QUEEN ex parte CHIEF EMMANUEL ORIEWE v 1. CUSTOMARY COURT, GRADE "A" ILESHA 2. CHIEF DANIEL AIYEGBUSI (Ibadan Suit No. 1/176/61) [1961] NGHC 38 (16 October 1961)

**THE** **QUEEN** **_ex_** **_parte_** **C****HIEF** **EMMANUEL** **ORIEWE** **(APPLICANT)** **_v._** **1.** **CUSTOMARY** **COURT,** **GRADE** **"A"** **ILESHA** **2.** **C****HIEF** **DANIEL** **AIYEGBUSI** **(RESPONDENTS)** **(19****6****1****)** **A****l****l** **N****.L.****R****.** **8****4****0** **Div****i****si****o****n:** High Court (West) **D****at****e** **o****f** **Judgment:** 16th October, 1961 **C****as****e** **Num****b****er:** Ibadan Suit No. 1/176/61 **Before:** Morgan, J. Motion to extend time for hearing of Application for Order of Prohibition. The applicant applied for and was granted leave on the 23rd of May, 1961, to apply for an Order of Prohibition to issue against the First-named respondent. He did not file the Notice of Motion until the 20th of June, and the Motion was not listed for hearing until the 26th of June. It was not actually heard until the 6th of October. At the hearing, it was contended for the First-named respondent that the leave granted to the applicant to make the application had lapsed; as the Motion was not listed within 14 days as required by the Rules of the Supreme Court of Judicature (England) Order 59, rule 5(1). The applicant asked the court to extend the time in his favour. **_HELD_**** _:_** (1) Where leave has been granted to an applicant to apply for an Order of Prohibition, such leave will lapse unless the Motion is listed for hearing within 14 days after the granting of the leave. (2) Where the time appointed or allowed by a Rule of Court for doing an act or taking proceedings has expired, an enlargement or abridgement of the time can be granted only if the matter before the court is still subsisting: but cannot be granted after the matter has lapsed. _Motion_ _s_ _truck_ _o_ _ut._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Manley_ _Estates_ _L_ _imited_ _v._ _B_ _enedick,_ (1941) 1 All E.R. 248. _Whistler_ _v_ _._ _Ha_ _ncock,_ (1878) 3 Q.B.D. 83; 47 L.J.Q.B. 152; 37 L.T. 639; 26 W.R. 211. _W_ _a_ _l_ _l_ _i_ _s_ _v_ _._ _H_ _e_ _p_ _bu_ _r_ _n_ _,_ (1878) 3 Q.B.D. 84.n. _La_ _w_ _ref_ _e_ _rre_ _d_ _t_ _o_ _:__-_ _W.R_ _._ _Ad_ _m_ _inist_ _r_ _atio_ _n_ _o_ _f_ _J_ _ustic_ _e_ _(__Crow_ _n_ _P_ _r_ _oceed_ _i_ _ngs_ _)_ _La_ _w_ _,_ 1959 (W.R. No. 3 of 1960). _O_ _rde_ _r_ _s_ _an_ _d_ _Ru_ _l_ _e_ _s_ _ref_ _e_ _rre_ _d_ _t_ _o_ _:__-_ _Rule_ _s_ _o_ _f_ _th_ _e_ _S_ _u_ _pre_ _m_ _e_ _Cour_ _t_ _o_ _f_ _Jud_ _i_ _cat_ _u_ _r_ _e_ _(En_ _g_ _land_ _)__,_ Order 29, rule 1; Order 59, rule 5(1A), 47; Order 64, rule 7. MOTION to extend time for hearing of Application for Prohibition. _Alak_ _a_ for the Applicant. _Balogun,_ _Crow_ _n_ _Counsel_ _,_ for the Respondents. Morgan, J.-This is an application for an order of Prohibition to issue to Chief D. O. A. Oguntoye, President, Grade "A" Customary Court, Ilesha, prohibiting him from adjudicating on a suit pending before him-Suit No. C.86/60-entitled:- Chief Daniel Aiyegbusi, The Lotun (PLAINTIFF) _ver_ _su_ _s_ Emmanuel Oriewe Dagbaja of Ipetu (DEFENDANT) The application for leave to apply for the order was filed on the 6th May, 1961 and granted on the 23rd May, 1961. The motion praying for the order of prohibition was filed on the 20th June, 1961 and was put in the list for hearing on the 26th June, 1961. After some adjournments it came before the court on the 6th October, 1961 and Mr Odutola for the first respondent submitted that the application for leave to apply for the order lapsed on the 6th June, 1961 and that the motion should be struck out. Mr Alaka for the applicant in reply submitted that leave for extension of time should be granted. Section 5(2) of the _Administration_ _of_ _Justice_ _(Crown_ _Proceedings)_ _Law,_ 1959 (Western Nigeria), provides as follows:- Until rules of court are made by virtue of the provisions of subsection (1) of this section, the procedure for the time being applicable in the High Court of Justice in England in relation to the matters specified in that subsection shall apply in the High Court of the Region _with_ _such_ _adaptations_ _as_ _are_ _necessary_ _for_ _the_ _circumstances_ _of_ _the_ _Region_. And the relevant procedure for the time being applicable in the High Court of Justice in England will be found