Coussey, J.A. The respondents have filed a preliminary objection to the hearing of this appeal on three grounds under rule 21 (1). The third ground is that the appeal was not brought within three months of the decision appealed from.
It is conceded by the appellants’ counsel that the judgment of the Supreme Court is dated the 18th December, 1952, that that judgment affirmed the decision of the Magistrate’s Court and that application for special leave to appeal under section 4 (1) of the West African Court of Appeal Ordinance (Cap. 229) was not filed until the 19th March, 1953, i.e. one day after the three months had expired. But it is contended by learned counsel for the appellants that whereas by rule 14 (1) of the West African Court of Appeal Rules the prescribed period for an appeal against an interlocutory decision or a final decision of the Court below is calculated from the date of the decision appealed against, in the case of an appeal which may be brought by special leave only, as is the case here, the prescribed period is to be calculated, according to the proviso to rule 14 (2) supra, from the date upon which special leave to appeal is granted. He is driven to submit that there is no limit of time in which application for special leave to appeal to this Court may be made to the Supreme Court where it has affirmed the decision of a Magistrate's Court.
It is, to my mind, a startling proposition that where a party has an appeal as of right to this Court from a decision of the Supreme Court the appeal shall not be brought after the expiration of three months from the judgment, but that in the case of a judgment from which an appeal can be taken only by special leave to be granted by the Supreme Court, the appeal may be lodged at any time.
Counsel for the appellants himself appeared somewhat startled at the full implications of this submission and he qualified it to mean that the appeal should be lodged within a reasonable time. His submission still leaves unexplained what is the prescribed period which, according to the proviso to rule 14 (2), shall be Ii calculated from the date upon which special leave to appeal is granted. It cannot mean that In the case of a Judgment requiring special leave to appeal, the date of the application, which according to the submission may be made at any time, “is the determining factor and that the prescribed period, be it fourteen days or three months, is to be calculated from the date special leave is granted.
The short answer to the proposition is section 12 of the Magistrates' Courts (Appeals) Ordinance (Cap. 123), which provides: “Any person aggrieved by the decision of the appeal Court in a civil. case may appeal to the West African Court of Appeal in the same manner as if such appeal were from a decision of the Supreme Court in the exercise of its original civil jurisdiction and the provisions of the West African Court of Appeal Ordinance and the rules made under the provisions of the West African Court of Appeal Order in Council, 1948, shall apply to any such appeal.”
By rule 1 (1) of the Supreme Court (Civil Procedure) (Amendment No.3) , Rules, 1-952, made by the Chief Justice by virtue of section 56 of the Supreme Court Ordinance, it is provided:- “Where an appeal lies from any order or decision of the Court only by leave or special leave of the Court or the Judge making the order or of the West African Court of Appeal any application to the Court or a Judge for leave to appeal shall be made within “fourteen days from the date of the order or decision against which leave to appeal is sought.”
And rule 1 (2) provides that:-
“Application for such leave shall be by notice of motion and shall be supported by grounds of appeal which prima facie show good cause for leave to be granted.”
The appellant did not comply with this rule, therefore grounds 1 and 2 of the preliminary objection are in substance as valid and forceful as ground 3 and this appeal must be struck out, and it is so ordered.
de Comarmond, Ag. C.J. I concur. Stuart, J. I concur.
Appeal struck out.