This Motion brought by the l 5\ 2nd and 3rd plaintiff/applicant is for the followini; orders:

... ' : .

(l)      _ LeaYe and enlargement of time within which to appeal against the Decision/or order of the court of appeal dated 8th January 2009 in the abovt'fltuled matter;

Enlargement of time within which the application for leave may be made to appeal against the decision and or order of the Comt of Appeal dated 8th January 2009 in the above tituled matter.

Dr. Bu-Buaki Jabbi ; learned counsel for the applicant was about moving the Court when learned counsel for the respondent Mr. Fynn  interjected  and s;:id he was taking an objection to the J\,fotion on two grounds:-

(I)       That the application brought by the plaintiff/applicam is in the wrong Court and ought not to be heard;

(2)      That the application for the enlargement of time is out of time.

On the 1st objection Mr. Fynn relied on rule 7 of  the  Supreme  Court Rules.  He said the power to grant leave must be done by the court  where  the decision or appeal emanated.  In  this  case  the application  for leave must first  be made  to the Court of Appeal if refused then to the Supreme Court. The rule does  not say that the applicant should come. to this court_ as of right. He cited _:a.lie 6 1(c) of the Supreme Court  Rules which states that the  applicant  should  come  to this cou1t with leave of the Court of Appeal.

For enlargement of time he relied on  mle  26  of  the  Supreme  Court Rule. TI1e only process to come to this Court is by special leave.  In  answer to Dr. Jabbi's reply  he said  that  rule 6  l(a) of  the Supreme  Court  Ruk  is an  aid to section 123 (1) (a) of the Constitution  and  without  rule  6  (l)(a) section 123 of the Constitution will have an unreserved effect. The combined effect is to resolve an otherwise inconsistent resolution. It qualifies the  class  of  ciYil matters that should come as of right.

Dr.  Jabbi   in  reply   referred   this  court   to  Sec.   123  (i)  (a)  of the

Constitution  and  mle  6  l(a) of  the  Supreme  Court  Rules  and  sub1:-.i0'.e d  tha since  Sec. 123 of  the  Constitution  modifies  rule  6  l(a)  of  the Supreme  Com,

rnle and as it stands rnle 6 must be rcud within the context and is subject to the provision in Sec. 123 (1) (a) of the Constitution. Continuing he submitted that_ applying Sec. 123 (1), the appeal is against the decision of the Com1 of Appeal in this matter is an appeal as of right being a civil case, and strictly speaking it does not require to be pursued by leave.

As regard the 2nd objection Dr. Jabbi submitted that it docs not apply to the application before the Court. It is applicable to an application for Leave. He said his application for enlargement of time is within the prescribc:d time.

Finally he submitted that rnle 69 of the Supreme Court Rule docs not apply, it does not when there is an appeal as of right.                                                                                       It only applies when the appeal is by leave. The application before this court is in respect of m1 appeal as of right.

Let me say right away that my assessment of the argument and submissions by both counsel went beyond the objections raised by i\1r. Fynn and the reply thereto by Dr. Jabbi.- In my opinion, therefore, this  iing will  not be confined to the objections alone instead it will encompass the original motion/application brought by Dr. Jabbi.

As regards the first objection, mle 6 (1) (a) of the Supreme  Court  Rules it stipulate that to appeal on any cause or matter emanating from the Court of Appeal leave must first be obtained if it involves substantial question of law or public importance and such application be pursuant to mlc 7 of the Supreme Court Rules. This is a restrictive provision. I am sure this is tl!c rule Mr. Fynn had in mind when he took the first objections to the motion. There

• is no evidence before us to suggest that the decision of  the Court  of  A pcal which is the subject matter of the  motion  involves  a "substantial  question  of Jaw or of public importance" which necessitated an application for le8_ve to appeal to this court.

In the result the Ist objection is untenable and cannot be sustained.

As regards the 2nd objection quite clearly Sec. 123 (1) (a) and rule 6

(I) (a) confer a right of appeal to the Supreme Court and the right is unfettered

i.e. it is not subject to any impediment unless the appellant had exceeded t!Je time within which to appeal. See rule 26 (1) of the Supreme  Court  Rules, even then in a proper case, leave for enlargement of time will be granted see rule 26 (4) of the Supreme Court Rules. I note from the affidavit evidence of the applicant that time has not yet elapsed for the enlargement of time within which to appeal.

I now come to Dr. Jabbi's motion. It cannot be overlooked tl.:wt in his application Dr. Jabbi is asking for  Leave  either  to  appeal  or  for  the enhrgement of time within which to appeal. I am tempted to ask what Leave. When in his own very words he conceded that he can appeal as of right to the Supreme Court pursuant  to the  relevant  provision  of  the  Constitution.  I  take it, he is here referring to Sec. 123 of the Constitution. Sec.123 (l)(a) of the Constitution aml'it states:-

"An appeal shall be from the judgment decree or order of the Court of Appeal to the Supreme Court as of right in any civil cause or matter."

rt  is  obvious  to  me  that  the  judgment   in  question  1s  a  substanti, 1   e judgment of the Court of Appeal: and for the purpose's of appeal,  is  within the ambit of the above section of tl1e constitution and also a litigant desirous to appeal, should utilize Sec. 26 (I) of the Supreme Court Rules, which states:-

"Where an appeal lies as of right the appellant shr.11

lodge his Notice of Appeal within 3 months from the date of the Judgment unless the Supreme Court enlarges time."

Is there an appeal against the judgment to the Supreme Court? I opine not. In fact if the applicant intends to appeal such appeal will be out of time as the 3 months stipulated by the rules have elapsed. The judgment was delivered on the 8th January 2009.

However the applicant can ayail himself of rule 26 (4) of the Supreme ...

Court rules which states:-

"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 application for enlargement

of time shall be by motion supported by affidavit setting forth good and substantial reason for the application and by the grounds of appeal which prima facie show good cause for leave to be granted. Where time is so enlarged a copy of the order granting such enlargement shall be annexed in that noti-: •Jf appeal."

The above rule suggests thafleave to appeal will be granted within one month after the expiration of the 3 months provided by rule 26(1); in other words, time to appeal will be enlarged by a month after the expiration of the :3 months.

In my judgment therefore the submission and the argument canvassed by Dr. Jabbi are more in tune with the second order prayed for in th n"otice ot motion i.e. "an order granting enlargement of time etc". On perusal of the motion, it is clear to me that though the three months had elapsed sim:e the judgment was delivered by the Court of Appeal, yet the applicant is within time to apply for leave for an enlargement of time within which to appeal.

In the result I am inclined to grant the 2nd order prayed for. The order is accordingly granted.