Bin Rafaah v Precious Mineral Marketing Co (SL) Ltd (NULL)  SLCA 12 (29 May 2000);
IN THE MATTER OF THE PRECIOUS MINIERAL MARKETING COMPANY (SL) LTD.
IN THE MATTER OF THE COMPANIES ACT CAP 249
SHEIK ADUDULLA ABDULKALIE BIN RAFAAH APPELLANT
PRECIOUS MINERAL MARKETING COPAMNY (SL) LTD RESPONDENT
JUDGEMENT DELIVERED ON THE 29TH DAY OF MAY, 2000
CORAM: The Hon. Mr. Justice N,D. Alhadi
The Hon. Mr. Justice M.E. Tolla Thompson
The Hon. Mr. Justice F.C.Gbow
Mr. D.S.Vincent Esq. for the Appellant
Mr. F.M. Carow Esq. for the Respondent
TOLLA THOMPSON JA.
Pursuant to the order of this court dated 11th May 2000 granting the appellant an extension of time to file notice and grounds of appeal within three days, thereof, the appellant filed the said notice of appeal on the 12th May 2000.
On the 16th May 2000, Mr. P.M. Carew learned counsel for the respondent filed a notice of intention to rely on a preliminary objection. The grounds of the preliminary objections are:
1. That the notice and grounds of appeal numbered CIV App 10/2000 dated 12th May 2000 is not properly before this honourable court as the said notice and grounds of appeal infringe the provisions of the court of appeal rules (Public Notice No. 29 of 1985).
2. That this honourable court therefore has no jurisdiction to hear or entertain the said appeal.
On the 17th May when the matter came up for hearing Mr. Vincent learned counsel for the appellant took an objection to the preliminary objection. He referred to the affidavit of Dunstant Samuel Vincent sworn to and filed on the 17th May 2000 and said that he had not been given three clear days notice pursuant to rule of the Court of Appeal Rules 1985.
Mr. Carew learned counsel for the respondent in reply submitted that since the appellant has filed an affidavit in opposition he is deemed to have waived the need for a three clear days notice or in the alternative he was asking for an adjournment.
After further arguments the court came to the conclusion that that the three days notice be waived to allow Mr. Carew to go on with the preliminary objection.
On the preliminary objection Mr. Carew submitted that the notice and grounds of appeal dated 12th May 2000 infringe the provision of the court of appeal rules - Rule 11 (5) states that a copy of the order shall be annexed to the notice of appeal, it is mandatory. Continuing he said failure to annex the order to the notice of appeal is fatal to the notice of appeal.
In support of his submission he cited the following cases:
1. Elijah Speck v Gbassav Keister 2 SLLR 1962 P 127
2. Nigeria Shipping Line v Abudul Ahmed Civ App Supreme Court
3. Mohamed Jalloh v Khrisna Kuqer M,isc App 2/99
He submitted further that the non-annexation of the order is mandatory and fatal and deprives this court of the jurisdiction to hear and determine the appeal.
Rule 66 of the court of appeal rule does not apply to this application. Finally, he is asking the court to dismiss the matter.
In reply Mr. D.S. Vincent for the respondent submitted that by rule 35 of the Court of Appear Rules the responsibility for drawing up the order is in the Registry of the Court of Appeal.
By paragraph 3 of the supplemental affidavit, he has exercised all due diligence. He cites the case of Balmantri R Bhatty v Tejwant Singh and another 1962 East African law report p 497. He said the duty is that of the Registry of The Court Appeal.
Rule 66 of the Court of Appeal rules remedy the situation. The failure is not willful because of the circumstances in the affidavit.
Finally he said, he is respectfully asking the court to allow him to annex the order shown as DSV 2 in the affidavit to the notice of appeal, since he only had the said order on Wednesday. 17th.
Mr. Carew in answer said the case cited is not applicable to extension of time.
Failure to comply with the order he should come for enlargement of time.
The point in the objection canvassed concern Rule 11(5) of The Court of Appeal Rule 1985. In this respect I think it is necessary to set out in extenso Rule 11(5) of the Court of Appeal rules 1985.
"Where time is enlarged under this rule a copy of the order granting the enlargement shall be annexed to the notice of appeal.
It is obvious that a copy of the order granting extension of time should be annexed to the notice of appeal on filing of the notice of appeal. In the instant case is a copy of the order annexed to the notice of appeal? I think the answer must be in the negative. Is it fatal to the appeal or is it an omission, which can be remedied or waived to allow the appeal to go on.
Before answering this question, 1 think it is pertinent for me to observe that the provision of rule 11(5) is similar to (1) rule 14(4) of the West African Court of Appeal Rules 1950 and (2) rule 11(4) Court of Appeal rules PN28 of 1973.
Rule 14(4) among others states: .................when time is so enlarged a copy of the order shall be annexed to the notice of appeal"
And rule 11(4) also states ......., when time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal"
It seems to me that there is no difference in the requirement of the two old rules of the court of Appeal and the present Court of Appeal Rules as to the annexing of a copy of the order of court granting extension of time.
I shall now answer the question pose by referring to decide cases on this point.
In the case of Elijah Speck v Gbassay Keister 2 SLLR 1962 p 126 where a similar point was taken, The Court of Appeal held striking out the appeal that it was not properly before the court since the requirement of rule 14(4) had not been complied with.
At page 127 of the ruling Dove Edwin JA had this to say:
"The appellant have had their opportunity when the time was extended by the court and have failed to take advantage of it, no further consideration could be extended to them "
Again in the case of Daniel Foday v Mohamed Koroma 2 SLLR 1962 p 138 a similar point was yet again taken that the notice of appeal was filed within the extended time but no copy of the order extending the time was annexed to the notice of appeal as required by rule 14(4) of the West African Court of Appeal Rules.
Held striking out the appeal that the appeal could not be heard sinee the requirement 14(4) had not been complied with.
Mr. Vincent submitted that by rule 33 of the 'Court of Appeal Rules 1985 it is the responsibility of the Registry to draw up the order and in Per 3 of his affidavit he deposed that he exercised due diligence in the matter and order the court to invoke rule 66 to allow him to annex the copy of the order DSV2.
I agree with Mr. Vincent that it is the responsibility of the Registry to draw up the order. But it is equally true that the onus of complying with the order within the time stipulated by the court rests with the appellant. Therefore when learned counsel realised that the order cannot be complied with, within the time stipulated by the court he should have applied to the court for a further extension of time. This he did not do. This submission therefore is of no moment.
In my view this is a mandatory requirement which must be complied with. Failure to comply amounts to a fundamental defect in the notice of appeal, the effect of which is to deprive this court of jurisdiction over the appeal - Rule 66 in The Court of Appeal Rules is inapplicable here.
On the authority of the two cases referred to above, I hold that this appeal is not properly before this court.
The appeal is struck put.