IN THE SUPREME COURT OF SIERRA LEONE

S C CIV App. NO 3/88

BETWEEN :- NIGERIAN NATIONAL SHIPPING LINES Ltd

                                                                                           -APPELLANTS

AND

ABDUL AHMED (TRADING AS ABDUL AZIZ

                                          ENTERPRISES)

                                                                                    -RESPONDENT

JUDGMENT: WARNE J.S.C.

Delivered this 17th day of February 1989 This is an appeal against the Ruling and order of the Court of Appeal delivered on 18th November .1986. The application before the Court of Appeal was made pursuant to Rule 10(1) and Rule 64 of the Court of Appeal Rules Public Notice No 29 of 1985.

Counsel for the Respondent made a preliminary objection to the application on the ground that the Court had no jurisdiction because of efflux ion of time within which the application should be made

Rule 10(1) states: "Where 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 the time.

From the foregoing, it is at once clear that the application could be made either to the Court below or the Court. Both Courts therefore, have concurrent jurisdiction. In the rule , the time within which the applicant for leave is to be made is fourteen days from the date of the decision against which leave to appeal

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is sought.

I must first of all determine and ascertain the date of the said decision. It is clear that the decision was made on the 16 June ,1986 by Adophy J ( as he then was). Appellants being dissatisfied with the decision of Adeptly J. sought leave of the High Court for several orders including an order for leave to appeal. This was by motion filed on the 21st June 1986.

I am satisfied this motion was filed five days form the date of the decision .The motion was duly heard and Adophy J refuged  the application on the 11th July .1986 In my view when Adophy J refused the application on the 11th July 1986, the duty of the High Court was fusts official The appellants were then entitled to make a fresh application to the Court of Appeal for leave to appeal against the decision given on the 16th June .1986.(vide Rule 10(1) ) However . the application could not be made before the refusal of the application by the Court below . ride Rule 64.

Rule 64 States.

"Except where otherwise provided in these rules or by any other enactment ,where an applications 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 applicant , the applicant shall be entitled to have the application determined by the Court."

Rule Le 4 m a xxxxx rule In the rule no time is stipulate within which the applicant is entitled to make the application to have it determined by the Court. In my view, this is deliberate, because if the application is not made within fourteen days of the decision in the Court below the applicant can apply to the Court below or to the Court

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enlargement of time vide Rule 10(1) and Rule 10(4) "No applicant for enlargement of time within which to apply for leave to appeal shall be made after the expiration of fourteen days form the expiration of the time prescribe within which an application for leave to appeal may be made ."

Rule 10 (1) stipulate " Fourteen days".

Counsel for Appellants has urgend on the Court that when once the application is made within time to the High Court, he has no further obligation to make a further application to the Court of before the Court is for leave to appeal against the decision made in the High Court : in the instant case, it was made on the 16th June. 1986.

Time starts to run from the date of the decision given in the High Court. The time for making the Application to the High Court and the Court of Appeal runs together.

When as in Rule 10 (1) fourteen days have expired, under Rule 10 (4) the Applicant has another fourteen days within which to apply for enlargement of time. On the face of Rule 10 (1) and Rule 10 (4) it would appear that the applicant had been barred from making a fresh application to the Court as he was entitled under

Rule 64. In my view, that cannot be the intendment of the Legislature The Appellants were not time barred from applying for an enlargement of time within which to apply for leave to appeal .

The High Court having refused the application for leave to appeal on the 11th of July 1986, the Appellants were entitled to make a fresh application to the Court of Appeal. This they did by filing a motion dated 23rd day of July ,1986. This was clearly out of time from the date of the decision given on 16th June ,1986.

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In my opinion , it was obligatory on the Appellant to apply to the Court of Appeal for enlargement of time within which to have the motion filed on 23rd day of July , 1986 being heard- vide Rule 10(1)Rule 10 (4) On a construction of Rule 10(1) Rule 10 (4) and Rule 64, the application for an enlargement of time could have been made to the Court of Appeal at the same time when the application for leave to Appeal was sought . In my view , the Appellants were time barred and unless the application for enlargement was made the Court could not grant that indulgence. Vide Bradshaw C Wariew 32 CH. D (1886) 403 In that case it was decided that the application for an enlargement of time within which to seek leave to appeal and that for leave to appeal could be made simultaneously.

In that case , the Court of Appeal had to construct Order XXX111 Rule 21 of the Rule of Palatine court of Lancaster. Rule 21 is as follows."Any verdict or judgement obtained where one party does not appear at the trail may be not aside by the Court or Visa Chanceller upon such term as may seem fit, upon as application made within six days after the time , or at the next sitting of the Court."

