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Chief F. R. A Williams and M. A.Odesanya – for the appellant
Chief O. A. Okenla – for the respondents
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Civil Action – Practice and Procedure – Application of English Rules where local rules silent.
Appeals – Appeals from Customary Courts (WN) to High Court – Enlargement of time within which to file grounds – jurisdiction in Customary Courts Law (WN.) section 48(1), section 50(2); Customary Court Rules 0.18 r2(d) (repealed and replaced by) 4.28 and r.4; High Court (Civil Procedure) Rules, 0.35 r.10.
LEWIS, J.S.C. (Delivering the Judgment of the Court):
This is an appeal from the decision of Madarikan J., in the Ijebu Ode High Court on the 17th of December, 1964, in which he struck out with 20 guineas costs the appeal of the defendant/appellant from the decision of the Ijebu Ode Divisional Grade A Customary Court which had awarded the plaintiffs the sum of £516-6s-2d against the third defendant, the present appellant before us, the other defendants being found not liable in an action in which the plaintiffs claimed:-
The President of the Ijebu Ode Divisional Grade A Customary Court delivered his judgment on the 18th of October, 1963, and the third defendant gave notice of appeal against that decision on the same day, thus acting within the 30 days required by section 48(1) of the Customary Courts Law of Western Nigeria. On the 1st of November, 1963, the Ijebu-Ode Divisional Grade A Customary Court laid down conditions of appeal in the following terms:-
‘The appellant on or before the 11th of November, 1963 shall:
(a) deposit into court the sum of £5 to cover the preparation and transmission of records.
(b) Deposit into court the sum of £45 to meet costs in this court and any possible costs in the High Court.
(c) File a Memorandum of his grounds of appeal.”
In laying down these conditions the Ijebu Ode Divisional Grade A Customary Court was purporting to act in accordance with rule 2 of Order 18 of the Customary Courts Rules of Western Nigeria.
That rule originally read in 1958 as follows:-
“2. Upon receiving the notice of appeal, the clerk of the court shall file the same, and the court shall order as the circumstances of the case may re-quire:-
(a) a deposit of a sum of money by the appellant to cover the costs of making up and transmitting the record of appeal;
(b) a deposit or the entering Into a recognisance with or without sureties, for a sum of money to cover any costs which may have been awarded in the court or which may be awarded in the appeal court;
(c) Where the appellant is appealing against a conviction for willful failure to pay the amount due in respect of a rate, the deposit of the amount which he has been ordered to pay pending the determination of the appeal: and
(d) the filing by the appellant of particulars of grounds of appeal in the court in the Form F (iii) set out in the First Schedule.”
In 1959, however, rule 2(d) had been amended by W.R.L.N. 260 of 2959 to read:-
“(d) the time within which the appellant shall file particulars of grounds of appeal in the court in the Form F (iii) set out in the first schedule.”
and by the same legal notice rule 4 of Order 18 was amended to read:-
“4. If the appeal court is satisfied that an order made under rule 2 has not been complied with, the appeal court shall, unless it extends the time within which to appeal, strike out the appeal and may order the forfeiture of any deposits or recognisances in so far as is appears to the court to be necessary to do ..
On the 15th of October, 1962, rule 2 (d) was deleted by further amending rules contained in W.N.LN. 317 of 1962 and a new rule 2B was inserted which read:-
‘2 B. The appellant shall, within a period of thirty days of the date of the judgment or order from which he is appealing, file particulars of his grounds of appeal in the court in the Form “P (iii) set out in the First Schedule, and shall deposit a copy thereof, free of charge, in the appeal court within the said period of thirty days.”
On the 1st of November, 1963, therefore, when the Ijebu Ode Divisional Grade A Customary Court purported to lay down as a condition of appeal that the appellant should file his memorandum of grounds of appeal on or before 11th of November, 1963, i.e., within 10 days, the power to do this under rule 2 (d) of Order 18 had been taken away and the appellant had the right under the new rule 2B to file his grounds within 30 days of the date of the judgment, i.e., 30 days from the 18th of October, 1963. In fact, however, for reasons which he set out in an affidavit attached to a motion to the Ijebu Ode High Court dated the 2nd of October, 1964, seeking leave to file his memorandum of grounds of appeal out of time no efforts to file these grounds of appeal were made till the 31st of August, 1964, so this did not comply either with the order made or the time laid down in rule 28. In fact, as we have indicated, the purported condition of the Ijebu Ode Divisional Grade A Customary Court to file the grounds of appeal by the 11th of November, 1963 was ultra vires its then power. When the motion came before Madarikan, J., however, the learned trial judge first of all heard argument as to whether he had the power to grant the application to file the memorandum of appeal out of time and then before deciding this he heard arguments on the substance of the appeal, but on the 17th of December, 1964, in a short judgment he held that he had no power to enlarge the time prescribed by Order 18 rule 2B and that Order 18 rule 10 which empowered the High Court to amend or add to existing grounds of appeal was not relevant and accordingly he held that it was unnecessary for him to consider the appeal on its merits and he struck it out.
