Application
for extension of time to file
appeal with grounds special
exercise of Court'sdiscretion
under section 8 of the
West African Court of Appeal
Ordinance, 1933
The application was made under
rule 15 of the West African
Court of Appeal Rules and was
misconceived as it can only be
made to the Court below. Owing
to an error on the part of the
legal practitioner no appeal was
filed within the time allowed by
rule 14. Application was made to
Court below to extend time but
no rule was specified and the
Court below as a result
erroneously held that it could
not entertain the application.
Appellant did not appeal against
the dismissal of the motion.
Held:
Following the principle laid
down by the Privy Council in
Kojo Pon v. Atta Fua, Gold
Coast, Privy Council
1874-1928, p.95, that in the
very special circumstances of
this case the Court would
exercise its discretion under
section 8 of the West African
Court of Appeal Ordinance of
1933 to entertain this appeal on
certain conditions.
The facts of
the case are sufficiently set
out in the Order.
W. PtJtmer
br Appellant.
O. O.
Alakija for Respondent.
The following order was giveen
:--
KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
COAST AND GRAHAM PAUL, C.J.,
SIERRA LEONE.
This is an application to this
Court purporting to be made
under rule 15 of the West
African Court of Appeal Rules
for an extension of time to file
the appeal with grounds or for
such other Order as may be just
in the circumstances.
The application under rule 15 is
misconceived, as such
application can only be made to
the Court below, but this Court
is also asked to make such other
Order as may be just.
It is admitted by the would-be
appellant that owing to an error
on the part of the Legal
Practitioner who then
represented him (not the Legal
Practitioner who appeared in
this Court) no appeal was filed
within the time allowed by rule
14 of the West African Court of
Appeal Rules, nor indeed has any
appeal been filed up to date.
The would-be appellant did,
however, make application to the
Court below for an extension of
time within which to file his
appeal. In making that
application he failed (as,
indeed did his Counsel in his
present application to this
Court until he was called upon
to comply with rule 9 of the
Rules) to specify under what
rule he made his application.
The result was that the Court
below evidently overlooked rule
15 of the rules and thinking
wrongly;, owing to an erroneous
interpretation of rule 25, that
it could not entertain the
application, dismissed the
motion.
The would-be appellant might
have appealed against that
dismissal, but did not do so.
In spite of these errors and
omissions on his part, this
Court feels that, if it can
possibly do so, it must
endeavour to give him the
opportunity of obtaining
substantial justice in the shape
of his appeal being granted a
braring on its merits provided
always that no injustice is
thereby caused to the other
side.
This is following the principle
laid down by the Privy Council
in the Gold Coast case of
Kojo Pan v. Atta Fua (Gold
Coast, Privy Council
1874-1928, page 95) in which
Viscount Haldane said:-
Their Lordships wish to Say that
in cases coming before them from
the Dominions of the Crown,
their first consideration always
is to secure, if possible, that
substantial justice is done.
In some cases, e.g. where there
is no jurisdiction, it is not
possible to comply with this
principle. But in the present
case no such obstacle exists and
this Court has the widest
discretion to entertain this
appeal under section 8 of the
West African Court of Appeal
Ordinance, 1933.
In view of the very special
circumstances that one of the
reasons why the appellant,
without the exercise of that
discretion, finds himself unable
to pursue his appeal, is that
his application for an extension
of time was refused by the Court
below owing to a wrong
understanding of its powers, we
have decided to exercise our
discretion under section 8 of
the Ordinance in the appellant's
favour. We accordingly decide
under section 8 of the West
African Court of Appeal
Ordinance to entertain the
appellant's appeal upon the
terms that he files his appeal
in this Court within three days
in Form II of Appendix A to the
Rules and within the same time
serves a copy thereof upon the
Respondent's Solicitor.
Since this is a very special
exercise of the Court's power in
appellant's favour and since the
whole necessity for this Order
arises by his own default or
that of his former Solicitor he
must pay to the respondent
within seven days five guineas
costs of the proceedings upon
his present application.
The payment of these costs
within seven days IS an
additional term to be complied
with by the appellant in order
to secure the entertainment of
his appeal by this Court.