IN THE SUPREME COURT OP SIERRA LEONE

S.C CIV. APP. NO. 3/88

CORAM:

The Honourable Mr. Justice S.M.F. Kutubu, C.J.           - Presiding

The Honourable Mr. Justice CA, Harding                         - J.S.C

The Honourable Mrs Justice A.V.A. Awunor-Renner         - J.S.C

The Honourable Mr. Justice S.C.E. Warne                         - J.S.C

The Honourable Mr. Justice E.C. Thompson-Davis           - J.S.C

BETWEEN:

NIGERIAN NATIONAL SHIPPING LINES LTD, - APPELLANT

VS.

ABDULA AHMED (TRADING AS ABDUL AZIZ

ENTERPRISES) - RESPONDENT

GARVAS J. BETTS ESQ. with him Miss Yasmin Jusu Sheriff for Appellants A.J. Bishop Gooding Esq., for Respondent.

JUDGMENT DELIVERED THIS 17TH DAY OF FEBRUARY, 1989 CA. HARDING J.S.C - This Appeal arose out of the refusal by the Court of Appeal to entertain an Application for leave to appeal against a. decision of the High Court given in an interlocutory matter. The Court of Appeal declined to hear the application on the ground that it lacked Jurisdiction being that the application was made out of time.

The Brief History of the Case is as follows:-

1. On 18th February, 1986 the Respondent herein, as Plaintiff in the High Court, obtained an interlocutory judgment in Default of Appearance against the Appellants herein, the Defendants in the High Court. 2. On 29th May,1986, the Appellants filed a Notice of Motion in the High Court seeking to set aside the Judgment in Default and to defend the Action*, 3. On 16th June, 1986 the High Court gave a Ruling dismissing the Application. 4. On 21st June,1986, the Appellants applied to the High Court for leave to appeal to the Court of Appeal against the decision of the High Court dated 16th June,1986 5. On 11th July, 1986 the application for leave to appeal was refused.

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6. On 23rd July,1986, consequent upon the refusal aforesaid the Appellants applied to the Court of Appeal for leave to appeal,,

7. On 1st November,1986 the Court of Appeal dismissed the application on a preliminary objection and held that it had no jurisdiction to hear the application.

8. Thereafter, on application made to this Court, Special Leave to Appeal against the decision of the Court of Appeal was granted to the Appellants on 18th February, 1988,

Four grounds of Appeal were filed before this Court by the Appellant. The first two in essence complained of misconstruction of the provisions of Rules 10 (1), 10 (4) and 64 of the Court of Appeal Rules, Public Notice No.29 of 1985, by the Court of Appeal when it held that "the application before this Court was dated 23rdi July,1986, it is for leave to appeal against the decision of the High Court delivered on the 18th June,1986. Clearly, such an application is out of time in that it was made some 36 days after the date on which the decision of the High Court was delivered."

The third ground - in my view, notwarranting much consideration for the purposes of this appeal - complained of misdirection in law by the Court of Appeal when it held an Affidavit in opposition which was filed could not act as a waiver in that such step was "a fresh step".

The fourth ground was abandoned.

The issue briefly before this Court is under what circumstances if any at all, can the Court of Appeal entertain an application for leave to appeal if the application is made after 14 days from the date of the decision against which leave to appeal is sought.

Rule 10 (1) of the. Court of Appeal Rules, Public Notice No.29 of 1985 States:-

"10 (1) Where an appeal lies by leave only, any person desiring to appeal shall apply to the Court below or to the Court by Notice of Motion within fourteen days from the date of the decision against which leave to appeal is sought unless the Court below or the Court enlarges time."

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There is no ambiguity about the words used in this provision. It means simply that an Applicant can make his application either to the Court below, i.e. the High Court, or to the Court of Appeal within fourteen days from the date of the decision against which leave is sought unless that period is enlarged either by the Court below or by the Court of Appeal.

