Nigerian National Shipping Lines v Abdula Ahmed (SC CIV APP 3 of 1988) [1989] SLSC 6 (17 February 1989)

gba on z s ‘Co ais . oilleetape tee 2/085 00 Sos : : aol af me See. COURT OF*BTERRA LzoNe AR ge ee yah 5 MEE ec Hone. Hee Saaigen SiH. Eatube, c.7, > Presiding ~ # Ral ln. try, dustica'¢.4. Harding, 7.5.C, : A MRLE | Host tsaatustice’A.¥.4, aninor Renner,’ 348.0. 4 3) You Be. nsthee 8,005. Varna, 3.8.0, ° : PISO Vos. no, ssusttee £,0,:"Miempaon-Davie, J.a. 35 Bete Ron Helle BOs 8 os ioe ree TAGERLAN uarronat SHIEFING Liss wep. += APPELLANTS, PR so sites Geant AS sioye sexe symmuectses) ~ aoswoinine Hers er ENS Fe sud: Xasnin Jigucsnenise ‘for appellants’.., Ef ea ee eae SAE, : Bore re We * Ag. Bian Goong Beay fo Homponient i + RTP ooh fi. goons etvemen “as 7% pay oF 08, a, fe RE Sa iets fe espe scxtnos Ge Rasng oak oer of tet ame je tataate iid ‘by: Williams Tobey qebelatne moet es se ei ay (esuakel tox Respontent, ona Hotion brought 1a coumeeh Re ee SF Rpeants, heréiny the Applicant (defendants sae ee ed HE “Wealtpg.Seave! to sppeai sgatnae tne Ruins of esd Mee Tee ia a Oe eae So angie Can Ree att errr aur leas er moe ee maken a): gow CC ae accostaaety oe ig ay RU Se el eerie L'a, contusion su:the’ eaung pF thle dutznonys’ and sod vioatn <pan a I g te 3 Sacatg eoee R | | Betezeubys Z's nbsassiaieatanste te Baepandens Soon a er ee ‘8 A elton deen even dies es ain ee By fetie of partes sLooine/daataea ote, BY hs autry tose-or Bootie taedeest a peaeaiee Niving, Beoneataret, He ae the Sopscntet Hike, fix Gags Am fhe dnstas caney tei | \ge. os Baer te secnties sree Cie. oy > oe CO tinge ths ne ed Ae ee, Ee ene <1 Seip eee gearless Pee ‘tila, Snes" was ade on 6th March, 1986...” ee oe sete) 7) Raat © ee oe es Sey Bee ee ee a

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. ) On 21st April, 1986 defendants entered appearance under protest f.* ‘and filed a Notice of Motion dated 21st April, 1986 seeking to set = , Sside the Judgment in Default of Appearance dated 18th February, 1986 7 = This was struck out with costs on 27th May, 1986. } Another Notice of Motion which was filed, dated 29th May, 1986 | seeking the same remedy was dismisséd with costs on the 16th June, C 1986 by Adophy J. (as he then was). | Leave to appeal against the said decision. On the 11th day of July, } "1986 the application for leave to appeal was refused. i Gonsequent upon the aforesaid refusal, the defendants on the e 25nd July, 1986 applied to the Court of Appeal for leave to appeal i against tho decision of the lligh Court dated 16th June, 1986. fe, When the application caze up for hearing on 29th October, 1986 i counseh for plaintitt ratsed a prolisinasy ebjection, by mummatting |. that the Court of Appeal lacked jurtediction Go./entertain the said } "application, which im his’ eubaission vas out of tine, thus depriving [7 ‘that Court of jurtediction. Couisel for plaintice grounded his la submission on Rules 10 (1) and 10 (4) of the Court of Appeal Rules & 1985 Public Wotice No. 29 of 1985. he f Defendants’ application ivas dismissed by the Court of Appeal on j 2800 day of Novenbery

986. Tn enivening the uatag of the éourt of | Appeal, Wititens JAS Hay this to says, : t "The. application before this court was I ated 25rd Juty, 1986. Tt ta tor tears” ; f to appoat agninet the decision of the ' \ High Court’ delivered on the 16th day of i at Juné, 1986." Clearly such an application Bae | \ is out of time in that it was made 36 days we \ after the date on which the decision of Je \ ; 26 Hen Gout van aetiord. thae te no GL : spplication befoze this Court tor enlarge- 7 \ nont of time within witch to apply for ig 8 | : \. leave to appeal." xg of bs . i fea i\ : 1s

5 i C Be Et ‘ Y "In view of the authorities on the matter, foe, the failure of the applicants to comply Ss with the statutory requirements and to is ae fulfil the statutory conditions requisite ! for the purposes of the intended appeal, @eprived this court of any jurisdiction to hear the application".

i It is against that Ruling that defendants have appealed to this court on the following grounds, which I tind somehow tedious to set out in full, but for a clear understanding of defendants’ complaints in this appoal, I am constrained to set then out in extenso. ‘The

4 following constitute defendants' grounds of Appeal.

| 4, That when the learned judge caid, "The application

; vefore this court was dated 23nd July, 1986 it is

for leave to appeal against the decision of the : High Court delivered on the 16th June, 1986 i clearly such an application is out ‘of time in that it was made some 36 days @f¥er the date on which the decision of the High Court was delivered," the i court thereby misconstrued the provision of Rule 10 (1) and 10 (4) of the Court of Appeal Rules, Public Notice Wo. 29 of 1985 in treating the said i ¥ sub-rules cumilatively as requining that after four I wecks after the date of the decision in respect of i which leave to appeal is sought, an applicant who ! has epplied for leave to eppeal in the court below \ within the two weeks stipulated in Rule 10 (1), eS would necessarily first have to apply for enlarge- «ment of time, for leave to appeal, where the court : ; velow has refused the application for leave to : oa appeal, and such a ruling refusing leave fell 7 a outside @ fourteen days after the delivery of the + y decision in respect of which leave to appeal is sought. [#8

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2. In holding aforesaid, that the “Applicant : fs out of tine in that it vas wade sone : 36 days after the date on which the decision of the Count below was delivered," the Court - failed to construe properly or at ali Rule 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 fatied to hold, as in law 4 should that where the Applicant in the High Count had fied his Notice for Leave to appeal within time such an Applicant had complied vith the requirement of Rule 10 (1) and the requirenent for enlangenent of tine in the said sub-rule would no longer spply to wish an Applicant eat thet further, such an Applicant to vhon leave : tis abided wld’ bo enthtled Ge have Mes applidetion detemined by the Court.

3. That when the Court of Appel held that it could “not agree more," that in lav, an affiderit in i opposition vitoh was C12e0a could not act a « waiver, the const kiedizected itestt in tow in . isk ‘nish 6 Salhi lz Leevnetge-ob ton sciphtedin Ns. Heald 40 6 tc0 ee tos oe a male 4, ‘That in holding that, "the failure of the sgpitonat to compay wita the statutory’ require nents end to fulfil the statutory conditions ~~ required for the purposes of the intended appeal," inacOeuct eeceg 4a der £5 Siedting. we act of non-compliance, as having the effect in law in isch, ahha 0th salen ies neil, = Arregular, end in doing oo depriving iteelt of 4 the capacity to grant consequential relief to applicants, or wrongly putting it Deyond itself 4 in te consider granting such relief. {

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