Owoniboys Technical Services Ltd. Vs John Holt Limited (1991)

LawGlobal-Hub Lead Judgment Report

U. OMO, JSC. 

Set out hereafter are my reasons for allowing this appeal with N500 costs to the appellant when it was argued on 11/6/91. There is really only one issue for determination in this appeal, to wit, whether the Court of Appeal properly complied with the provisions of section 31(2) of the Supreme Court Act 1960 by granting leave to the respondent to appeal against its decision to the Supreme Court, when the statutory period therein provided for so appealing i.e. 90 days, had expired.

The admitted facts are that the Court of Appeal delivered its judgment sought to be appealed against on 7/7/88. On 5/8/88 the respondent filed an application for leave to appeal to the Supreme Court because the grounds of appeal filed were of mixed law and facts. On 13/10/88, 3 months and six days after, this application was granted.

It is trite law that both the leave to appeal and the notice of appeal itself must be filed within the 3 months prescribed by section 31(2) of the Supreme Court Act vide Bowaje v Adediwura (1976) 6 S.C. (Reprint)95; (1976) 6 S.C.143 at 146; Lamai v Orbih (1980) 5-7 S.C.(Reprint)20;(1980) 5-7 S.C.28; Chief Kafaru Oje v. Chief Ganiyu Babalola (1987) 4 N.W.L.R. (part 64) 208 (214). Leave to appeal was therefore granted after the expiry of the time for appealing. The Court of Appeal has no power to extend time within which to appeal to the Supreme Court, and no such application in any event was before it. In its brief the respondent sought to rely on the provisions of the Practice Direction No. 1988 issued by the President of the Court of Appeal as justifying the grant of leave outside the 3 months period. The relevant portion of this Practice Direction states that:-

“1. For the purpose of giving effect to the provisions of the Court of Appeal Rules in respect of any period within which any application for leave to appeal or for filing appellant’s or respondent’s brief or reply brief the period declared for the vacation of the court shall not be taken into account for the computation of such period allowed by the Rules of Court. 2.  For the avoidance of doubt the period between the 15th day of July, 1988 to the 31st day of August, 1988 is hereby declared as vacation period.” (Italics mine) Nothing therein empowers the Court of Appeal to extend time within which to appeal to the Supreme Court. The Practice Direction must apply to the powers which the Court of Appeal can exercise, to wit, in respect of computation of time for appeals from the High Court to the Court of Appeal, and compliance with its orders on other matters within its jurisdiction.

It cannot conceivably apply to statutory provisions governing time within which to appeal to the Supreme Court.   The Court of Appeal has itself so decided in Dopemu Adeyeri & Ors. v Akinbode Okobi & Ors., when it held as to the purpose of the aforesaid Practice Direction, that it is meant : “1. ……to give effect to the provisions of the Rules of the Court of Appeal by excluding the period of vacation of the court from computation of the period within which any application for leave to appeal to the Court of Appeal from the decisions of the High Court or for filing of briefs of arguments in respects of appeal pending in the Court of Appeal may be brought.” and as to its scope that “2. if the Practice Direction No. 1 of 1988 is construed to extend to applications for leave to appeal to the Supreme Court, it means that the President of the Court of Appeal made a rule regulating the practice and procedure of the Supreme Court which is not the case. The practice Direction therefore applied to all applications for leave to appeal to the Court of Appeal from the decisions of the court below and filing of appellant’s brief or reply brief and not to applications for leave to appeal from the Court of Appeal to the Supreme Court.”  

I agree with this decision. In argument before us however respondent’s counsel conceded that the Court of Appeal had no power to grant leave outside the 3 months period. The concession in effect means that the appeal succeeds.   Respondent’s counsel then proceeded to argue that the respondent still has a pending appeal because an earlier notice of appeal filed by it on 4/8/89 contained grounds of law only, and therefore the leave to appeal granted by the Court of Appeal is superfluous. It is enough to say that there is no substance in this submission which does not detract from the merit of the appellant’s complaint. If the respondent still has an appeal pending to this court he can take necessary steps to pursue it hereafter

A.G.KARIBI-WHYTE, JSC. After argument on the 11th June, 1991 I allowed this appeal, and indicated that I will give my reasons for doing so today. I have read the reasons in the judgment of my learned brother, Uche Omo JSC. for allowing this appeal. I am in complete agreement. As it is unnecessary and tedious to repeat the reasons so lucidly stated in the judgment of my learned brother Uche Omo, JSC. I adopt them.

S. KAWU, JSC. We dismissed this appeal summarily on 11/6/91 after we had heard arguments of counsel and indicated that reasons for our decision would be given today. I have had an advantage of reading, in draft, the lead Reasons for Judgment just delivered by my learned brother, Uche Omo JSC. I entirely agree with his reasons for dismissing the appeal.

The judgment of the Court of Appeal sought to be appealed against was delivered on 7/7/88 and the respondent on 5/8/88 filed an application for leave to appeal to Supreme Court on grounds of mixed law and facts. The applications was granted on 13/10/88 -that is about 3 months and six days after the decision of the Court of Appeal.   It is settled that in order to comply with the provisions of S.31(2) of the Supreme Court Act, 1960, an application for leave to appeal the notice of appeal must both be filed within 30 days see – Bowaje v Adediwura (1976) 6 S.C.(Reprint) 95; (1976)6 s.c. 143. It is patently clear that in this case, leave to appeal was granted outside the statutory period of 30 days and the purported appeal was therefore incompetent.

S.M.A. BELGORE, JSC. Once the time to appeal against its decision has elapsed it would be ultra of Court of Appeal to grant leave to appeal. Leave to extend time within which to appeal and leave to appeal will then be within the competence of Supreme Court only in such circumstances. It was for the above reasons and fuller reasons given by my learned brother, Omo, JSC., that I allowed this appeal on 11th day of June, 1991 and awarded N500.00 as costs against the respondents.

P.K. NWOKEDI, JSC. On 11th June, 1991, this appeal was heard by this court and was allowed, but it was indicated that the reasons for allowing the appeal would be given today. I hereby give my reasons for allowing the appeal.    This is an appeal against the decision of the Court of Appeal in an interlocutory application made before it in the matter of this appeal.

The present appellants were plaintiffs in the suit in the High Court of Kwara State, Ilorin, where they obtained judgment. The present respondents who were defendants in the High Court appealed to the Court of Appeal. The Court of Appeal in its judgment dated 7th July, 1988, found for the present respondent in some aspects of the claim and dismissed the appeal on other aspects. The present respondents (also appellants in the Court of Appeal) filed a notice of appeal on 4th August, 1988.

This notice contained four grounds of appeal. It is not necessary to outline them in this Ruling.   On 5th of August, 1988, the respondents herein, as appellants in the Court of Appeal, filed an applications by a motion seeking the following reliefs: ‘1. Leave to appeal from the decision of this Honourable Court given in this matter on the 7th day of July 1988. 2. An order for stay of execution of the judgment of this Honourable Court pending the applicant’s appeal to the Supreme Court. 3.  Such further or other orders as this Honourable Court may deem fit to make.”   On 13th October, 1988 the Court of Appeal granted the said application as follows: