Alhaji Ahmadu V. Alhaji Salawu (1974)

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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.

(v) That considering the distance of the proper avenue, that is, High Court Ilorin, from these chambers, it was decided to transfer the plaintiff’s brief to other Solicitors (Messrs. Vigo & Company in Kaduna) for necessary action..

(vi) That unfottunately the said Solicitors were unable to assist the plaintiff/applicant further after their aforementioned appearance in the Supreme Court and consequently referred the plaintiff to the Registrar of the High Court in Ilorin as per their letter dated 6th November, 1973, a photocopy of Which is attached herewith and marked Exhibit ‘E’.

(vii) That in spite of the letter (Exhibit ‘E’) referred to above, the plaintiff was still unable to receive assistance because the Registrar of the Court to whom he was directed simply returned Exhibit ‘E’ and all the relevant papers to the plaintiff/applicant, who consequently returned to these chambers at the beginning of December 1973.

(viii) That I verily believe that the delay so far caused in bringing the said application was not in any way attributed to the plaintiff himself but rather to the complicated nature of the previous actions already taken in this matter by his previous Solicitors.

(ix) That I was informed by the plaintiff and I verily believe that he had at all times since the commencement of his case been anxious and willing to pursue his remedy and that he had done all he could within his limited understanding and in spite of his lack of knowledge of court procedure to pursue same. ”

Again, this application was struck out on April, 6 1974, by Kawu, J., in the High Court of Kwara State (Ex. D). A motion was brought on April 25, 1974, before the High Court of Kwara State for extension of time within which to appeal and for leave to appeal against the ruling of April 6, 1974. to the Supreme Court, which heard and dismissed it on July 3, 1974. There had been difficulty in obtaining a certified true copy of the ruling. which was only secured on July 24, 1974, when it was forwarded to the Supreme Court and exhibited to the applicant’s Further Affidavit The following grounds of appeal are also filed in support of the present application:

“1. That on the 19th of July, 1974. an application was filed on behalf of the plaintiff/applicant in the above matter praying this Honourable 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. .

2. That the said application was supported by an Affidavit sworn to by me on the aforesaid date.
3. That in the aforesaid Affidavit, particularly in paragraphs 21-25 thereofe, I deposed to the facts that an application before the High Court of Justice of the Kwara State for extension of time within which to appeal and for leave to appeal against the ruling of the said Court to this Honourable Court was dismissed or struck out on the 3rd of July, 1974 but that the certified true copy of the said ruling was not available at the time the affidavit was sworn to.
4. That in furtherance to the undertaking contained in paragraph 25 of my earlier affidavit, I now attach hereto a true copy of the aforesaid ruling given on the 3rd July, 1974 and which copy is marked Exhibit E”

Mr. Akintoye, learned counsel for the respondent, submitted that the application for an extension of time should not be granted because it is brought more than 15 days after the refusal of the similar application by the High Court and that to grant it would be contrary to section 31(3) and (4) of the Supreme Court Act, 1960. Section 31(2), (3) and (4) reads as follows:

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:

(a) in any appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a fmal decision;

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days from the date of the hearing of the application by the court below, to make an application to the Supreme Court.

(4) The Supreme Court may extend the periods prescribed in subsection (2) except in the case of a conviction involving sentence of death.

Learned counsel contended that the present application does not come within the scope of the exceptional cases where the Supreme Court could exercise a discretion to grant the extension of time being sought. We are unable to accept this argument in the circumstances of this case.

We think that this application should be granted because (a) a point of real legal importance is raised by this appeal as to whether an inferior court (i.e., the Upper Area Court) can reverse or modify an earlier and subsisting decision of a superior court (i.e., the High Court of Kwara State); (b) delay caused by counsel bringing the wrong action in the wrong court which delay resulted in the applicant running out of time in prosecuting his proper appeal should not be ascribed to the applicant’s default; and (c) the subject-matter of the action is substantial enough to dispose the court not to allow mere procedural irregularities to preclude an opportunity to scrutinise the case and determine it on the merits.

The application is accordingly granted as prayed. That is to say, we hereby make 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 Dorin by the Hon. Mr. Justice S. Kawu on the 6th of April, 1974 and

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

Costs assessed at N10 are awarded to the applicant against the respondent.

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Other Citation: (1974) LCN/1856(SC)