Claude Nabhan V George Nabhan (1967)

LawGlobal-Hub Lead Judgment Report

BRETT, J.S.C. 

This is an appeal from the decision of the High Court of Western Nigeria granting a decree nisi for the dissolution of the marriage between the parties. No leave to appeal was obtained before the notice of appeal was given, and the respondent submitted that the decision was an interlocutory one and that an appeal did not lie as of right. Counsel for the appellant resisted this submission, but applied orally for leave to appeal and, this Court should accept it, and to give notice out of time, and on a subsequent date counsel addressed the Court on the question whether any appeal lay, even with the leave of the Court, from an interlocutory decision of the High Court of Western Nigeria on a matter contained in the Exclusive Legislative List. The two questions are distinct and the second will only arise if the respondent’s submission on the first is accepted.

In the course of argument reference was made not only to the existing law governing rights of appeal to this court, but to the law as it stood formerly, and we begin by setting out the statutory provisions relating to appeals from a High Court sitting at first instance that have been in force at various times. The Federal Supreme Court was established by the Nigeria (Constitution) Order in Council, 1954 (L N. 102 of 1954) and assumed its functions on the 1st January, 1956. The only right of appeal to the Court conferred by the Order in Council itself was in criminal cases involving a capital sentence (s. 148), and as a transitional measure the right of appeal in other criminal cases and in all civil cases continued to be governed by existing legislation and in particular by the former West African Court of Appeal Ordinance, which appears under the name of the Federal Supreme Court (Appeals) Ordinance as Chapter 67 of the Laws of the Federation and Lagos, 1958. Section 3 of that Ordinance (re-numbered as s.6 in the 1958 edition) reads as follows-

“An appeal shall lie to the court of appeal:

(a) from all final judgments and decisions of a High Court.

(i) given in respect of a claim for a sum of fifty pounds or upwards; or

(ii) determining, directly or indirectly, a claim or question respecting property or any civil right or other matter where such property, civil right or other matter is of the value of fifty pounds or upwards; or

(iii) from any decree nisi or absolute (made by a High Court), provided that no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any party who, having had time and opportunity to appeal from the decree nisi on which such order may be founded, shall not have appealed therefrom; and

(b) by leave of the judge making the order, but not otherwise, from all interlocutory orders and decisions made in the course of any suit or matter;

Provided that no appeal shall lie, except by leave of the court making the order or of the court of appeal-

from an order made ex parte; or

from an order as to costs only; or

from an order made by the consent of the parties:

Provided also (immaterial).”