AKEREDOLU & ORS. V. AKINREMI

• Pages: 1283-1298

AKEREDOLU & ORS. V. AKINREMI.

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1283

The appellant having lost in the Court of Appeal now appealed to this court

solely against the discretion of the court below which was not exercised in his fa-

vour. There was no appeal against the dismissal of the appeal "having regards to

the merits". It is to be noted that the court below never said it was dismissing the

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appeal for want of prosecution although that could be inferred from their short

judgment as one of the reasons but not the main reason. But the main thing is that

the merits of the appeal were considered by the court below before the dismiss-

al.

The present appeal attacking the discretion of the Court of Appeal in not ad-

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journing the matter has thus been over-taken by event i.e. the dismissal on the me-

rits. Even if the appeal against the exercise of discretion succeeds, this court

cannot remit the case for hearing to the court below which had already dismissed

it on the merits.

The only course open to the appellant was to have filed an appeal against the

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dismissal of the appeal on the merits and file a brief of arguments dealing with the

merit of the case. This he did not do. The court like equity does not act in vain.

No useful purpose will be served by having an appeal against the exercise of its

discretion by the court below if we cannot remit the case to that court for the me-

rits to be heard and determined.

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In the final result, this appeal ought to be dismissed and it is hereby dismissed

with N300.00 costs to the 5th respondent.

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AKEREDOLU & ORS. V. AKINREMI.

AZEEZ AKEREDOLU & ORS.

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V

LASISI AKINREMI

APPELLANTS

RESPONDENT

SUIT NO. SC 187/1985

SUPREME COURT OF NIGERIA

IRIKEFE,

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ESO,

ANIAGOLU,

NNAMANI,

KAZEEM,

KAWU ,

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OPUTA,

22nd November, 1985

C.J.N.

J.S.C.

J.S.0

J.S.C.

J.S.0

J.S.C.

J.S.C.

Civil Procedure - Appeals - Notice of Appeal - Time for filing under S.31(2)(a)

of the Supreme Court Act 1960 - Compilation - Date of delivery of judgment

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to be extended - Interpretation of Statutes (Principles) - Computation of time

to benefit of person affected - Period stipulated in S.31(2)(a) of Supreme

Court Act 1960 for filing appeals - Excludes day on which judgment delivered.

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Words and Phrases - "Three months", in S.31(2)(a) of Supreme Court Act 1960

prescribing period for giving notice of appeal filed from decision in civil case

- Does not include date of delivery of judgment appealed against.

1284

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NIGERIAN SUPREME COURT CASES

[1985] 2 N.S.C.C.

ISSUE:

1. Whether the date of the Judgment of the Court of Appeal should be included

in computing time for the purpose of filing an appeal under the provisions of

S.31(2)(a) of the Supreme Court Act, 1960.

FACTS:

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This case arose in respect of a claim for ownership of a piece of land situate

in Otta, Ogun State, along Lagos/Abeokuta Road. A preliminary question dealing

with the computation of the times and periods prescribed by S.31 of the Supreme

Court Act, 1960 had arisen in this appeal which came from the Court of Appeal,

Ibadan, on a judgment deliverd by that Court, sitting on appeal on a judgment of

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the High Court, Ilaro, in respect of a claim for ownership of a piece of land situ-

ate 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 objec-

tion.

HELD:

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1.

That in computing the period for the filing of the appeal in this matter the date

- 10th April, 1985 - on which the Court of Appeal delivered its judgment must

be excluded. The calculation thus begins on 11th April, 1985 and three months

then must end at midnight of 10th July, 1985. The appeal as a result was not

filed out of time. The day of the happening of the event has to be excluded and

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this has become a principle of general acceptance.

2.

Section 15(2)(a) of the Interpretation Act, 1964 seem to be a powerful pillar in

support of the view that in computing time, the date of the happening of the

event shall be excluded. It provides: A reference in an enactment to a period

of days shall be construed -

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"(a)Where the period is reckoned from a particular event, as excluding the

day on which the event occurs".

3.

"Period of days" referred to in the Interpretation Act 1964 must necessarily

include the use of the words 'month' in an enactment: e.g. the use of the words

"three months' in section 31(2)(a) of the Supreme Court Act.

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CASES REFERRED TO IN JUDGMENT:

1.

Migotti v. Colvill

(1878) 4 C.P.D. 233.

2.

Re North Ex-Parte Hasluck

(1895) 2 Q.B.D. 264.

3.

Marren v. Dawson Bentley &

Co.

Ltd.

(1961) 2 Q.B.D. 135.

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4.

Pritan Kaur v. S. Russel & Sons Ltd.

(1973) Q.B. 336.

5.

Radcliffe v. Batholomew

(1892) 1 Q.B.D. 161.

6.

Gelmini v. Mcriggia

(1913) 2 K.B. 549.

7.

Lester v. Garland

(1808) 15 Ves. 248.

8.

Williams v. Burgess (1840) 12 Ad. & El. 635.

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9.

Young v. Higgor

(1840) 8 Dowl. 212; 6m & W49.

10.Bowaje v. Adediwura

(1976) 6 S.C. 143.

11.Amudipe v. Arijodi

(1978) 2 L.R.N. 128.

12.Re

Railways Sleepers Supply

Co., 29 Ch.D. 204.

13.Dodds v. Walker

(1981) 2 All E.R. 609.

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Chief F.R.A. Williams, S.A.N.

(with him

F.R.A. Williams Jnr.)

for Appellant.

Mr. G.O.K. Ajayi, S.A.N.

(with him,

K. Lalude, K. Oduba

and

Ayo Ogunsola (Miss))

for Respondents.

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ANIAGOLU, J.S.C..

(Delivering the Lead Judgment): 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, lbadan, on a judgment delivered by that court, sitting on appeal on a