The Council Of The University Of Ibadan V N.k. Adamolejun (1967)

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ADEMOLA, C.J.N.

For the avoidance of doubt in regard to appeals in proceedings which were already in existence at the time when the Court of Appeal was set up in what was formerly known as the Western Region of Nigeria, and in order to facilitate further steps which may be deemed desirable in the present circumstances, we have decided to record here briefly our views and decision in the motion before us, spending such time as we shall give full reasons for our judgement.

We are in no doubt that section 35 of the Court of Appeal Edict, W.N., No. 15 of 1967, is inconsistent with the right of direct appeal from the High Court to the Supreme Court under section 117 of the Constitution of the Federation.

The aforesaid section 35 of the aforesaid Edict (No. 15 of 1967) is therefore, in our view, by reason of inconsistency void, pursuant to section 3 (4) of Degree No.1 of 1966.

We are therefore of the opinion that this Court is competent to entertain the present application before it. The appeal, the Area Of Law of the motion before us should, in our view, come to the Supreme Court directly for hearing, and we do hereby grant the prayers sought in this application.

ADEMOLA, C.J.N. (giving the reasons for the decision of the Court)-We now give reasons for allowing the application of the defendants in this matter. Arguments were heard by us on the 12th and 13th June, and on Monday, the 26th day of June, 1967, we delivered our judgement.

The defendants in the above-named matter were aggrieved by the judgement given in the High Court of Ibadan, delivered by Kester, Acting Chief Justice, on1st November, 1966.

On the 4th November, 1966, the defendants filed notice of appeal against the judgement, and on 2nd June, 1967, applied for an order for accelerated hearing of the appeal and for a consequential order directing the Registrar of the High Court of Ibadan to despatch the record of appeal to this Court for the purpose of hearing and determination of the appeal.

The affidavit in support of the motion states, inter alia,that the preparation of the documents to be in the record of appeal has been unduly delayed. The last three paragraphs of the affidavit are as follows:-

‘9. That the composition of the Council of the University of Ibadan had been altered and the new Council consists largely of new members.

10. That Chief Williams has informed me and I verily believe that at its first meeting on the 18th of May, 1967, the new Council decided that necessary application be made for the accelerated hearing of the case involving the plaintiff who was the Registrar of the University at all material times.

11. That to the best of my knowledge, information and belief, the reasons why the Council desires an accelerated hearing are as follows:-

(a) The uncertainty about the validity of the claims of the Registrar against the Council has made it difficult for the largely new members of the Council to come to a final decision of the issue.

(b) The members of the Council are anxious to know the limits of their powers and those of the Vice Chancellor which are in issue in these proceedings.

(c) The members of the Council are anxious to know the extent to which their actions and decisions (and those of other functionaries such as Vice-Chancellor) are subject to the jurisdiction of the Ibadan High Court, particularly having regard to such jurisdiction as is or may be vested in the Visitor of the University.

(d) It is desirable and expedient in the public interest and in the interest of the University and its future administration to have a decision of the highest judicial authority in the land on the questions afore-mentioned.’

On 19th May, 1967, the Military Governor of Western Nigeria made the Court of Appeal (Commencement of Provisions) Notice, 1967 (W.N.L.N. 19/1967) bringing into operation with effect from 1st April, 1967, the provisions of sections 52 and 53 of the Constitution of Western Nigeria, which relate to a Court of Appeal within the Region. On the same day, namely, 19th May, 1967, the Military Governor also made the Court of Appeal Edict, 1967, No. 15 of 1967, which by virtue of section 1 thereof shall be deemed to have come into force on the 1st day of April, 1967. The Edict contains provisions relating to the powers, etc. of the new Court of Appeal. Section 35 makes transitional provisions in relation to pending  appeals from the High Court of the Region to the Supreme Court; it provides in subsection (2), inter alia, that any notice of appeal given before the 1st day of April, 1967, ‘with respect to any proposed appeal (not being a pending appeal) to the Supreme Court … from any decision of the High Court … shall be deemed for all purposes to have been given … with respect to a proposed appeal, … to the Court of Appeal,’ and subsection (4) states as follows:-

‘(4) In this section:-

pending appeal means an appeal which has been entered in the Supreme Court, so however that an appeal shall be regarded as having been entered as aforesaid only where the records thereof have been received in the Supreme Court and entered on the cause list in accordance with the rules of that court.’

