Dopemu Taiwo Adeyeri & Ors V. Akinbode Okobi & Ors (1989)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.C.A. 

The plaintiffs/appellants/applicants brought this application pursuant to S.213 of the Constitution of the Federal Republic of Nigeria, 1979, as amended praying for:-

“(a) An order granting leave to the plaintiffs/applicants to appeal against the judgment of this Honourable Court delivered in this suit on the 18th day of July, 1988;

(b) an order deeming the Notice of Appeal filed in this suit on the 6th of October, 1988, as having been properly filed; and

(c) for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of the case.”

The application was dated 1st November, 1988 and filed on 3rd November, 1988. It is supported by an affidavit which has the notice and grounds of appeal attached to it as Exhibit “A” and a further affidavit with Exhibits “DTA.1” and “DTA.2” attached. The two exhibits are the judgment of this court to which leave to appeal to the Supreme Court is sought and the judgment of the court below.

The applicants filed their notice of appeal on 6th October, 1988 (within three months from the date of the decision). This application for leave to appeal to the Supreme Court having been filed on 3:11:88 is outside the statutory period (see S.25(2)(a) of the Court of Appeal Act, 1976).

Mr. Oke, learned counsel for the respondents, said that he was not opposing the application. At that stage the Court wanted to know from the learned counsel for the applicants the date when the judgment of this court was delivered and when the time to apply for leave to appeal began to run.

To these questions, Mr. Solarin for the applicants stated that the judgment was delivered on 18/7/88 and that the period allowed the applicants to appeal started to run from 1/9/88 because this court was on vacation from 15/7/88 to 31st August, 1988. He referred the court to Ss.213(3) and 227 of the Constitution of Nigeria, 1979 and S.8(2) of the Court of Appeal Act, 1976.

He further stated that the President of this court acting under S.227 of the Constitution and S.8(2) of the Court of Appeal Act issued a Practice Direction No.1 of 1988 (See Legal Notice No. 288 dated 1st July,1988 and contained at p.783 in the Federal Republic of Nigeria Official Gazette No. 46, Vol. 75 of 14th July, 1988) and that the said Practice Direction covered the application before the court. In other words, the application filed on 3/11/88 was within time. He again stated that the Practice Direction applies to appeals from this court to the Supreme Court.

The appeal is one not covered by S.213(2) of the Constitution and leave is therefore required. (See 213(3) of the Constitution). The application for leave to appeal must be made to this court within three months from the date of the judgment of this court (S.25(2)(a) of the Court of Appeal Act).

The Practice Direction No.1 of 1988 made by the President of this court provides:

“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.”

The learned counsel for the applicants therefore contended that the time for filing this application started to run from 1/9/88 which is the first working day after the vacation and the application filed on 3/11/88 was within time.