Nigerian National Shipping Lines Ltd v Abdul Ahmed (CIV APP 3 of 1988) [1989] SLSC 8 (17 February 1989)

Be 8 aS ane ae PE eT ES ee Py eae er tad oe ; Gite a 2 oe LIME. surRee counn op sTERA LEONE EPDM iar SE Gece ey Oe “4 sees Lo ee oe : RE ee oe a cea eee Te Rutubt (nda: = Presiding & a Mes, Tusthce ok. Harding, J.8.C. “SBeot og Rone Mee Justice /A.v.A, aminor-Renner,’ 148.0." gh (HOR Bs Tustice 8,00E. Warns, J.8.c. > | Ppp Rote: Me, Justice £40, Tonpaon-Davis, J.A. ae a SOS, MKGERIIN wastonat SkIPETNG Limes Le. += APPELLANTS, Piekee leg pa ae noe ae aso ss ‘Gimantue’ as aioo aaiz minsaecisss) - RESPONDEND 4g ftPlge Ts:Bette Beg. end:Yasnin Jusucsheritr for Appellate, Aad Bishop: Tooting Fog. for Resyondent ¢ TESST “y RUBUBE, O1F.i- “mais ts {2 append against Gao Futing and Caton’ of) 2” the, Court. of, Appeal. for Sterra Leone, delivered on: ths. 1éth day, ore we November, 1986 by Witiiaad J.A., upholding ', prelintaary'sbysetton tS Sgounkel for-Respondent, ona Hotion brought by. counien tax) 3" ; 3 “Sgipetianta, herein,’ the Applicant/Sefendants in the coum belo” £e + faak{ag:lesve; to appeat ogeinee the Rurtag of 86 iitey Cousey 92! oF deiivered, ‘the 16th dat of une 1986 by opty. da, Gas he, then vag, 3 ait Ady. 1 thin necessary i es facts Se, ote case be ascertained, and, the, dates: Pus aceps taxen/be kept in ind, before eoneidenite the grounds’ of appedt. Ta onder 9 carol " , contusion in the courpe! of thie! Judgment’ and: tof pilzposes oF, Saye: roteresioe; I! nay"neveartedrefex,to the Haopendent ap.tolesatssen i? and. Appélante ao "aefentents," ae they. ate one and itis. sawp eee 4 © By Swett som; gummons dated 10ph Dasebery 19670 Oa8 Haast a sa, Chebnatl anon eng cakenaantn fel Yodan of certain ai oeine/GsanepatEee *'y dutyy Toss of prosite' and, Snterost.' 3g /appearange having, bea ventaas | vhs gnoyprpsessbedtliey fLtty Gnas 4h te toateny cane sama © dutoiy fadgeent se seca Hiog agugartuad Galea tet. obra ! P exon lag etn acne GR ep oe serene a : sess inade om 6th ocr oe sk a

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m4 On 21ot Aprii, 1986 defendants entered appearance under protest - ‘and filed a Notice of Motion dated 21st April, 1986 seeking to set | , aside the Judgnent in Default of Appeatance dated 1éth February, 198 Mis was struck out with costs on 27th Nay, 1986.

Another Notice of; Motion which was filed, dated 29th May, 1966 seeking the same remedy wag dismisséd with costs on the 16th June, 1986 by Adophy J. (as he thon vas).

On 21st June, 1986 the defendants applied to the High Court for | Leave to appeal against the said decision, On the 11th day of July, |

"1986 the application for leave to appeal was zefused. |

Gonsequent upon the aforesaid refusal, the defendants on the | 23rd July, 1986 applied to the Court of Appeal for leave to appeal | against the decision of the High Court dated 16th June, 1986. |

hen the application cate up for hearing on 29th Ootebery 1906 counsel for plaintitr raised a prolisinary objection, by subaittiig that the Court of Appeal lacked jurisdiction to entertain the said

"application, vhich in hie’ submission was out of tine, thus depriving aot Comat natant oie toe aaisiee goemmre tere | submission on Bules 10 (1) and 10 (4) of the Court of appea? Rules 1985 Public Notice to. 29 of 1985: te .

Defendants! application ivas disuissed by the Court of peal on

20th day of November, 1986, Tn gelivering the Ruling of the Court of Appeal, Willians J.A-jfad this-to say:- . “The. application before this court was dated 23rd July, 1986. It is for leave to appeal against the decision of the Ties Coust dead vceedsee aeidetn.aigioe Juné, 1986. Clearly such an application 5, is out of time in that it was made 36 days i after the date on which the decision of © the High Court was delivered. There is no ter application before this Court for enlarge- sant mont of time within which to apply for t + leave to appeal.” wy ey : : eile: : a secant 8

ae . BT | _ -Willtems 3.4. concluded ty seying:= * "Tn viow of the authorities on the matter, “ the failure of the applicants to comply 7 with the statutory requirements and to fulfil the statutory conditions requisite for the purposes of the intended appeal, deprived this court of any Jurisdiction to hear the application".

Tt is against that Ruling that defendants have appesied to this court on the following grounds, which I find somehow tedious to set out in full, but for a clear understanding of defendents' complaints in this appeal, I an constrained to set them out in extenso. The following constitute defentants' grounds of Appeal.

4. That when the learned judge said, “The application

Defore this court was dated 23m July, 1986 it is for leave to appeal against the decision of the High Court delivered on the 16th Juno, 1986 clearly such an application is out of time in thet it was made sone 36 days @fter the date on which the decision of the High Court was delivered," the court thereby misconstrued the provision of Rule 10 (1) end 10 (4) of the Court of Appeal Rules, Public Notice Wo. 29 of 1985 in treating the said r sub-rules cumilatively as requiring that after four woeke 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 the two weeks stipulated in Rule 10 (1), would necessarily first have to apply for enlarge-

| ment of time, for leave to appeal, where the court

pelow has refused the application for leave to appeal, and such a ruling refusing leave fell + outside a fourteen days after the delivery of the * decision in respect of which leave to appeal is i

: sought. : e [r

. Oo

2, In holding aforesaid, that the *applicant is out of tine in that it was sade sone 36 days after the date on which the decision of the Court below was delivered," the Court

* failed to construe properly or at all Pule 10(1) of the said Court of Appeal Rules, in relation to sub-rule 10 (4) and Rile 64, The misconstruction or failure to construe properly is that by its ruling the Court below failed to hold, es in law it chould thet wheze the Applicant in the High Court hed filed his Notice for leave to appeal within time such an Applicant had complied with the requirenent of Rule 10 (1) and the require nent for exlezgenent of tine in the said sub-rule would no longer apply to such an Applicant and that further, such an Applicant to whom leave is denied would be entitled to have his applica~ tion determined by the Court.

3. ‘That when the Court of Appeal held that it could “not agree nore," that in lav, an affidavit in opposition which was filed could not act ac a waiver, the court biedirected itself in law in that such a stép, with full knowledge of noncoupliance with the Rules is a fresh step and go a waiver.

4, ‘That in holding that, "the failure of the Applicant to comply with the statutory requirenents and to fulfil the statutory conditions required for tlie purposes of the intended appeal,” the,Court erred in law in treating an act of non-conplianceas having the effect in law in making an application void rather then merely irregular, and in doing so depriving itself of the capacity to grant consequential relief to

Applicants, or wrongly putting it beyond itself to consider granting such relief. { °

The pages read for this report end here. The judgment continues in the PDF.