3PLR – AZEEZ AKEREDOLU AND ORS. V. LASISI AKINREMI (No. 1)

 

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AZEEZ AKEREDOLU AND ORS.

V.

LASISI AKINREMI (No. 1)

IN THE SUPREME COURT OF NIGERIA

SUIT NO. SC 187/1985

NOVEMBER 22ND, 1985

3PLR/1985/27  (SC)

OTHER CITATIONS

(1986) 2 NWLR (Pt. 25) 710

 

BEFORE THEIR LORDSHIPS

ANTHONY NNAEMEZIE ANIAGOLU, JSC

Kayode eso, JSC

Augustine Nnamani, JSC

Chukwudifu Akunne Oputa, JSC

Saidu Kawu, JSC

AYO GABRIEL IRIKEFE AND nbsp, JSC

Boonyamin Oladiran Kazeem, JSC

 

REPRESENTATION

 

MAIN ISSUES

PRACTICE AND PROCEDURE -Appeal – Filing of appeal – Computation of time to file Interpretation of statutes – AND “Period of daysAND ” referred to in the interpretation Act 1964 – Computation of time for reading judgment

 

MAIN JUDGEMENT

(Reading the Leading Judgment) ANIAGOLU, J.S.C.

A preliminary question dealing with the computation of the times and periods prescribed by section 31 of the Supreme Court Act, 1960, has arisen in this appeal which came from the Court of Appeal, Ibadan, on a judgement
delivered by that court, sitting on appeal on a judgement of the High Court, Ilaro, in respect of a claim for ownership of a piece of land situate in Otta, Ogun State, along Lagos/Abeokuta Road. The respondent says that the appeal was
filed out of time and has raised this by way of preliminary objection.

Judgment of the Court of Appeal was delivered on Wednesday 10th April 1985. Mr. Ajayi, S.A.N., stated that the notice of appeal was filed on 10th July 1985. Chief Williams, S.A.N., although arguing that the three months expiry date for filing the appeal should be the 10th day of July 1985, stated that in fact he filed his appeal on 8th July 1985. I have since checked the file from the Court of Appeal and the records of this court and found the date of filing the appeal to be 10th July, 1985.

Mr. Ajayi, in support of his objection, submitted that the time to appeal under section 31(2) of the Supreme Court Act is “3 calendar months ” and that the Interpretation Act, 1964 made this clear. He argued that 3 calendar months from 10th April 1985 expired on 9th July 1985 and that the appellants were out of time by one day. He relied on Migotti vs. Colvill (1978) 4 C.P.D. 233. He pointed out that the appellants did not file any application for extension
of time to appeal, and that even if they did, there must be an appeal pending to which an application for leave to appeal could be attached. The appellants, he said, made an application for leave to appeal before the Court of Appeal but that was refused by that court. Even that application before that court was filed out of time, therefore, he said, no application was, in law, made.

Chief Williams, in reply, argued that if judgement were given on 10th April 1995, the 3 months period would expire on 10th July 1985. He submitted that a period of one month meant one whole month and not 29 days and a few hours. The day on which the event happened would not usually be included. He submitted that looking closely into decided cases one gathered a pattern of general principles, namely, that

(i)      Where a period of time is prescribed by statute and that period is to be computed by reference to an event which has happened, then the question whether the computation include or excluded, the day on which the event happened would depend on the true intention of the legislature;

 

(ii)     Where the time prescribed is for the benefit of the person affected by the computation, then, as much time should be given as the language of the statute admits. Generally, the computation would always exclude the date on which the event happened;

 

(iii)    When a construction of the time prescribed would work detrimentally against the person affected by the computation then the construction, which avoids the detriment, would be preferred.

 

He relied on In re North Ex parte Hasluck (1895) 2 Q.B. 254 particularly the judgements of Lord Esther M. R. And Rigby, LJ. These principles, he stated, had been applied to the statute of limitation in Marren v. Dawson Bentley AND
Co. Ltd..(1961) 2 Q.B.D. 135 and Pritan Kaur v. S. Russel AND Sons Ltd. (1973) Q.B. 336. He finally submitted that every period of 3 months is a period calculated in days, relying upon the provisions of the Interpretation Act, 1964.
Mr. Ajayi, in replying to Chief Williams’ argument, further submitted, relying on the definition of the word “month ” in section 18(1) of the Interpretation Act, 1964 where it is defined as meaning.

