Bin Rafaah v Precious Mineral Marketing Co (SL) Ltd (NULL) [2000] SLCA 11 (29 May 2000);








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

hon. mr. justice m.e. tolla-thompson                                          - J.A.

HON. MR. JUSTICE F.O. GBOW                                         - J.A.




On the 16/5/2000 the Respondents filed a Notice of Preliminary Objection pursuant to Rule 19 of the Court of Appeal Rules 1985,. objecting to the he soring of the Appeal before this Court on the ground of non-compliance with Rule 11(5) of the said Rules by failing to have annexed to the Notice of Appeal a copy of the order granting the enlargement of time within which to Appeal. This is the pitt and substance. of this argument. He argued that the non-compliance with the said Rule is fatal and the Appeal should "be dismissed. In support of this submission he relied on the cases of Speck (Elija) v. Keister (1962) 2 'Vol. 126. Nigeria National Shipping Co. v. Abdul Aziz Civ. App"; 3/88;;

It is pertinent to observe that before the argument on the Preliminary, Objection commenced Learned Counsel for the Appellant raised an objection to the Preliminary Objection been heard on the ground that the Respondent had not complied with Rule 35( 1) of the Rules that three clear days Notice ought to be served on the other side before the hearing of the application". Counsel for the Respondent conceded to this but argued that filing of an affidavit in opposition by the Appellant amounts to taking .'fresh step after knowledge of the irregularity (that is non-compliance with Rule)} He however did not pursue with this line of his argument and applied


that the court grants him an adjourment to comply with the said Rule (19)(1) . The court waived the irregularity and ordered that the Preliminary Objection be proceeded with.

Rule 11(5) of the Rules provides that where time is enlarged . a copy of the order granting the enlargement shall be annexed to the Notice of Appeal. Prom the affidavit evidence before us this provision has not been complied with.

Counsel for the Appellant in reply relied on his affidavit in which he deposed that his failure to annex the said Order of the Court was due to his inability to obtain the drawn up and perfected order from the court's registry until the 17/5/2000. In Paragraph 6 of this Supplemental Affidavit he deposed as follows:- That I was only able to secure a copy of the said order on payment of the prescribed fee at about 9.a.m. on Wednesday the 17th of May, 2000, the date fixed by the Court of Appeal, for the hearing of the Appeal. Photocopies of the receipt of the prescribed fee paid and the. order are exhibited hereto and marked "DSV1" and "DSV2". Rule 55/1)(2) of the Court of Appeal Rules provides:-

(1) "After the delivery of every judgement by the court the order of the court shall be drawn up and signed by the Registrar under the seal of the court and filedl"

(2)    Any person may apply to the Registrar for a certified true copy of the drawn up order and the Registrar shall cause such copy to be issued to that person upon the payment by him of the prescribed fee".

It is on these principles of the law that the issues raised herein should be considered.

It is clear from the affidavit evidence before the court (no contrary affidavit has been filed). That the order of this court was drawn up and filed on the 17/5/2000, that is six days after the order of this court dated the 11/5/2000.

In the light of such evidence and the rules it is clear that until the administrative act is performed by the Court Official responsible an Appellant or would be Appellant would be handicapped to comply with Rule 11 (5) of the Rules. It would be unfair to my view to attribute any fault on the part of the Appellants legal advisers where the failure for non-compliance with the order was due to the negligence or ineptitude of the court official since he is


deemed to have actual notice of the court's order. To hold other-wise, I conceive will be tantamount to punishing a litigant for the fault not of his own mating or that of his legal advisers, but that of some one else. In that regard I cannot see host justice can manifestly to seem to be done.

In Speck(Elija; v. Keister the solicitor for the Appellant for whom the order for enlargement of time was granted by the Lower Court failed to have the order drawn up and filed. The record of the High Court proceedings were transmitted to the Court of Appeal with the Order of the Court not been among the papers or annexed to the Notice of Appeal. The court held that the non compliance with rule that such order should be annexed to the Notice of Appeal was fatal and the appeal was struck out. Ames Ag. President of the West African Court of Appeal had This to say:

"The responsibility for having The order . drawn up was on The appellant and it cannot be shown that any drawn up and none was served upon the respondent as required by rule 14(4)".

