Coussey, J.A. This is an appeal from the refusal of the Judge of the Supreme Court of the Aba Judicial Division to grant the appellants leave to apply for an Order of Certiorari to have quashed, a decision of the Lieutenant-Governor, Eastern Region, declining to grant leave to appeal.
The appellants were defendants in a suit relating to land in the Mba Itoli Native Court wherein judgment went against them on the 21st February, 1948.
On appeal to the District Officer this judgment was set aside. The Plaintiffs appealed .from the District Officer's decision and the Resident, Owerri Province, on the 12th July, 1951, restored the judgment of the Native Court against the defendants, the present appellants.
Section 31 (3) of the Native Courts Ordinance, Cap. 142, enables a person aggrieved by a Resident's decision to appeal to the Lieutenant-Governor within thirty days of the decision.
The appellants, admittedly out of time, sent a Petition dated 20th November, 1951, to the District Officer for transmission, through the Resident to the Lieutenant-Governor, by way of appeal from the judgment of the Resident.
Grounds of appeal were fully set out in the Petition which concluded with a prayer that the Judgment of the Resident be set aside and title awarded in the Petitioners' (appellants') favour.
The appellants allege that on the 25th February, 1952, they paid to the District Officer, Owcrri, a fee of 5s to enable the District Officer to apply on their behalf for extension of time within which they could appeal. And they aver their belief that the Resident, before forwarding their Petition of appeal to the Lieutenant-Governor, granted the appellants leave to appeal out of time pursuant to section 37 of the Principal Ordinance and Rule 21 of the Native Courts Rules.
The matter came before the Lieutenant- Governor’s Court of appeal on the 20th September, 1952. The minutes read:
“This is an application for leave to appeal out of time from the decision of the Senior “District Officer with Resident's powers, allowing an appeal from the decision of the Assist- “ant District Officer, Owerri Province.
“2. I study the application and find no adequate reason for being out of time. “3. I therefore decline to grant leave to appeal.
C. J. MAYNE, Officer Administering the Government of the Eastern Region.”
Mr J. I. C. Taylor has submitted for the appellants that as they paid a fee of 5s with the Petition, the Resident should have granted the appellants further time within which to appeal and that, by his act in forwarding the Petition to the Lieutenant-Governor's Court, the Resident must be deemed to have granted such extension and that the Lieutenant-Governor therefore erred in refusing leave to appeal.
He prays in aid the maxim "Omnia praesumuntur rite esse acta”.
In my opinion the learned Judge's refusal to grant Certiorari was right.
It was not established that the Resident had granted extension of time to appeal and this cannot be presumed.
The appeal could not come before the Court of the Lieutenant-Governor, being out of time. The Lieutenant-Governor could, therefore, only deal with the Petition as an application for extension of time. This he was empowered to do by virtue of section 37 of the Native Courts Ordinance.
The proceedings before the Lieutenant Governor were therefore regular upon their face there was nothing to establish want of jurisdiction or excess of jurisdiction and therefore nothing to support an Order for certiorari.
It follows that the appeal must be dismissed. There will be no order as to costs as the Respondent has not appeared.
Foster Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.
Appeal dismissed.