The following judgments were delivered:-
GARDINER-SMITH, J.
At the outset learned Counsel for the respondent took a preliminary objection. He drew our attention to Rule 10 of the Rules of Court made under the authority of section 12 of the West African Court of Appeal Order-in-Council, 1928, which reads as follows :-
" After three months from. the date of a final judgment or decision application for leave to appeal shall not be entertained by the Court below."
He pointed out that the date of the judgment was the 25th of June, 1930; that the Notice of Motion for Conditional Leave to Appeal was dated the 20th of September, 1930; that this notice stated that the Court would be moved on the 1st of November, 1930; and that the Court was actually moved on 1st November and Conditional Leave granted on that date. He submitted that the application made to the Court below for Conditional Leave was out of time, as, although notice of motion was filed within three months from the date of the judgment, the date on which the notice stated the Court would be moved and the date on which the Court actually was moved, were more than three months after the date of the judgment. In support of his contention he cited the case of Genet v. Schumacher, Full Court, Sierra Leone, Sierra Leone Law Reports page 113, in which it was held that the filing of notice of motion for leave to appeal was not an application for leave to appeal.
Learned Counsel for the appellants pointed out that respondents were represented by Counsel on 12th January, 1931, when (after an extension of the time for complying with the conditions of appeal) final leave to appeal was granted without protest, and submitted that the present objection had been waived. He also referred to Cap. 5, section 12 (1) of the Gambia Laws and pointed out that the notice of appeal was filed during vacation, and that 1st November was the first day after vacation.
We informed Counsel for the respondents that his objection was not sustained and that we would give our reasons later.
In Genet v. Schumacher, McDonnell, Acting .J. said,
" In sections 7, 8, 9 of the schedule (i.e. to the Supreme Court Ordinance) the words' application for leave to appeal' are employed, and the proviso to 9 states that if no sitting of the Full Court occurs within six months of the decision, and a notice to move that Court is given within six months, that motion may be dealt with at the next sitting of the Court."
The effect of a proviso, accor