The arguments before us turned on whether this appeal should be heard in the Supreme Court directly or whether the effect of section 35 of the said Court of Appeal Edict (hereinafter referred to as the Edict) is that the appeal is to be heard first in the Court of Appeal. Arguing for the defendants/applicants Chief F. R. A. Williams submitted that the appeal should be heard directly in the Supreme Court. Mr Yinka Ayoola for the plaintiff whilst agreeing that accelerated hearing was desirable, opposed the application on the ground that the application could not be entertained in this Court because the appeal must be heard first in the Court of Appeal. We also heard the submissions made by Dr Ajayi, the learned Attorney General of the Western State, and Dr Elias, the learned Attorney-General of the Federation. Before dealing with the arguments advanced before us it is necessary to give a brief statement of the relevant provisions pertinent to this matter. Under section 127 of the Republican Constitution of the Federation of 1st October, 1963, special provisions are made as to Regional Courts of Appeal.

The section reads:-

‘127:-( 1) If by the Constitution or the Legislature of a Region there is established for the Region a Court having jurisdiction to hear and determine appeals in any matter from the High Court of the Region, then- (a) sections 115 and 117 of this Constitution shall have effect, in relation to that matter, as if any reference in those sections to the High Court of the Region were a reference to the Court having jurisdiction as aforesaid and as if the words ‘sitting at first instance’ wherever they occur in section 117 were omitted; and

(b) [This is irrelevant].

(2) Subsection (I) of this section shall come into force on such date as the President may by order appoint; but an order shall not be made under this subsection unless a draft of the order has been laid before both Houses of Parliament and approved by resolution of each House.”

The 1963 Constitution of Western Nigeria provided for a Court of Appeal as an intermediate appellate court between the High Court of the Region and the Supreme Court. We are here concerned with sections 52 and 53 of the Constitution of Western Nigeria. Section 52 states that ‘there shall be a Court of Appeal for the Region’; this is followed by provisions for the constitution of the court, methods of appointment of judges and their tenure of office, and ends with subsection (10) which states that ‘The provisions of this section shall come into operation on such date as the Governor may appoint’. There can be no doubt, however, that it would have been useless for the Governor to bring the court into being without ensuring in advance that he had the necessary approval under section 127 of the Constitution of the Federation herein-before referred to. Section 53 of the Constitution of Western Nigeria sets out the cases in which an appeal shall lie from the High Court to the Court of Appeal.

Now, the question which arises and calls for our consideration is, when a Court of Appeal is set up under an Order made under section 127 of the Constitution of the Federation and the relevant provisions of the Constitution of the Region concerned, what is the effect on appeals-

(a) from decisions of the High Court where notice of appeal to the Supreme Court had been given before the setting up of the Court of Appeal;

(b) from decisions of the High Court given before the setting up of the Court of Appeal where notice of appeal is filed after the Court of Appeal has been set up;

(c) from decisions of the High Court given after the Court of Appeal has been set up where the cause or matter commenced before the Court was set up.

For the applicants Chief Williams prefaced his arguments by referring to the case The Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C. 369 where it was held that although the right of appeal from the Supreme Court of Queensland (Australia) to His Majesty in Council given by the Order in Council of 1860, has been taken away by the Australian Commonwealth Judiciary Act 1903, and the only appeal therefrom now lies to the High Court of Australia, yet the Act is not retrospective, and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away. Counsel submitted that to take the right of appeal to a particular court away from that court is an interference with existing rights of the would-be appellant. We were referred to page 372 of the report where the Privy Council said as follows:-

‘As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded.

On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intend

Other Citation: (1967) LCN/1372(SC)