Arthur E. Agbaje v Christian E.Agbaje And Another (MISC APP 2 of 2014) [2015] SLSC 1211 (24 February 2015)

pera 28e a} Misc. app. 2/2014, A IN THE SUPREME COURT OF SIERRA LEONE : THE SUPREME COURT OF SIERRA LEONE BETWEEN: ¢ ARTHUR EBUN AGBAJE AND CHRISTIAN EBUN AGBAJE, -APPELLANTS/APPLICANTS AND HASSIATU GBASSA AGBAJE -RESPONDENT

Coram

The Hon. Mr. Justice V. V. Thomas, JSC. - Presiding The Hon. Mr. Justice P.O, Hamilton, JSC, ‘The Hon. Ms. Justice E. E. Roberts, Je. COUNSEL: Min Uenktins-Johnston Esq, for the Applicants, Miss Wara Serry-Kamal for the Respor ten He RULING DELIVERED on THE 27 pay ORVES DUA 2015 The Applicants, by Notice of Motion dated 4th November 2014, have applied Xo this Court pursuant to Rule 26 (1) of the Supreme Court Rules, 1982, Public Notice No. 1 of 1982 (the Rules) for the following orders:-

1. That this Honourable Court grants to the Appellants/Applicants herein cnlargement of time within which to appeal to this court from the Judgement of the Court of Appeal dated 11% March 2014,

2. That this Court grants a stay of all Proceedings flowing from the Judgements of the Court of Appeal dated 11% March 2014 and the High 4 Court dated 134 July 2011, pending the hearing and determination of this * application if granted, pending the ensuing appeal in thie Court. > Any further and/or other reliefs as this Honourable Court may deem just

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4. That the costs of this application be-costs in the Cause. 261

For ease of reference, it is helpful to set out in extenso the whole of Rule 26 of the Rules so as to appreciate the context in which the application is made J pursuant to Rule 26 (1): “26,

(1) Where an appeal lies as of right the appellant shall lodge his notice of appeal within three months from the date of the judgment ‘appealed against unless the Supreme Court shall enlarge the time.”

(2) Where there is no appeal as of right the appellant shall lodge his notice of appeal within three months from the date on which leave to appeal or special to appeal is granted.

(3) An application for special leave to appeal shall be filed within ‘one month from the date of the decision of the Court of Appeal.

(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 application for enlargement of time shall be by motion supported by an affidavit setting (forth good and substantial reasons for the application and by grounds of appeal which prima facie show good cause for leave to be granted. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

‘The facts are that judgment was delivered in the High Court on the 13t July 2011 in favour of the Respondent and the Applicant being dissatisfied with that judgment appealed to the Court of Appeal. On the 11% March 2014, the Court of Appeal dismissed the said appeal and upheld the judgment of the High Court. In paragraph 6 of the affidavit sworn to on the 4% November 2014 by the 1* Applicant in support of the motion herein for enlargement of time within which to appeal to this Court from the judgment of the Court of . Appeal, the said Applicant has stated the reason why it has taken 8 months . to file his application for enlargement of time within which to file an appeal in this Court as follows:

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28e hs . “6. That due to some personal constraints, including but not limited to . financial constraints, I was unable to instruct my Solicitor to file an appeal to the Supreme Court within the time limited by the Supreme Court Rules 1982. I have only just returned to the Jurisdiction after travelling to the U.K. for medical treatment’.

Issues

1. Rule 26 (1) and (4) of the Rules are the relevant provisions of the Rules which must be.construed in determining the fate of this application. Rule 26 (1) states that where an appeal lies as of right a party aggrieved with the judgment of the Court of Appeal has 3 months from the date the judgment was delivered, to file his appeal to this Court unless this Court enlarges the said time. Rule 26 (4) imposes a time limit of one month within which an application for enlargement of time can be made. Once Uhat period of one month for making such an application for enlargement of time has expired, no such application can be made. This is a statutory provision by way of subsidiary legislation which must be complied with strictly. This Court had the opportunity of considering similar provisions in the Court of Appeal Rules 1985 P.N. No.29 of 1985 (the Court of Appeal Rules) in the leading case of Nigerian National Shipping Lines Ltd. v. Abdul Ahmed Trading as Abdul Aziz Enterprises (Unreported) S.C. No.3/88 (Ruling delivered on 17% February 1989). The Court was called upon to construe inter alia Rules 10 (1), 10 (4) of the Court of Appeal Rules which are largely in pari materia with Rules 26 (1) and 26 (4) of the Rules. A difference is that Rule 10 (1) of the Court of Appeal Rules deals x with situations where leave to appeal is necessary but Rule 26 (4) deals . with appeals as of right. The majority decision (Kutubu, C.J., Warne, JSC and Thompson-Davis, JA) was to the effect that the rules were cumulative

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and establish a mandatory time limit for applications for enlargement of - time. Similarly, 1 hold that Rules 26 (1) and 26 (4) of the Rules are cumulative. Reading these two rules together, | opine that an applicant has a maximum period of one month after the expiration of the three $ months allowed (for filing a notice of appeal as of right) during which period of one month to seek an enlargement of time within which to appeal. On this issue of the maximum period permitted to apply for an enlargement of time, the minority decision (Harding, JSC and Awunor- Renner, JSC confirms the majority decision. Harding JSC said, referring to Rule 10 (4) of the Court of Appeal Rules which is similar in certain material respects with Rule 26 (4) of the Rules, as follows: “Again, there is no ambiguity about the words used here. This provision deals about applications for enlargement of time ~ as distinct from applications for leave to appeal. It makes it mandatory for an Applicant who is seeking an enlargement of time within which to apply for leave to appeal to do so within twenty-eight days from the date of the decision against which leave to appeal is sought.” Awunor-Renner JSC said; “..wit is clear from rule 10 (1) that.... the application for leave be made within 14 days. Reading Rule 10(4) it is also clear that the time limit within which an application for enlargement of time within which to apply for leave is 14 days from the expiration of the 14 days period within which an application for leave to appeal may be made.” In view of the clear and unambiguous statutory provision as to the time limit for an application for enlargement of time, | hold that this application is out of time and ought to be refused. However Counsel for the Applicant seeks to rely on Rule 103 of the Rules to rescue the situation and has argued that in the interest of justice and considering that this is the % highest Court in the land, the application should be granted. Counsel for 7 the Applicant has also relied on the Court of Appeal decision in Kamal and Bomboli Sebora Chiefdom Council v. Stevens and Koroma [1964-66] ALR

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