Civ. App. 3/88

IN THE SUPREME COURT OF SIERRA LEONE

BETWEEN:-

NIGERIAN NATIONAL SHIPPING LINES LTD. -APPELLANTS

And

ABDUL AHMED (Trading as Abdul Aziz Enterprises) - RESPONDENT CORAM:-                                                                                   

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

Hon. Mr. Justice C.A. Hardiing                         J.S.C.

Hon. Mr Justice A.V.A. Awunor-Renner,         U.S.C.

Hon. Mr. Justice S.C.E. Warne,                       J.S.C.

Hon. Mr. Justice E.C. Thompson-Davis, J.A. Garvas J. Betts, Enq. & Yasmin Jusu-Sheriff for Appellants A.J. Bishop Gooding, Esq. for Respondent JUDGMENT DELIVERED THIS 17TH DAY OF FEBRUARY, 1989. Thompson-Davis, J.A.:- I have had the privilege of reading the judments of my Lord the learned Chief Justice and my Brother Warne, J.S.C. I concur in their reasons and I wish to add may own bumble views which I consider to be merely supplementary to what they said.

The question raised by this Appeal are of some importance since they concern the interpretation of some rules of the Court of Appeal; thus leaving the impression that the Court of Appeal cannot on its own interpret its own rules.

The points agitated before us concern Rules" 10 (1), 10 (4) and 64 of the said Rules.

Rule 10(1) reads:                           .

"There 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

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decision, against which leave to appeal is sought unless the Court below or the 'Court enlarges the time". Rule 10 (4) reads;

"No application for 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". And Rule 64 reads:

"Except where otherwise provided in these rules or by any other enactment, where an application may be made either to the Court below or 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".

The question therefore is one of the interpretation as applied to the facts of the case of these rules. The central issues: relied on by the Appellants are that the Court of Appeal -

(a) "Nisconstrued the provision of Rule 10(1) and Rule 10 (4) of the Court of Appeal Rules, P.IT. No. 29 of 1985 in treating the said sub-rules cumulatively as requiring that after four weeks after the date of the decision in respect of which leave to appeal is sought, an applicant who has applied for leave to appeal in the Court below within two weeks stipulated in Rule 10 (1), would

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necessarily first, have to apply for enlargement of time, for leave to appeal, where the Court below has refused the application for leave to appeal,and such. a ruling refusing leave fall outside of fourteen days, after the delivery of the decision in respect of which leave to appeal is sought".

(b)   "Failed to hold, as in law it should that where the applicant in the High Court had filed his Notice for leave to appeal within tine, such an Applicant had complied with the requirements of Rule 10 (1) and that the requirement for enlargement of time in the said sub-rule would no longer apply to such an Applicant to whom leave is denied would be entitled to have his application determined by the Court".

(c)  "That when the Court of Appeal held that it could "not agree more" that in law, an affidavit in opposition which was filed could not act as a waiver the Court misdirected itself in law in that such a step, with full knowledge of non-compliance with the Rules is a fresh step, and so a waiver".

(d)  Erred in law in treating an act of non-conpliance, as having the effect in lav; in making an application void rather than merely irregular..........."

The Appellants have therefore claimed. "Reversal of the Order of the Court of Appeal and a remission of the application to the said Court for a determination and hearing".

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The Respondent has maintained that the decision of the Court of Appeal is right and ought to be affirmed".

Under the said Rule 10 (1) an application for leave to appeal where an appeal lies by leave only must of necessity be made within 14 days from the date of the decision against which leave to appeal is sought, and such an applicant must first apply to the High Court by virtue of Rule 64. The High Court may by virtue of the said Rule 10 (1) extend the time of 14 days as that is the Court before whom the proceeding will be taken. It seems clear to me that the applican must apply to that Court for any enlargement of the period of 14 days before it expires. I shall come back to the point.

In my view, there are three possible results which can arise in the circumstances:-

(i) the application nay be granted by the High Court; the applicant will then have to file a Notice of appeal under Rule 9 and comply with Rules 11 (1) & (2). (ii) The application may be refused within the 14 day period, the applicant will then have to file a fresh application for leave to appeal to the Court of Appeal and comply with the relevant portion of Rule 10 (2) -setting forth "proposed good ground of appeal which prirma facie show good cause for leave to appeal". (iii) The application may be refused outside the 14 day period, the applicant must then apply to the Court of Appeal if the 14 day period has been enlarged, he must then comply with Rule 10 (2) and annex to the application the order granting the enlargement of tine under Rule 10 (3).

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I must notice at this point what appears to be a very conspicous fallacy of the Appellants' argument. They have urged upon this Court to say that "where an Applicant in the High Court had filed his Notice for leave to appeal within time (14 days) such an Applicant had complied with the requirement of Rule 10 (1) and that the requirement for enlargement of time in the said sub-rule would no longer apply to such an Applicant............" This argument misconceives the significance of the said Rule 10 (1) & (4).

She pertinent question is how does an Applicant go to the Court of Appeal if his application under Rule 10 (1) has been refused and time for making such application has expired? Does he merely change the heading of his application to read "In the Court of Appeal" and send it to that Court relying on the fact that he had made a similar application in the High Court within the statutory fourteen day limit which had been refused? A procedure of this nature would hardly be creditable to the judicial process:- The first step to be taken toward the acquisition of a right to go to the Court of Appeal from. a refusal made under Rules 10 (1) & 64 of the Court of Appeal Rules, made by the High Court is an application for extension of time to its concurrent jurisdiction if an Applicant is out of time.

