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ALHAJI A. ALLI AND OTHERS
V.
UNION TRADING COMPANY LIMITED
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OCTOBER, 1954
2PLR/1952/30 (WACA)
OTHER CITATION(S)
2PLR/1952/30 (WACA)
(1954) XIV WACA PP. 605 – 607
LEX (1954) – XIV WACA 605 – 607
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BEFORE THEIR LORDSHIPS:
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
STUART, J.
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BETWEEN:
1. ALHAJI A. ALLI
2. F. ALLI, AND
3. S. ALLI – Appellants
AND
UNION TRADING COMPANY LIMITED – Respondents
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REPRESENTATION:
A. N. Ferguson — for the Respondents, objecting.
N. Adekunle — for the Appellants, contra.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases – Appeals from Supreme Court decisions on appeal from Magistrates – Appeal by special leave – Time for appealing
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CASE SUMMARY
Preliminary objection by respondents: Appeal No: 39/1954.
Section 12 of the Magistrates’ Courts (Appeals) Ordinance (Cap. 123), provides that:-
“Any person aggrieved by a decision of the appeal Court (viz. the Supreme Court) in a civil case may appeal to the West African Court of Appeal in the same manner as if such appeal were from a decision of the Supreme Court in the exercise of its original jurisdiction and the provisions of the West African Court of Appeal Ordinance and the rules made under the provisions of the West African Court of Appeal Order in Council, 1948, relating to appeals in civil cases shall apply to any such appeal.” (As amended by Ordinance No 23 of 1952.)
Section 4 (1) of the West African Court of Appeal Ordinance (Cap. 229), provides that:-
“… where the Supreme Court has affirmed the decision of a Magistrate’s Court the appeal shall lie only by special leave of the Supreme Court.”
Rule 14 (1) and (2) of the West African Court of Appeal Rules, 1950, read:-
“(1) Subject to … no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision, unless the Court below or the Court (viz. of Appeal) shall enlarge the time.
“(2) The prescribed period for appeal shall be calculated from the date of the decision appealed against.
“Provided that where there is no appeal as of right the prescribed period shall be calculated from the date upon which special leave to appeal is granted.”
Shortly put, rule 1 of the Supreme Court (Civil Procedure) (Amendment No. 3) Rules of 1952 provides that an application for special leave shall be made within fourteen days from the date of the decision and shall be supported by grounds of appeal which prima facie show good cause for leave to be granted (text towards end of judgment infra).
The Supreme Court on appeal from the Magistrate affirmed his decision, and the appellants applied for special leave to appeal from the Supreme Court three months and one day after the date of the Supreme Court judgment. (They, it would seem, were given special leave and lodged their appeal.) When their appeal came up before the Court of Appeal, the respondents raised a preliminary objection on the ground that rule 1 of the 1952 Amendment No. 3 Supreme Court Rules had not been complied with, and on the ground that the appeal had not been brought within three months of the Supreme Court judgment. For the appellants it was argued that the prescribed period was to be calculated from the date on which special leave had been granted, in accordance with the proviso to rule 14 (2) of the West African Court of Appeal Rules, 1950.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (striking out the appeal):
The argument for the appellants meant that the appeal could be brought at any time. The preliminary objection was valid on all grounds and the appeal would be struck out.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
The respondents have filed a preliminary objection to the hearing of this appeal on three grounds under rule 21 (1). The third ground is that the appeal was not brought within three months of the decision appealed from.
It is conceded by the appellants’ counsel that the judgment of the Supreme Court is dated the 18th December, 1952, that that judgment affirmed the decision of the Magistrate’s Court and that application for special leave to appeal under section 4 (1) of the West African Court of Appeal Ordinance (Cap. 229) was not filed until the 19th March, 1953, i.e. one day after the three months had expired. But it is contended by learned counsel for the appellants that whereas by rule 14 (1) of the West African Court of Appeal Rules the prescribed period for an appeal against an interlocutory decision or a final decision of the Court below is calculated from the date of the decision appealed against, in the case of an appeal which may be brought by special leave only, as is the case here, the prescribed period is to be calculated, according to the proviso to rule 14 (2) supra, from the date upon which special leave to appeal is granted. He is driven to submit that there is no limit of time in which application for special leave to appeal to this Court may be made to the Supreme Court where it has affirmed the decision of a Magistrate’s Court.
It is, to my mind, a startling proposition that where a party has an appeal as of right to this Court from a decision of the Supreme Court the appeal shall not be brought after the expiration of three months from the judgment, but that in the case of a judgment from which an appeal can be taken only by special leave to be granted by the Supreme Court, the appeal may be lodged at any time.
Counsel for the appellants himself appeared somewhat startled at the full implications of this submission and he qualified it to mean that the appeal should be lodged within a reasonable time. His submission still leaves unexplained what is the prescribed period which, according to the proviso to rule 14 (2), shall be calculated from the date upon which special leave to appeal is granted. It cannot mean that in the case of a judgment requiring special leave to appeal, the date of the application, which according to the submission may be made at any time, is the determining factor and that the prescribed period, be it fourteen days or three months, is to be calculated from the date special leave is granted.
The short answer to the proposition is section 12 of the Magistrates’ Courts (Appeals) Ordinance (Cap. 123), which provides:
“Any person aggrieved by the decision of the appeal Court in a civil case may appeal to the West African Court of Appeal in the same manner as if such appeal were from a decision of the Supreme Court in the exercise of its original civil jurisdiction and the provisions of the West African Court of Appeal Ordinance and the rules made under the provisions of the West African Court of Appeal Order in Council, 1948, shall apply to any such appeal.”
By rule 1 (1) of the Supreme Court (Civil Procedure) (Amendment No. 3) Rules, 1952, made by the Chief Justice by virtue of section 56 of the Supreme Court Ordinance, it is provided:-
“Where an appeal lies from any order or decision of the Court only by leave or special leave of the Court or the Judge making the order or of the West African Court of Appeal any application to the Court or a Judge for leave to appeal shall be made within fourteen days from the date of the order or decision against which leave to appeal is sought.”
And rule 1 (2) provides that:-
“Application for such leave shall be by notice of motion and shall be supported by grounds of appeal which prima facie show good cause for leave to be granted.”
The appellant did not comply with this rule, therefore grounds 1 and 2 of the preliminary objection are u, substance as valid and forceful as ground 3 and this appeal must be struck out, and it is so ordered.
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DE COMARMOND, AG. C. J.
I concur.
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STUART, J.
I concur.
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Appeal struck out.
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