time appointed is possible. In my Judgment the test as to whether there is power to enlarge any time fixed by the rules, although the application for the same is not made until after the expiration of the time appointed or allowed, is whether or not the matter before the court is still subsisting or has disappeared. In Manley Estates Limited v. Benedick, (1941) 1 All E.R. 248, 251 (C.A.) Mackinnon, L.J., said:-

I think that one would be deleting these words `although the application for the same is not made until after the expiration of the time' from the rule altogether if this suggested point were a good one. Counsel for the respondents relies, and there was reliance below, on cases of a totally different nature, where, after an action was dismissed-and, therefore Judgment entered for the defendant-it was held that the plaintiff could not make an application to enlarge the time in that action, as the action had disappeared. Here the action has not disappeared. It is in existence.

One of the cases referred to by Mackinnon, L. J. upon which reliance was placed in the court below was the case of Whistler v. Hancock, (1878) 3 Q.B.D. 83 where a Master made an order under Order 29, Rule 1 dismissing the action for want of prosecution, unless the Statement of Claim were delivered within a week, Cockburn, C.J., held that the taking out of a summons to set aside the appearance cannot keep the action alive after the period when by operation of the Master's order it was defunct. The authority was followed in Wallis v. Hepburn, (1878) 3 Q.B.D. 84. In that action an order was made dismissing it unless a Statement of Claim were delivered within ten days. The time having expired an order was made extending the time for delivering the Statement of Claim. It was held on appeal that there was no jurisdiction to make the second order, the action being dead.

Applying this principle to the present case it is my view that although the time appointed by Order 59 Rule 5(1A) may be extended by virtue of the provisions of Order 64 Rule 7 such order cannot be made after the leave granted has lapsed and become defunct or dead. I therefore uphold the objection raised by the learned Counsel for the first respondent and strike out the motion.