Division: High Court of Lagos

Date of Judgment: 10th April, 1961

Case Number: APPEAL No. LD/3A/61

Before: De Lestang, C. J.

Appeal from magistrate's court.

The appellant appealed from on Order of the magistrate's court. The record on appeal showed that he had not made the requisite deposit for the preparation of copies of the proceedings until four days after the stipulated time. The respondent raised a preliminary objection, contending that the appeal should be struck out because of failure to make the deposit within the required time.

Appellant contended that the entry in the record on appeal was not conclusive as to the date of the making of the deposit.

HELD:

(1)     In the absence of evidence to the contrary the date of the receipt must be assumed to be the date of payment and the court is bound to rely upon the entry in the record.

(2)     Since the deposit was made out of time, the court must on a preliminary objection, strike out the appeal.

Appeal struck out.

Rules referred to:-

High Court of Lagos (Appeals) Rules, Order III, rule 8.

APPEAL from the magistrate's court.

Impey for the Appellant.

Murray (with him Lardner) for the Respondent.

De Lestang, C.J.:-This is an appeal against an order of the magistrate's court. The respondent has raised a preliminary objection to the appeal. It is that the appeal is not properly before the court because it appears from the Registrar's statement at 1 of the record that the deposit for the preparation of copies of proceedings was made on the 21st January, 1961, i.e. four days out of time. The High Court Appeal Rules require the deposit to be made within thirty days of the decision appealed against and Order III, rule 8 prohibits the acceptance by the Registrar of the deposit after the period has elapsed without an order of the Appeal Court. The relevant portion of the statement reads:-

Amount deposited vide CR. No. 731312 of 21st January, 1961         £6-0s-0d.

The respondent contents that this entry is not conclusive of the date of the making of the deposit.

In the absence of any evidence to the contrary the date of the receipt must be assumed to be the date of the payment, and, relying on the record, as indeed I must, I am constrained to hold that the deposit was made out of time. The preliminary objection accordingly succeeds. The appeal is struck out with costs assessed at £5-5s-0d.

Appeal struck out.