under Order 59 _R.S.C._ By the provisions of _Order_ 59 _Rule_ 5(1 _A_) _R.S.C._ leave to apply for the order of _prohibition,_ _certiorari_ and _mandamus_ shall lapse unless the notice is put on the list for hearing within fourteen days after leave has been granted. In this case leave was granted on the 23rd May, 1961 and therefore lapsed unless the notice had been put in the list for hearing by the 6th June, 1961. The notice was not filed until the 20th June, 1961 and was not put in the list for hearing until the 26th June, 1961. This motion must therefore be struck out unless it is possible to extend the time within which the notice is put in the list for hearing. On this point _Order_ 59 _Rule_ 47 _R.S.C._ provides that subject to the provisions of this Order the _Rules_ _of_ _the_ _Supreme_ _Court,_ 1883, shall apply, so far as applicable to proceedings to which this Order relates, in like manner as they apply to other proceedings in the Supreme Court. The appropriate rule of the Supreme Court is _Order_ 64 _Rule_ 7 which provides that:- A Court or Judge shall have power to enlarge or abridge the time appointed by these Rules, or fixed by an order enlarging time, for doing any act or taking any proceeding ... and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. Sometime in June 1961 I myself granted, in another matter, an extension of time after the period of fourteen days appointed by _Order_ 59 _Rule_ 5(1 _A_) had elapsed. Upon further reflection and after considering other authorities I am satisfied that the leave granted having lapsed no extension of the time appointed is possible. In my Judgment the test as to whether there is power to enlarge any time fixed by the rules, although the application for the same is not made until after the expiration of the time appointed or allowed, is whether or not the matter before the court is still subsisting or has disappeared. In _Manley_ _Estates_ _Limited_ _v._ _Benedick,_ (1941) 1 All E.R. 248, 251 (C.A.) _Mackinnon,_ _L.J.,_ said:- I think that one would be deleting these words `although the application for the same is not made until after the expiration of the time' from the rule altogether if this suggested point were a good one. Counsel for the respondents relies, and there was reliance below, on cases of a totally different nature, where, after an action was dismissed-and, therefore Judgment entered for the defendant-it was held that the plaintiff could not make an application to enlarge the time in that action, as the action had disappeared. Here the action has not disappeared. It is in existence. One of the cases referred to by _Mackinnon,_ _L._ _J_ _._ upon which reliance was placed in the court below was the case of _Whistler_ _v._ _Hancock,_ (1878) 3 Q.B.D. 83 where a Master made an order under _Order_ 29, _Rule_ 1 dismissing the action for want of prosecution, unless the Statement of Claim were delivered within a week, _Cockburn_ , _C.J.,_ held that the taking out of a summons to set aside the appearance cannot keep the action alive after the period when by operation of the Master's order it was defunct. The authority was followed in _Wallis_ _v._ _Hepburn,_ (1878) 3 Q.B.D. 84. In that action an order was made dismissing it unless a Statement of Claim were delivered within ten days. The time having expired an order was made extending the time for delivering the Statement of Claim. It was held on appeal that there was no jurisdiction to make the second order, the action being dead. Applying this principle to the present case it is my view that although the time appointed by _Order_ 59 _Rule_ 5(1 _A_) may be extended by virtue of the provisions of _Order_ 64 _Rule_ 7 such order cannot be made after the leave granted has lapsed and become defunct or dead. I therefore uphold the objection raised by the learned Counsel for the first respondent and strike out the motion. _Balogun_ _:_ -I ask for costs. I ask for 20 guineas. _Ayoola_ _:_ -I appear for the interested party. We were put on notice by leave of the court. _A_ _laka_ _:_ -The second respondent is not entitled to costs. I agree that the first respondent is entitled to costs. _Co_ _u_ _r_ _t_ _:_ -The second respondent is entitled to be heard on this application and is a proper party. I therefore award fifteen guineas costs to the first respondent and seven guineas costs to the second. _Motion_ _s_ _truck_ _o_ _ut._