“a calendar month reckoned according to the Gregorian calendar “, that the index of calculation is “month ” and not “days ” and that on that basis, 3 calendar months, calculating from 10th April 1985 when the Court of Appeal
delivered its judgement, would expire on 9th July 1985. In Migotti v. Colvill (supra) the term “Calendar month ” was being interpreted with a view to determining the date for the discharge of a prisoner after the expiration of his
sentence. In that case the prisoner was sentence on 31st October 1878 for one offence for “one calendar month ” and for a second offence for a period of fourteen days, commencing after the expiration of the calendar month. He was
taken into custody on 31/10/1878 and finally released on 14/12/1878. The prisoner claimed to be entitled to be released one day earlier, namely, 13/12/1878. In his judgement, the trial Judge Denman posed the question: what
was the meaning of one “calendar month ” at the time the sentence was passed? He answered it in the following words:

“And I am of opinion that at that time, viz, on the 31st of October, those words meant a month ending on the day in the succeeding months corresponding to the day of the sentence according to the ordinary understanding of the worlds ’this day calendar month.’ ”

 

On appeal to the Court of Appeal all the three Lord Justices, Bramwell, L.J., Brett and Cotton LL.J., agree with Denman, J. Bramwell L.J. at page 237 held:

“The only rule which can be laid down is, that where an imprisonment for a calendar month begins on a day in one month and terminates in another, so many days must be taken from the second month, if there are enough as will bring the time up to the day before that day in the second month which corresponds to the day on which the imprisonment began; that is if the imprisonment began on the 5th it would end at 12 O’clock on the night of the 4th of the following month; if on the 25th it would end on the 24th; if on the 29th it would end on the 28th; that is to say, we must take as many days in the second month as had already passed in the month in which the imprisonment took place before the imprisonment. ”

Brett, L.J., in agreeing, was of the view that the term “calendar month ” was a legal and technical term, which required a legal and technical interpretation. He stated that

 

“The meaning of the phrase is that, in computing time by calendar months, the time must be reckoned by looking at the calendar and not by counting days; and that one calendar month’s imprisonment is to be calculated from the day of imprisonment to the day numerically corresponding to that day in the following month less one. ”

Cotton, L.J. agreed and stated in general that the principle must be that a prisoner sentenced to a calendar month’s imprisonment will never be imprisoned for a greater number of days than there are in the month in which he was
sentenced; that the matter was a question of law and “not a question of measurement of time but of the technical meaning of the words ’calendar month’. ”

Marren v. Dawson Bentley AND Co. Ltd. (1961) 2 Q.B.D. 135 applying Radcliffe v. Batholomew (1913) 1 Q.B. 161 and not following the decision in Gelmini v. Moriggia (1913) 2 K.B. 549 decided that in the computation of the period, under the Limitation Act, 1939, within which the action should be brought, the day of the accident must be excluded. This is in line with section 15(2) of our Interpretation Act 1964.

The same exclusion was applied in In Re North Ex parte Hasluck (supra) where it was held that, under the Bankruptcy Act 1890, if a sheriff was to hold the debtor’s goods seized for 21 days, the day on which the seizure was
made was to be excluded.

It is to be noted that section 31(2)(a) of the Supreme Court Act provides that:

“(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an
appeal against a final decision; “.

The term used is “three months ” and not “three calendar months” as in Migotti v. Colvill (supra). And so, the interpretation applied in Migotti v. Colvill which all the Lord Justices in the case agreed was a technical one, must be strictly restricted to the phrase “three calendar months ” and not applied to the situation in the Supreme Court Act, 1960, in which the term “three months ” is used. It is, however, true that in section 18(1) of the Interpretation Act 1964, the term “month ” is defined as á calendar months ” reckoned according to the Gregorian calendar, and Gregorian calendar is the correction of the Julian calendar made in 1582 by Pope Gregory XIII (See: 5th Ed. The Concise Oxford Dictionary page 540).

But, by section 15(2)(a) of the Interpretation Act, 1964

“A reference in an enactment to a period of days shall be construed: –
Where the period is reckoned from a particular event, as excluding the day on which the event occurs; “.

It would follow that in computing the period for the filling of the appeal in this matter the date – 10th April 1985 – on which the Court of Appeal delivered its judgement must be excluded. The calculation thus begins on 11th April 1985
and three months thence must end at midnight of 10th July 1985.

The one-day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15 (2) of the Interpretation Act, 1964, must be excluded in the computation, on the footing that the appeal was filed on
10th July 1985. The principle of this exclusion of the day of the happening of the event has become a principle of acceptance. Maxwell on Interpretation of Statues 12th Ed. Page 309, citing Lester v. Garland (1808) 15 Ves. 248 and
Re North ex parte Hasluck (supra), has it thus:

“Where a statutory period runs ’from’ a named date ’to’ another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gather from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will included. ”

For the foregoing reasons, I would accept the contention of Chief Williams that the appeal was not filed out of time.

Accordingly, the preliminary objection is not well founded, and is therefore hereby overruled.

 

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