Alhaji Ahmadu V. Alhaji Salawu (1974)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

This application prays the Court for an order:

“(a) granting extension of time within which to appeal to the Supreme Court of Nigeria against the ruling of the High Court of Kwara State given at Ilorin by the Hon. Mr. Justice S. Kawu on the 6th of April, 1974;

(b) granting leave to appeal against the ruling of the high Court of Kwara State given at Ilorin on the 6th of April, 1974, by the Hon. Mr. Justice S. Kawu; and

(c) such further or other orders as this Honourable Court may deem fit to make.”

The ruling against which this application has been brought was the dismissal or striking out by the High Court of Kwara State of an application for extension of time within which to appeal and for leave to appeal against the said ruling to this Court which was given on July 3, 1974.

In a detailed affidavit exhibited to the motion, the applicant deposed that Exhibit A contained the judgment of the three judges of appeal of the High Court of Kwara State in which a retrial had been ordered. The retrial was duly held by an Upper Area Court and, contrary to the directive of the High Court that the evidence on which the lower court had based its decision should be disregarded for the purpose of the retrial, the Upper Area Court nevertheless gave judgment on April 21, 1971, (Ex. B) dismissing the plaintiff’s claim. Although the plaintiff had 30 days within which to appeal, he nevertheless failed to file his appeal by two weeks, that is to say, that instead of doing so by May 20,1971, he did file the application on June 4, 1971, but this was dismissed on December

16, 1971 (Ex. C).

It is the case of Mr. Ajose-Adeogun, counsel for the applicant, that the learned trial judge erred in law when he dismissed this last application to which was exhibited the proposed grounds of appeal against the judgment of the Upper Area Court to the effect that the said Court misconceived the earlier judgment of the superior court, namely the then High Court of the Northern States (Ex A), judgment of the Emir’s Court of 1960 which the Appeal Court had already ruled to be irrelevant and unhelpful to the plaintiff’s case. This raises a substantial point of law, namely, whether an inferior court (the Upper Area Court) could review and over-rule an earlier judgment of a superior court (the High Court) in its appellate jurisdiction. Learned counsel submitted that if the plaintiff’s applicant for an extension of time within which to appeal had been granted, his appeal would clearly have succeeded.

Nevertheless the High Court, as we have seen above, refused to grant leave to appeal. Counsel should thereafter have gone straight to the Supreme Court, but instead appealed against that decision refusing him leave to appeal. On December 14, 1973, a fresh application was, however, brought by a new counsel after the first counsel had abandoned the case, and this application was for an extension of time within which to appeal and for leave to appeal to the High Court of Kwara State. This was an attempt to regularise the position and correct the error of procedure of the first counsel. Learned counsel gave as his reasons for the delay in bringing the present motion the following factors:

“(i) That when the plaintiff’s application for leave was dismissed by Mr. Justice Adewuyi of the High Court of Kwara State on 16th December, 1971, the then Solicitor to the plaintiff erroneously appealed against the said decision to the Supreme Court of Nigeria in Appeal No. SC.297/1972.

(ii) That the aforesaid appeal to the Supreme Court of Nigeria was not heard until the 31st of October, 1972, when it was struck out as in Exhibit ‘D’ attached hereto.

(iii) That I was informed by the plaintiff/applicant’s Solicitor, Mr. A.L. Vigo, and I verily believe that at the hearing of his appeal by the Supreme Court the said Court struck out the said appeal on the ground that the procedure adopted was erroneous and accordingly advised the plaintiff to pursue his application in the proper Court at Ilorin.

(iv) That in view of the foregoing factors the plaintiff eventually decided to brief these chambers for further action and that his instructions to this effect were only received in these chambers sometime in September 1973.