Now it is to be noted that under rule 4 of Order 18 power was given, if conditions under rule 2 of that order were not fulfilled within time, to strike out the appeal “unless it extends the time within which to appeal:” This wording seems to us somewhat odd as the appeal was already filed and one would have expected the draftsman to have given the court the power to extend the time within which to fulfil the conditions, but, nonetheless, the court was given a discretion. When, how-ever, the power to lay down conditions as to time within which to file grounds of appeal as laid down in rule 2(d) was deleted and the time limit was prescribed in the rule itself in the new rule 2B the effect was that rule 4 could no longer be used to give the court power to deal with memoranda of grounds of appeal out of time as the reference to rule 2 in rule 4 could not have embraced rule 2B without an amendment. We think It likely that this result was arrived at per Incuriam and was never Intended but, nonetheless, It was what was done. We do, however, draw attention to it so that the desirability of a suitable amendment can be considered by the appropriate authority.
Before Madarikan J. and before us it was contended that section 50 (2) of the Customary Courts Law which reads:-
“(2) In the case of an appeal to a court under section 46, 47 or 48, leave to appeal out of time may, upon reasonable cause being shown, be granted by that court upon such terms as it shall consider just.”
would, as this was an appeal under section 48 of that Law, apply and the court could have allowed the memorandum of grounds of appeal to be filed out of time by virtue of ft. Madarikan, J., did not deal with this submission at all in his judgment but in our view, it is not, in fact, well founded. Section 50 (2) is providing for the situation where no appeal at all is filed within time not, as here, where the appeal is filed within time but subsequently the memorandum of grounds of appeal required to be filed within 30 days of the judgment is not filed within time. We do not consider, as Chief Williams for the appellant contended, that section 50(2) can be Interpreted to cover this position.
If, as it appears to us, Madarikan J., was anxious to grant leave if he had jurisdiction, as this would seem to follow from his hearing arguments on the merits of the appeal, he could in our view have allowed the appellant to abandon the appeal before him and to apply for leave to file a notice of appeal out of time under section 50(2) of the Customary Courts Law If he thought, as he did, that he had no jurisdiction to grant the relief sought on the motion before him.
In our judgment, however, although the argument was never submitted to us or to Madarikan J., for reasons which we will now set out Madarikan J. did have the power to extend the time within which to file the memorandum of the grounds of appeal, Section 49(1) (j) of the High Court Law of Western Nigeria (Cap.44) enabled rules of Court to be made:-
“for regulating and prescribing the procedure on appeals from any court or persons to the High Court, and the procedure in connection with the transfer of proceedings from any court to the High Court or from the High Court to any other court.”
and under that power rule 10 of Order 35 of the High Court (Civil Procedure) Rules lays down:-
“10. Where no provision is made by these rules or by any other written laws, the procedure and practice in force for the time being In the High Court of Justice in England shall so far as they can be conveniently applied, be in force in the High Court; provided that no practice which is Inconsistent with these rules shall be applied:’
The Customary Courts Law and rules thereunder would fall within the meaning of the words “or by any other written laws” and provision was not there made for extending the time within which to file a memorandum of grounds of appeal. As there was no provision in respect of it one is taken to the present English Practice and procedure and Order 3 rule 5 of the Rules of the Supreme Court in England (pp 13-14 of the Annual Practice 1967) reads as follows:-
“Extension, etc., of time (0.3. r.5).
5(1) The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.
(2) The court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
(3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.
(4) In this rule references to the Court shall be construed as including references to the Court 0f Appeal:”
In our view as the time within which to file a memorandum of his grounds of appeal was laid down In the Customary Courts Rules themselves then by virtue of the power conferred by rule 5 Order 3 of the Rules of the Supreme Court in Eng-land Madarikan J. would have had power to extend the time to file them on the motion before him. We see no reason why this rule 5 of Order 3 should not equally apply, in its application to Nigeria, as it is convenient to do so and is not inconsistent with the High Court (Civil Procedure) Rules to the Customary Courts Rules as to the High Court (Civil Procedure) Rules. As Lush J. said in Schafer v. Blyth,  3 K. B. 140 at 143 dealing with the then equivalent rule of court:-
‘The object of the rule was to give the court in every case a discretion to extend the time with a view to the avoidance of injustice.”
In the West African Court of Appeal in Ofem Odey v. Ovat Edim of Akam 6 W.A.C.A. 63 it was said at page 64:-
“in spite of these errors and omissions on his part, this court feels that, ff 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 hearing on its merits provided always that no injustice is thereby caused to the other side.”
and we consider this applies equally here. We have kept in mind the case of Ratnam v. Cumarasamy  3 All E.R. 933 where Lord Guest delivering the opinion of the Privy Council said at page 935:
‘The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”
but in our view, there was in this appeal before us evidence on which Madarikan J. could have acted in exercising his discretion to extend the time if he had realised he could do so.
We accordingly allow this appeal with costs to the appellant assessed at 60 guineas in this court and 30 guineas in the High Court and we set aside the decision of the High Court and order that the application to extend time within which to file memorandum of grounds of appeal be granted by extending the time to the 1st of April, 1967. We further order that If this be complied with the appeal be then heard de novo on its merits before a different judge of the High Court of Western Nigeria.