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Auto Import Export v. Adebayo

AUTO IMPORT EXPORT

V

J. A. A. ADEBAYO

( Receiver and Manager, Continental Motors and Engineering Co. Ltd.)

A. O. OBIKOYA & SONS LTD.

NATIONAL BANK OF NIG. LTD.

SUPREME COURT OF NIGERIA

MOHAMMADU LAWAL UWAIS, CJN ( Presided )

SALIHU MODIBBO ALFA BELGORE, JSC

ANTHONY IKECHUKWU IGUH, JSC ( Read the Lead Judgment )

SAMSON ODEMWINGIE UWAIFO, JSC

NIKI TOBI, JSC

SC. 49/1997

FRIDAY, 13TH DECEMBER, 2002

APPEAL - Briefs of argument - Respondent’s brief - Whether notice of preliminary objection to competency of an appeal can be raised therein

APPEAL - Competency of an appeal - Notice of preliminary objection thereto - Whether can be raised in respondent’s brief of argument

APPEAL - Interlocutory and final decisions of Court of Appeal - Statutory periods prescribed for giving notice of appeal in civil cases to Supreme Court - Section 27(2), Supreme Court Act

APPEAL - Notice of appeal - Statutory period of time within which to file appeal - Whether exclusion by Supreme Court Practice Direction of vacation period for computation of period for filing briefs covers same

APPEAL - Preliminary objection - Giving notice of to appellant before hearing of his appeal - Provisions of Order 2 rule 28(1) Supreme Court Rule thereon - Object of


APPEAL - Statutory requirement for filing an appeal - Failure to comply therewith - Effect of on appellate court’s jurisdiction

COURT - Whether entitled to take judicial notice of public holiday - Where the period prescribed within which to do an act ends on a public holiday - Effect

EVIDENCE - Judicial notice of public festivals, fasts and holidays notified in the Federal Gazette or fixed by Act - Duty of court in respect thereof - Section 74(1)(g), Evidence Act

HOLIDAY - Judicial notice of public festivals, fasts and holidays notified in the Federal Gazette or fixed by Act - Duty of court in respect thereof - Section 74(1)(g), Evidence Act

HOLIDAY - Public holiday - An act authorised or required to be done on a day that falls on public holiday - When should be done - Section 15(3) , Interpretation Act

INTERPRETATION - Computation of time - Computation of period within which to do an act - Determination of

INTERPRETATION - Public holiday - An act authorised or required to be done on a day that falls on public holiday - When should be done Section 15(3), Interpretation Act

JUDGMENT AND ORDERS - Judgment or order obtained without service of process - Nullity of - Inherent power of court that made such order or judgment to set same aside

JUDGMENT AND ORDERS - Null order or judgment - Inherent power of court that made such order or judgment to set same aside

PRACTICE AND PROCEDURE - Computation of time - Computation of period within which to do an act - Determination of

PRACTICE AND PROCEDURE - Preliminary objection - Giving of notice of to appellant before hearing of his appeal - Provisions of Order 2 rule 28(1) Supreme Court Rule thereon - Object of

PRACTICE AND PROCEDURE - Public holiday - An act authorised or required to be done on a day that falls on public holiday - When should be done

PRACTICE AND PROCEDURE - Service of process - Fee in respect of Applicant who failed to pay for the service of his application - Onus thereon

PRACTICE AND PROCEDURE - Service of processes - Importance of Failure to serve process - Effect of on the proceedings and the order made

PRACTICE AND PROCEDURE - Service of processes - Party not served with process but against whom an order was made - Option open to

PRACTICE AND PROCEDURE - Supreme Court Practice Direction -

Exclusion of vacation period in computation of period for filing briefs by the said Practice Direction - Whether covers statutory period of time within which to file notice of appeal

Issues:

1.            Whether this appeal was filed within the time prescribed by law and therefore competent.

2.            Whether the Supreme Court may on ground of want of jurisdiction properly set aside its order of 17th November, 1998  made in chambers purporting to regularise the appellant’s appeal filed out of time.

Facts:

This appeal was filed on the 4th day of October, 1996 against the decision of the Court of Appeal, Lagos Division delivered on 1st day of July, 1996. The respondents herein in their briefs of argument raised preliminary objection to challenge the competence of the appeal. They maintained that the appeal is not properly before the court as the notice of appeal was filed out of time on the 4th day of October, 1996 whereas the judgment of the lower court appealed against was delivered on the 1st day of July 1996, and that this is contrary to the provisions of section 27(2) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria 1990, which prescribes three (3) months within which to appeal against a final decision of the Court of Appeal in a civil case.

It was the case of the appellant that the respondents’ notice of preliminary objection is totally misconceived, as the appellant on point of fact filed a motion on notice dated the 20th day of April, 1998 seeking for various reliefs amongst which are: an order for leave to appeal, extension of time within which to seek leave to appeal, extension of time within which to appeal and order deeming as properly filed and served, the notice of appeal dated 4th October, 1996, filed on the same date at the Registry of the Court of Appeal, Lagos Division. The appellant equally maintains that, by an order of the Supreme Court made in chambers on the 17th day of November 1998, the reliefs were granted for which reason the respondents could not be right to suggest that there is no proper notice of appeal or that the appeal is incompetent by virtue of the fact that it was out of time without the leave of court.

The respondents amended their briefs and maintain therein that the appellant’s motion on notice dated 20th April, 1998 was not served on them before the application was heard in chambers and granted, that the non-service of the process on them rendered the orders made thereupon which purported to regularise the appeal null and void.

The appellant finally maintained in his reply to the objection raised in the respondents’ amended brief of argument that the appellant’s notice of appeal which the preliminary objection is challenging, is properly before the court even without any order for extension of time within which to file the appeal because the appeal appealed against was delivered on 1st July 1996  and that a substantial part of the three months within which to appeal fell into the vacation period of the Supreme Court and that it is a common knowledge by nature of the Practice Direction issued by the Honourable Chief Justice of Nigeria that time does not run during vacation in the Supreme Court.

The Supreme Court while treating the appeal considered the following laws section 27(2)(a) Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria 1990 which provides:

“27(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:

(a) 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.”

Section 15(2)(a)(b) & 15(3) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria which provides:

15(2) “A reference in an enactment to a period of days shall be construed:-

(a)           where the period is reckoned from a particular event, as excluding the day on which the event occurs.

(b)          where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.”

15(3) Where by an enactment any act is authorised or required to be done on a particular day and that day is a holiday, it shall be deserved to be duly done if it is done on the next following

day which is not a holiday.”