According to the said Rule 14(4) the responsibility of drawing up and filing the order on the appellant in favour of whom the order was granted. This case is in law and on the facts different from the issues raised in this matter.

The factual situation is that there is non-compliance with Rule 11(5) and in, that regard what should court do?. The non- compliance does,deprieve the court or jurisdiotion to adjudicate (on the appeal. The Court in some of those cases where There are non-compliance with its rules will have the appeal struck out for such irregularity. In Speck (Elija) v. Keister supra and Daniel Foday v; Mohamed Koroma Sierra Leone Law Report Vol.2 P. 138 The Appeal was struck out for non-compliance with similar provision .

However there is an inherent jurisdiction in this court to waive whatever irregularity there is in the exercise of its discretior in The interest of justice. DOVE -EDWIN JA in the coursed of his judgment in The above case of Speck v. Keister said at .Page 127:-

"No rule need have been mentioned This court acting in its inherent jurisdiction in a matter in which it felt it would meet the ends of justice to do so."

Apart from the inherert jurisdiction of this court to exercise its discretion where The interest of justice comands, rule 66 of the Court


of Appeal Rules recognised this jurisdiction ana enacted it in a Statutory form . This Rule provides:-.

"Non-complicance on the part of an appellant with these rules or with any rule of practice for time being in force shall not prevent the further prosecution of his appeal if the Court considers that the non-compliance was not wilful ana that it is in the interest of justice that the non-compliance should be waived. The Court may in such manner as it thinks fit, direct the appellant to remedy the non-compliance, and thereupon, the appeal shall proceed. The Registrar shall forthwith notify the appellant of any directions given by the Court under this rule, where the appellant was not present at the time when those directions were given."

As I stated above the facty in this .case disclose no wilful conduct on the part of the appellant for the non-compliance with rule 11(5). The fault adquartely rest on the shoulders of the Court's Official responsible as provided for in rule 35(1) . In my considered view in the interest of justice that this non-compliance should be waived, and I so waive it  perhaps in explaining my attitude to the application of Rule 66 I cannot do better than to quote the words of Justice E.F. Luke C.J. in Oastro. Ltd. V. John Michael Motors Ltd. So. Civ. App.1/98 referring to Rule 103 of the Supreme Court Rules which is similar to the said Rule 66 of the Court of Appeal in which he said at Pages 2-3

"Where as, Rule 103 is necessary to allow the Court to do justice in appropriate circumstances, non-compliance with the Rules on the part of an Appellant shall prevent the further prosecution of the appeal unless the Court is satisfied not only that such non-compliance was not wilful but that the interest of justice requires that such non-compliance be waived".

The case of Gatti & Shoosmith is authority for the unfettered discretion of the Court where dealing with mistake on the part of a legal adviser but does not otherwise provide solace for non-compliance with the

Rules of Court- especially where there is me ambitus type Parties seeking to come before the Court would bo well advised not to think that the discretion provided by Rule 103 will necessarily be exercised in every situation.


Wheteher the matter shall be so treated must depend upon the facts of each individual case."

In conclusion I will. like to refer to a passage in the judgement of Sir. Trevor Crould in the case of BALWANTRAI D. BHATT V.TEJWANT SINGH & ANOR(1962). EAST AFRICA LAW REPORT 497, (referred to by Counsel for the Appellant) where the facts which gave rise to the Appeal to that court are similar to these herein. He said: If the intending appellant (in the ordinary case by his legal representatives) has exercised all due diligence and

done all in his power to obtain the necessary copies of documents ii time, but has been prevented from, doing so because the Supreme Court has not been able to supply them it would in the absence of other special circumstances be a denial of justice not to extend The specified period.. He would have been deprived of his right of appeal, which in the type of case now under consideration is an absolute one, through circumstances which, though the fault of no one, are atuributable to the courts and beyond the intending Appellants's control.''

Having said this much I agree with my learned brother F.C. Gbow J,A, and malke the following Orders:

(1) The preliminary objection is overruled

(2) That the Order of this court dated 11/5/2000 be annexed to the Notice of Appeal already filed by the registrar of this courts.

(3) That a copy of the said annexed Notice of Appeal be served on the respondent".'

 (4) The appellant be allowed to prosecute the appeal.

(5) The appellant to pay the costs or Le 500000 to the respondent. within three days

(Sgd)) Hon Mr. Justice N.D. Alhadi-J.A.