BELLO ADELEKE, ALHADJI M.S. JAFFAR, IBADAN (PROVISIONAL DISTRICT COUNCIL) (APPELLANTS)
AKINOLA COLE (RESPONDENT)
(1961) All N.L.R. 38
Division: Federal Supreme Court
Date of Judgment: 6th February, 1961
Case Number: FSC 55/1960
Before: Ademola C.J.F., Unsworth, Bairamian, F.J.J.
In a civil case in which, under Rule 14 of the Federal Supreme Court Rules, the time for appealing and the further time allowed for applying for enlargement of time had expired before the Federal Supreme Court Ordinance, 1960, came into operation, the court has no jurisdiction either to hear the appeal or to enlarge the time for appealing: Rule 35 of those Rules does not empower the court to disregard Rule 14; and Rule 68 does not apply to civil appeals.
Cases referred to:-
Moore v. Tayee, 2 W.A.C.A. 43
Oranye v. Jibowu, 13 W.A.C.A. 41
APPEAL from High Court of Western Region.
Agbaje for Appellants.
Respondent, in person.
The respondent having raised a preliminary objection, the following Ruling was given:-
Unsworth, F.J.:-The respondent in this case has raised two preliminary objections, namely:-
(i) that the appellants were already out of time as notice of appeal was filed after the expiration of three months from the date Judgment was given and there is no application by the appellants for enlargement of time;
(ii) that the appellants not being a party to the proceedings in the court below can only come to this Court on appeal by leave, which has not been obtained.
The time limit for appealing applicable to this case is that prescribed by Rule 14 of the Federal Supreme Court Rules. Sub-rules (1) and (2) of that rule provide that no appeal shall be brought against a final decision after the expiration of three months from the date of that decision unless the time has been enlarged, and sub-rule (4) of that rule provides that no application for an enlargement of time shall be made after one month from the expiration of the time prescribed for the bringing of an appeal. In this case the date of the decision was the 2nd March, 1959 (not the 3rd March as inserted in the purported notice of appeal) and (although there appears to have been some confusion over the exact date) it is clear that the notice was not filed before the 3rd June, 1959, which is one day out of time. No application for an extension of time has been made and the time for making such an application expired on the 3rd July, 1959, by virtue of sub-rule (4) of Rule 14 mentioned above. In these circumstances the court has no jurisdiction either to hear the appeal or to give leave for an extension of time, and in this connection I would refer to the cases of Ohene Moore v. Akesseh Tayee (2 W.A.C.A. 43) and Oranye v. Jibowu (13 W.A.C.A. 41) which are conclusive authority on this point.
In the course of argument reference was made to Rule 35 (now replaced by section 22 of the Federal Supreme Court Ordinance, 1960) and Rule 68 which relate respectively to the general powers of the court and to the power of waiver. In my view the first provision does not empower the court to disregard the express provisions of Rule 14 and Rule 68 does not apply to civil appeals. Reference was also made to section 31(4) of the Federal Supreme Court Ordinance, 1960, but that subsection, whatever its effect, cannot be invoked in this case in which all rights relating to appeal had expired before the Ordinance came into operation.
In view of my decision on this first objection it is unnecessary for me to consider the second preliminary objection, which is based upon an assumption that the appellant is the Ibadan District Council.
For the reasons mentioned in this Ruling I would direct that the proceedings be struck out with ten guineas costs.
Ademola C.J.F.:- I concur.
Bairamian, F.J.:- I concur.
Proceedings struck out.