Elba v. Elba (Misc. App 4/2000) [2000] SLCA 3 (08 March 2000);


ANTONETTE JOY ELBA                               - APPLICANT


AKIN O. ELBA                                           - RESPONDENT


HON MRS. JUSTICE V.A.D. WRIGHT,                    J.A

HON MR. JUSTICE N.D. ALHADI,                          J.A.



E. HALLOWAY ESQ,                                    FOR THE RESPONDENT

RULING ON 8TH MARCH,2000 WRIGHT,             J.A.

By Notice of Motion dated 31st January, 2000 the Applicant applied for the following Orders:-

1. That leave be granted to the Applicant to file an appeal out of time from the judgment of the Hon, Mr. Justice F.C. Gbow dated 10th November, 1998.

2. That there be a stay of all proceedings pending the determination of this application.

3. That there be a stay of execution of that part of the judgment appealed from.

4. That the costs of this application be that of the Respondents'.

This application is supported by the affidavit of the applicant sworn to on the 28th day of January 2000, and filed herein.

Counsel for the respondent raised a preliminary objection that this Honourable Court cannot entertain this application since the application sought to file an appeal out of time. He said that the judgment was delivered on the 10th day of November 1998 which is about 15 months ago. Counsel for the Respondent referred to Rule 11(6) of the Court of Appeal Rules and, as such the application should be dismissed.

Learned Counsel for the Applicant submitted that the objective goes to the root of the matter and that this court has the power to exercise a discretion in favour of the Applicant. Re Vide Kamal vs. Stevens A.L.R. 1964 - 1966 series.

Having heard the arguments of Counsel on both sides I would refer to Rules 11(1) and Rules 11 (6) of the Court of Appeal Rules PN. No 29 of 1985 states:

(1) No appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision unless the Court enlarges the time.

Rules 11(6) States: -

"No application for enlargement of time within which to appeal against shall be made after the expiration of one month from the expiration of the time prescribed within which an appeal may be brought."

We have carefully perused the affidavit of the Applicant in support of the application, which clearly demonstrates tardiness on the part of the Applicant to pursue her appeal expeditiously. The judgment was delivered on the 10th November 1998 and the application herein is dated 31st January 2000 which is clearly out of time as provided for in Rulel 1(1) vide supra.

We uphold the preliminary objection raised and we find ourselves unable to entertain this application. The Applicant is to pay the costs of this application.

I agree (sgd) Hon Mrs. Justice V.A.D. Wright               - JA

I agree (sgd) Hon Mr. Justice N.D. Alhadi                    -  JA

I agree (sgd) Hon Mr. Justice M.E.T. Thompson           - JA