Once the High Court has refused such an application and the 14 day period mentioned in Rule 10 (1) has expired, its jurisdiction closes and an applicant has to make a fresh application to the concurrent jurisdiction of the Court of Appeal to have his application determined by it. At that stage the High Court has no jurisdiction and so no time which it could enlarge. As a general rule and subject to any specific provision to the contrary, all applications for doing any act or taking any proceedings to enlarge the time for doing any act or taking any proceedings must be done in the first instance to the Court or person who has jurisdiction to deal with the substance of the matter in relation to which the extension of time for a step

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to be taken is required; thus application for extension of time to appeal to the Court of Appeal must be made to that Court.

When one looks at the old Court of Appeal Rules (P.N. 28) of 1973 it is patently clear that once the High Court has refused an application for leave to appeal, its jurisdiction becomes extinct and the Applicant must now apply to the Court of Appeal to have the application determined subject to its rule 11 (4), and he must apply within one month. Rules 10 (1) (2) &. 11 (4) of the 1975 Rules reads:-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 for leave within fourteen days from the date of the decision against which leave is sought.

10 (2) Whenever an 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, subject to the provisions of rule 11 (4) be entitled to have the application determined by the Court.

11 (4) No application for enlargement of time in which to appeal shall be made after the expiration of one month from the expiration of the time prescribed within which an appeal may be brought. Every such application shall be supported by an affidavit setting forth good and sufficient reasons for the application and by grounds of appeal which prima facie show good cause for leave to be granted. When tims

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is so enlarged a copy of the order granting -such enlargement shall be annexed to the notice of appeal.

What difference there is between the present and the old rules is that an Applicant has 14 days plus another 14 days under rules 10 (1) & 10 (4) within which to have his application determined by the Court of Appeal if such an application is refused by the High Court, whilst the statutory period under the old rules in the same circumstances is 14 days plus one month; in both cases an applicatio for enlargement of time must be made to the Court of Appeal if time has expired.

What is very clear from what I believe is a true construction of the said rules is that whilst the lower Court is empowered to enlarge the period of 14 days it can only do so before that time has expired.                                     

Another consideration which inclines me to accept this view is the provisions of C. 58, r. 14, & C. 64 r. 7 of the Rules of the Supreme Court - The Annual Practice.

As the Court of Appeal under the provision of Rule 38 of its Rules has power to refer to the Rules & Practice which were in force in that Court immediately before April 27, 1961 on matters not expressly provided for by its Rules, I have had recourse to the said O. 58 r. 14 & C. 64 r..'7 to enable me to have the appropriate intention of the said Rules 10 (1) & 64. The combined effect of these C. 58 r. 14 & C. 64 r. 7 is that while the Court of Appeal has power to enlarge or abridge time, and may enlarge it even after its expiration, the High Court can only enlarge the tine upon application made before its expiration and no power to abridge it - Vide Re 20 Exchange Street Manchester; Austin Reed Ltd. v -Royal Insurance Co. 1956 1 W.L.R. p. 765.                                                                                                 

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It is sometime assumed that because of the provisions of Rule 64 of the Court of Appeal Rules which makes no provision as to time, an application for enlargement of time must first be made to the Court below that is the High Court and if refused to the Court of Appeal. I must say that this is in my view a misinterpretation of the said Rule, the rule applies to applications which "may be made either to the Court below or the Court" and I think only Rules 10 (1) & 29 seem to be within the grips of the said Pule 64; there is nothing in the Court of Appeal Rules "requiring an. application for extension or abridgment of time to be made to the Court below or to the Court of Appeal; the application must be made to the Court having jurisdiction to deal with the substance of the matter in relation to the application for enlargement of time and before whom the proceedings will be taken.

Following what I have already held I have no doubts whatsoever in saying that the decision arrived at by the Court of Appeal was the true one. An Applicant seeking leave to appeal must have his application determined by the Court of Appeal once it has been refused by the lower Court; if he is out of time, his first duty is to apply for an enlargement of time to the Court of Appeal as that is the Court before whom the proceedings will be taken and. it being the Court having jurisdiction to deal with the substance of the matter in relation to which the extension of tine for a step to be taken. As was held in the case of Sabrah v. Governor and Attorney-General No. 2 A.L.R. (S.L.) 1957-60 p. 116, both documents - the application for extension of time to appeal and the application for leave to appeal should be filed together.

Where an enlargement of time has been granted, a copy of the order granting the enlargement of time must be annexed to the Notice of Appeal; as was held in Elija Speck vs. Gbassay Keister 1962 S.L.L.H. 1962 p. 126. In that case Done-Edwin, J.A. had this to,say

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"In the circumstances the omission to follaw the rules is fatal and it is my opinion that the appeal is not properly before the Court and should be struck out"

It seems clear to me that in all the circumstances, the Appellant here have failed to follow the Rules by applying to the Court of Appeal,; to have their application determined when they were out of tin without first obtaining an order granting them an enlargement of time; there was no appeal before the Court; that omission was fatal. It could surely not have prejudiced the Appellants' case if they had. chosen to obtain an enlargement of time to apply to the Court of Appeal, On that basis the Appellants have no rights to complain about the Court of Appeal's decision, the Court had no jurisdiction in the matter, it could not have adjudicated on it and therefore could not; have assumed jurisdiction even where there is a fresh step or waiver by the Respondents of any non-compliance with any of its rules.

I am therefore of opinion that this appeal must be refused. The appeal is accordingly dismissed. The Respondents will have the costs of this appeal; such costs to be taxed.

E.C. Thompson-Davis, J.A. 17/2/89.