Rule 10 (4) prescribes:-

"10 (4) No application for the enlargement of time within which to apply for leave to Appeal shall be made after the expiration of fourteen days from the expiration of the time prescribed within which an application for leave to appeal may be made."

Again, there is no ambiguity about the words used here. This provision deals about applications for enlargement of time -as distinct from applications for leave to appeal. It makes it mandatory for an Applicant who is seeking an enlargement of time within which to apply for leave to Appeal to do so within twenty-eight days from the date of the decision against which leave to appeal is sought. In my view, this provision only applies when no application whatever has been made for leave to appeal within fourteen days either to the Court below or to the Court of Appeal.

However, Rule 64 of the Court of Appeal Rules referred to above makes it obligatory for an Applicant to first make his application to the Court below and where that Court refuses the application, he shall then proceed to have the application determined by the Court of Appeal.

The provision is as follows:-"64. Except where otherwise provided in these

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Rules or by any other enactment, where any application may be made either to the Court below or to the Court, it shall be made in the first instance to the Court below, but if the Court below refuses the application, the Applicant shall be entitled to have the application determined by the Court."

Here as well the provisions are quite clear - application must first be made to the Court below and it is only after that Court has refused the application that the Applicant can renew the application in the Court of Appeal. In other words the right to have the application determined by the Court of Appeal only accrues after there has been a refusal by the Court of Appeal. It cannot be otherwise because if the Court below grants the application there will be no need to go th the Court of Appeal.

Counsel for the Appellants submitted that when once an Application has been made to the High Court within fourteen days there is no further obligation on the Applicant's part to seek enlargement of time. The Applicant can always make a further application to the Court of Appeal provided he does so within reasonable time.

Counsel for the Respondents on the other hand has strenuously argued that time in any event commences to run from the date of the decision against which leave to Appeal is sought and that any prudent Solicitor, notwithstanding the fact that he has already applied to the Court below within time, should proceed to make an Application for an enlargement of time if he apprehends that fourteen days would have elapsed before a Ruling

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is made as to whether or not leave is granted. I must say that attractive though this argument may sound, I find it untenable for the mere fact that Rule 64 makes it obligatory to go first to the Court below and it is only when that Court has refused leave that the Applicant "shall be entitled to have the application determined by the Court of Appeal."

By way of comparison I would refer to Rule 7 of the Supreme Court Rules which provides that "Application for leave to Appeal must first be made to the Court of Appeal, but if leave is refus by that Court an Application may be made for Special Leave to Appeal to the Supreme Court by Notice of Motion in that behalf filed by the intending Appellant."

Rule 10 of the same Rules provide that -"An Application for Special Leave shall be filed within one month of the date of the Judgment from which leave to Appeal is sought or of the date on which leave to Appeal to the Supreme Court is refused by the Court of Appeal."

These Rules, like those of the Court of Appeal, contemplate that an application for leave must first be made to the Court of Appeal (within one month in this instance from the date of the Judgment, decision or order to be appealed from - vide Rule 69 of the Court of Appeal Rules) and it is only after leave has beer refused by that Court that application for Special Leave may be made to the Supreme Court, again within one month of the date of refusal.

The Court of Appeal Rules did not specify any time limit as to when the Applicant shall be entitled to have his application determined by the Court of Appeal after a refusal by the High Court. In my view, a reasonable time will suffice and in this connection what is a reasonable time will depend on the

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circumstances of the particular case. In the instant case, I do not think eleven days after the Court below has refused the application an unreasonable time.

Earlier on, I did refer to the third grounds of appeal; I must say that I find no merit in that ground.

For the reasons I have stated above, I would allow the Appeal, order a reversal of the Order of the Court of Appeal and remit the Application for leave to appeal to the Court of Appeal for hearing and determination by that Court. Costs to the Appellant.

C.A.HARDING JUSTICE OF THE SUPREME COURT.