Victor Yiborku V The Republic (1968) LLJR-SC

Victor Yiborku V The Republic (1968)

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MADARIKAN, J.S.C.

In charge No. 530/67 the appellant stood trial in the Chief Magistrate’s Court Lagos on charges of various offences of fraudulent false accounting and stealing, and on the 23rd February, 1967 he was discharged and acquitted on all counts. Thereafter the State filed a motion (No. M/152/67) in the Lagos High Court on the 4th September 1967; seeking extension of time within which to appeal against the judgment of the learned Chief Magistrate.The facts relied upon were:-

(1) On the 25th February, 1967, Mr. A. Akinsanya, a solicitor, applied for a copy of the record of proceedings and judgment in charge No. 530/67 and it was supplied to him on the 13th May, 1967.

(2) After perusing the record, he decided to apply for a copy of exhibit ‘F’ ten-dared In the criminal case and on the 18th May, 1967, he applied for it and it was supplied to him on the 2nd June, 1967.

(3) He addressed a petition to the Director of Public Prosecutions on the 5th June, 1967 and it was then that the matter was first brought to the notice of the Director of Public Prosecutions at whose instance the motion referred to earlier was filed on the 4th September, 1967, seeking extension of time within which to appeal.

After hearing arguments on the motion, Caxton-Martins J. decided as follows on the 6th November, 1967:-

There is avoidable delay in bringing this application for enlargement of time. Most reluctantly I will grant the application and allow 7 days to the appellant to comply with the requirement of the Law.”

The appellant has appealed against that decision and his grounds of appeal were:-

“1. That the learned trial judge erred in law when having found the respondent guilty of culpable delay granted the respondent extension of time within which to appeal.

2. That the learned trial judge erred in law when the learned trial judge in granting the application disregarded all the established principles of law applicable to such application.

3. That the learned trial judge erred in law when due consideration to the liberty of the applicant (sic) the learned trial judge granted the respondent ex-tension of time to appeal more than eight whole months after the applicant has been acquitted”

These grounds of appeal were argued together by Mr. Sasegbon who after reviewing the facts submitted that the principles on which an application for extension of time within which to appeal could be granted were that the applicant must:-

(1) advance strong reasons to justify the court in extending the time, and

(2) show that his appeal is likely to succeed.

He contended that as the applicant in this case was the prosecutor he could appeal only on the grounds that the judgment was erroneous in law or that the proceedings were in excess of the jurisdiction of the Chief Magistrate. He then referred us to R. v. Lesser 27 Cr. App R. 69 where Hilbery J. at page 71 said:-

“There appears to be a danger of the rules which govern the proceedings of this court being regarded as of no importance. The court has listened to repeated applications for extension of time for leave to appeal, which have been put forward as If the granting of such an application were a mere matter of form. While the court is always willing to listen to such an application on the ground that the applicant did not understand what the points in issue were, or that he could not read or write, or on some ground of that kind relating to the particular case, it should be clearly understood that a person who has failed to appeal within the ten days allowed by statute has lost his right of appeal.”

Mr. Sasegbon also referred us to the following observations of Hurley S.P.J. (as he then was) in  (1959) N.R.N.L.R. 93 at page 95:

“We wish to take this opportunity of observing that, as a general rule, whatever may be appellant’s reasons for not having filed his ground of appeal in time, one reason which the court would find it difficult to accept is that he has been unable to obtain a copy of the proceedings and judgment.” and contended that in the present case the judge having come to the conclusion that there was avoidable delay in applying for extension of time, he did not exercise his discretion judiciously by granting the application.

In reply, Mr. Ayorinde submitted that the Director of Public Prosecutions first became aware of this matter when he received Mr. Akinsanya’s petition dated 5th June, 1967, and that the delay in applying to the court for extension of time was adequately explained in paragraph 7 of the further affidavit sworn to by a State Counsel on the 20th October, 1967. It reads:-

“That since the receipt of the petition dated 5th day of June, 1967 from Mr. Adeyiga Akinsanya I have written to the police calling for the case file in this matter and that up till now I have not received a single reply to all my letters.”

As stated earlier, the appellant was acquitted on the 23rd February, 1967. The prosecutor did not exercise his right of appeal to the High Court against the order of acquittal within the prescribed period of 30 days but an application for extension of time within which to appeal was filed in the High Court on the 4th September, 1967, i.e. some 165 days after the date of judgment. It must be clearly understood that extension of time within which to appeal is not granted as a matter of course. The applicant must advance substantial reasons to explain the delay in entering an appeal within the prescribed period and to justify the court in granting extension of time. We consider that on the facts before him, the judge was fully justified in coming to the conclusion that “there is avoidable delay in bringing this application for enlargement of time.” But having come to that conclusion, he ought to have dismissed the application as, in our view, it was devoid of merits.

For the foregoing reasons, we allow this appeal, and we hereby set aside the order of Caxton-Martins J. made in suit No. M/152/67 on the 6th November,1967 including the order for costs. It is also ordered that the application for extension of time be and is hereby dismissed.

Having set aside the order for costs it is unnecessary for us to deal with the cross-appeal by the State against the award of 15 guineas costs against the State. The cross-appeal is therefore struck out.


Other Citation: (1968) LCN/1576(SC)

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