The Court also considered an construed Order LI Rule 5. of the said rule which is as follows:

"The Court or Vice Chancellor shall have power to enlarge or abridge the time appointed by these rule for doing any not or taking any proceeding upon such terms, if any , as the justice of the case may require: and any much enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

The fasts of the case are as follows:

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"The notion was brought for the recovery of a sum of money and same on for trail at Manchester on the 24th of March ,1986. The Defendant not appearing, judgment was given for the Plaintiffs with cost .The sitting of Palatine Court continued through March and April, and the Court sat for hearing motions on the 25th of March and the 5th, 12th, and of April. On the 8th of April the Defendant gave notice of motion for the 12th of April to not aside the judgment as irregular and that the action may be restored to the paper for trail at the next sittings, which would be held at Liverpool.

The motion was heard on the 19th of April , when the Vice Chancellor refused the application on the ground  that it was to late . The Defendant asked for an extension of time , but the Vice Chancellor was of the opinion to be made by a separate motion , and gave the Defendant short notice of such application .

The defendant ,however, did not give any notice , but appealed from the order of the 18th of April. At the same time he applied to the Court of Appeal for any extension of time for making the application to set aside the judgement On the 24th of March , when the action came on ,Counsel for the Defendant said he had received a telegram from his client instructing him to ask for a postponement of the trail and upon the Vice-Chancellor refusing to accede to the application , the Counsel said he had no instruction to appear for the Defendant at the trail. Judgment was accordingly pronounced again the Defendant in his absence. No step was taken by the Defendant till the 8th of April , when he moved to set said the judgment as before Stated"

"Held According to the true construction of Order XXX111 Rule 21 of the Rule of the Palatine Court of Lancaster a party against whom judgment has been given by default must made application to set it aside within six days if

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the Court be then sitting. and if it be not then sitting on the next day wish the Court shall be sitting to hear such motions. As application for extension of time by a party when desires is apply to set aside a judgement made against him by default ,may be made at the same time when he make the application to set aside the judgment , if the action is still pending"

I agree with the rathe decided in the above mention case.

According to the true construction of Rule 10(1) of the Rule of the Court of Appeal, time start to run from the date of the decision against which leave to appeal is ought unless the Court below or the Court enlarges the time. The appellant ought to have applied for an enlargment of time at the same time when the application for leave to appeal was made before the Court of Appeal . Failure to take such a stop was fatal . In my opinion, the Appellant was out of time when he made his application for leave to appeal in the Court of Appeal.

In view of what I have said above grounds 1 and 2 of the round of appeal fail. Counsel for the Appellant's has submitted that the affidavit filed by John E. Bankole Jones on the 28th of October ,1986, was a fresh step in the proceeding and submitted that it was a waiver of any irregularity committed by the Appellant in the proceeding . Counsel has referred to Order 50 Rule 2 of the Rules of the High Court and Order 70 Rule 2 of the English Rule 1961:

Order 50Rule 2 is as follows:

"No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time: nor if the party applying has take any fresh step after knowledge of the irregularity

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Order 70 Rule 2 is ipsisima verbs on rule These rule are not applicable to proceedings in the Court of Appeal. However, what this Court is called upon to determine is whether the Court of Appeal erred when it said " I could not agree more" in its opinion on the submission that the affidavit files on the 28th October, 1986 was not a waiver of an irregularity in the proceeding. What was the irregularity complained of in the proceedings? That the Appellant failed to apply for an enlargement of time before applying to the Court for leave to appeal when they were out of time .Counsel for the Respondent has argued that the filing of the affidavit on the 28th October ,1986 is not a waiver.

The relevant rule is Rule 66 of the Rule of the Court of Appeal .

Rule 66 is as follows.

"Non-compliance on the part of an appellant with these rule or with any rule of practice for the time being in force shall not prevent the further prosecution of his appeal if the Court considers that the non-compliance , was not wilful and that it is in the interest of justice that the non-compliance should be waived:- when those directions were given."

This rule clearly indicates that the issue of waiver is at the discretion of the Court to determine , The rule also spell out the perimeter/ within which the discretion could be exercised. Firstly in the instant case the appellant moved Court of Appeal on an original motion in a fresh action seeking Leave to appeal. They were not appellant within the provision of Rule 66 or within the definition in Rule 1 of the said Rule. Secondly ,the issue of waiver is at the discretion of the Court and it is not at the instance of the parties to decide that a

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step take in the proceeding is a waiver. Thirdly,it is for the Court to determine if the step taken in the proceedings is an irregularity ,and if so whether it can be cured without injustices , on term. On the contrary ,if there has been a breach of a statutory permission, the Court ought not to grant any indulgence to any party  whatsoever, whether a step has been taken in the proceedings by the party raising the objection or not. In the instant case ,the appellants failed to comply with the provision in Rule 10 sub-rule (1) and sub-rule (4) In my opinion the submission of Counsel for appellant is untenable and grounds 3 7 4 therefore fail. I will dismiss the appeal and it is dismissed accordingly with cost to the Respondent.

Sydney Warne.

Justice of the Supreme Court.