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SANUSI MOSURO AND ANOTHER
V.
SALAMI AKINYELE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
7TH DAY OF NOVEMBER, 1950
2PLR/1950/20 (WACA)
OTHER CITATION(S)
2PLR/1950/20 (WACA)
(1950) XIII WACA PP. 112 – 113
LEX (1950) – XIII WACA 112 – 113
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, S.P.J.
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BETWEEN:
1. SANUSI MOSURO
2. AMUSA AYENI – Plaintiffs
AND
SALAMI AKINYELE – Defendant
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ORIGINATING COURT(S)
Application for leave to appeal from the Supreme Court, W.A.C.A. 3387/50
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REPRESENTATION
F. R. A. Williams — for Appellants
J. I. C. Taylor — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Supreme Court’s refusal of conditional leave to appeal – Motion to this Court for leave to appeal by virtue of section 9 of the West African Court of Appeal Ordinance (Cap. 229) – Recourse to this section only arises where an appeal is properly before the Court.
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CASE SUMMARY
The applicant having been refused conditional leave to appeal by the Supreme Court, moved this Court to entertain an appeal against the decision of the Supreme Court refusing leave to appeal. The applicant relied on section 9 of the West African Court of Appeal Ordinance (Cap. 229), which confers certain discretionary powers on the Court of Appeal to entertain an appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (refusing the Application) that:
1. Section 9 of the West African Court of Appeal Ordinance can only be invoked where there is an appeal properly before this Court.
2. The Court must be satisfied there has been a strict compliance with the statutory requirements which govern the existence of an appeal before section 9 can be applied. There was no appeal before this Court and the application was refused.
Cases referred to:
(1) L.E.D.B. v. Chief Oloto, W.A.C.A. (Nigeria), January-May, 1950, 90
(2) Kudiabor v. Kudanu, 6 W.A.C.A. 14
(3) Kofi & Others v. Twum, 4 W.A.C.A. 187
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MAIN JUDGMENT
The following Judgment was delivered:
LEWEY, J.A.
This application relates only to a question as to the procedure which can be followed, in certain circumstances, in order to bring an appeal before this Court: it is not concerned-nor are we-with the merits of the case of either of the parties to the original action, as to which we have no knowledge. What is before us is a motion by the plaintiffs asking this Court, by virtue of its powers under section 9 of the West African Court of Appeal Ordinance (Cap. 229), to entertain an appeal against a decision of Rhodes, J .. on the25th September of this year, the learned Judge having subsequently refused to grant the plaintiffs conditional leave to appeal. The sole question for decision is whether, in such circumstances, the powers under section 9 can properly be invoked having regard to the authorities governing the application of those powers, more particularly the decision of this Court in L.E.D.B. v. Chief Oloto (1) which affirmed and followed the judgment in Kudiabor v. Kudanu (2) an: overruled Kofi & Others v. Twum (3).
The principle which emerges from those decisions, is, I think, quite clear namely that before effect can be given to the provisions of section 9 of the Ordinance, there must be an appeal properly before this Court, and that it is only in respect to such an appeal so before us that recourse can be had to the section. That is, really another way of saying that, as an appeal is a creature of statute, this Court must first be satisfied that there has been a strict compliance with the statutory requirements which govern the very existence of an appeal. Of those requirements there can be none more fundamental than the necessity for obtaining, in the prescribed manner, leave to appeal to this Court. But that is the very thing which has not been done in the present case, and for that reason-whatever may have been the attendant circumstances-I find it impossible to say that there is an appeal before this Court. It follows that, in my view, there can be no question of invoking the provisions of section 9 in respect to something which the plaintiffs refer to as an ” appeal ” but which, in law, has no existence as such.
Mr Williams, for the plaintiffs, has submitted that his clients had a right of appeal, and that their appeal must therefore be taken to have come into being so soon as they applied to the Court below for leave and irrespective of whether or not leave was, in fact, granted. I am quite unable to accept such a contention, having regard to the detailed and precise statutory provisions which have to be satisfied before an appeal can come before this Court.
It may be said that such a result must work a hardship for the applicants in this case. But this Court-like all Courts–is bound by the law; we have no power to dispense with the law, nor can we accede to what must amount to requests to extend its provisions to meet particular cases. I am far from saying that there can be no relief available for parties who conceive that they have been prevented at the outset from proceeding with an appeal which lies as of right. It might, for example, be possible-by virtue of rule 36 of the West African Court of Appeal Rules–to have recourse, in an extreme case, to Order LIII, rule 8, of the old Supreme Court Rules which read:-
“8. In every final judgment the appeal Court may give leave to appeal on such terms as that Court thinks just.”
I should perhaps observe, however, that I do not think that, in this case, the applicants would have been likely to have succeeded, had they decided to follow such a course.
Whatever the applicants proper remedy may be in the circumstances I am myself, as I have already indicated, very strongly of opinion that it is not an application to this Court under section 9 of Cap. 229 to entertain an appeal.
It seems to me, therefore, that this motion cannot succeed, and must be refused.
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JOHN VERITY, C.J. (NIGERIA)
I concur.
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M. DE COMARMOND, S.P.J.
I also concur.
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Application refused.
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