LEGAL PRINCIPLE: APPELLATE PRACTICE — Time for Appeal — Effect of Filing Out of Time Without Extension
PRINCIPLE STATEMENT
Filing an appeal outside the statutory period without obtaining an extension of time is a grave, incurable defect that deprives the appellate court of jurisdiction, regardless of whether objection was taken.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Auto Import Export v. Adebayo & Ors (2002) NLC-491997(SC) at pp. 8–9; Paras C–D.
"It cannot be over emphasised that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly brought before the court will deprive such appellate court of jurisdiction to entertain the appeal. See Kudiabor v. Kudanu 6 WACA 14. In particular, failure to file an appeal within the statutory period of time prescribed by law without obtaining an extension of time within which to appeal in accordance with the provisions of the rules or to comply with the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate court could lawfully entertain. Such irregularity can by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate court of jurisdiction to entertain the appeal and whether or not the irregularity was noticed or that no objection was taken to it is not an argument which can legitimately be put forward with any effect when the matter comes before the court."
EXPLANATION / SCOPE
Filing an appeal out of time without an extension is a fundamental defect that goes to jurisdiction. The appellate court has no jurisdiction to entertain a late appeal. The defect is incurable. The lack of objection does not confer jurisdiction. The principle is based on the statutory nature of appeals. The appellant must comply with the prescribed period or obtain an extension. The court will strike out the appeal. The rule applies to all appeals. The appellant cannot rely on the respondent’s failure to object. The court may raise the issue suo motu. The principle ensures compliance with statutory time limits.