Joseph Ewete V Paul Gyang (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This appeal raises yet again the validity or otherwise of an order for leave to appeal on grounds other than of law only from the decision of a High Court in any of the Northern States (in this case, Plateau State) sitting in its appellate jurisdiction to the Court of Appeal. One would have thought that the question raised has been put to rest by the decision of this court in Alhaji Oloyede Ishola v. Memudu Ajiboye (1994) 6 NWLR (Pt,352) 506. This court by majority, decided, inter alia, in that case that in considering an application for leave to appeal, the High Court of Kwara State must be constituted by two Judges of that court as required by section 63 (1) of the High Court Laws of Northern Nigeria, Cap. 49, Laws of Northern Nigeria, 1963 (applicable also in Plateau State). We are now being called upon in this appeal to depart from that decision and to hold that such an order is valid where it is made by a single Judge of the High Court of the State.

This case has a chequered history. The plaintiff, who is now the appellant in the appeal now before us, had in 1988 in the Upper Area Court, Jos, in suit No. JUAC-09cv-1988 sued the defendant, now respondent, claiming –

(a) A declaration that the plaintiff is the rightful and exclusive owner of the property situate at and known as No.T45A Laranto Village, Jos covering a total Area of 0.012 hectares.

(b) A perpetual injunction restraining the defendant, his servant and/or agents howsoever from trespassing into or remaining in occupation of the aforesaid property.

(c) The sum of N4,000.00 being general damages for trespass.”

The case went to trial at the conclusion of which the trial court found for the plaintiff and adjudged:

“I hereby give judgment in favour of plaintiff against the defendant, and declared that plaintiff is the rightful owner of the land situated at and known as No.T45A Laranto covering 0.012 hectares and ordered that the defendant should not trespass or interfere with the said land and whatsoever, and court hereby awarded the sum of N1,500.00 (One thousand five hundred Naira) against the defendant. Court order defendant to pay the cost of action N140.00 plus N100.00 counsel appearance and N30.00 taxi to locus in quo”.

The defendant being dissatisfied with this judgment made fruitless applications to both the High Court and the Court of Appeal to appeal against the said judgment. Still undaunted, he applied to the Upper Area Court, Jos – the trial Court – for an order

“setting aside the judgment of this Honourable Court delivered in this suit on the 12th October, 1988 as well as all other ancillary processes based thereon”

on the grounds that:

“(i) There was a fundamental defect which goes to the issue of jurisdiction and competence of this Honourable court on the days it heard the case and delivered the judgment.

(ii) The judgment was obtained by fraud.”

The application was supported by an affidavit to which there were annexed some documents. The plaintiff also filed a counter affidavit – to which also were annexed the previous judgment and rulings in the matter. After a protracted hearing of the application, the trial Upper Area Court, Jos, granted it and ordered as follows:

“It is ordered that the judgment of this court delivered on the 12th of October, 1988 in suit No. JUAC/09/88 is hereby set aside and the hearing de novo the claim of N44,000.00 for trespass may commence. However, the hearing may commence at the Upper Area Court II Kabong.”

The plaintiff appealed against this judgment to the High Court of Plateau State sitting in Jos. That court (Coram – Atsi and Ogbe, JJ) dismissed the appeal. The plaintiff, being further dissatisfied, applied to the High Court for leave to appeal to the Court of Appeal. The application was heard by Atsi, J. sitting alone, and granted. Following the grant of leave, an appeal was lodged to the Court of Appeal. At the Court of Appeal, the defendant filed a notice of preliminary objection which reads:

“TAKE NOTICE that the respondent shall by way of preliminary objection challenge the competence of this appeal on the grounds inter alia, that the Appellant has not complied with the mandatory requirements of section 221(1) of the Constitution of Nigeria, 1979 as amended in that leave was not obtained before bringing this appeal.

AND TAKE NOTICE that the respondent shall urge that the appeal be struck out.”

The court took arguments from learned counsel for the parties and, in a ruling, upheld the objection and struck out the appeal with costs. It held, per Oguntade, JCA:

“In the final result, I must express that the High Court as constituted on 30/1/95 when it purported to grant leave to the appellant to appeal to this court is not properly constituted, The order granting leave to the appellant is invalid, null and void. The consequence is that there is no valid appeal before this court. See Udekwe Erisi & Ors. v. Uzor Idika & Ors. (1987) 4 NWLR (Pt. 66) 503 S.C. The appeal is accordingly struck out with N500.00 costs to the respondent.”

It is against this decision that the plaintiff has further appealed to this court upon two grounds of appeal which read:

“1. The learned Justices of the Court of Appeal, Jos erred in law when they held:

‘The position now is that whereas section 63(1) as modified imposes that two Judges of the State High Court in Plateau State must seat (sic) when the High Court sits in its appellate jurisdiction to hear appeals from the Upper Area Court, the subordinate legislation relied upon by Mr. G. O. Okafor allows one Judge to sit. It seems to me that the said rules do not apply to the situation when the High Court is sitting in its appellate jurisdiction to hear appeal from upper Area Courts. If however the intention of the makers of the rules in question is to make them apply to that situation, the conclusion I must reach is that the rules are invalid as being ultra vires arising from their inconsistency with section 63(1) of Cap. 49”

Particulars of Error of Law

(1) Section 63(1) of the High Court Law, Cap. 49, Laws of Northern Nigeria application of Plateau State imposes two Judges of the High Court of Plateau State to hear appeals from Upper Area Courts.

(2) But the High (Interlocutory Applications Appellate Matters) Rules made pursuant to section 116 of the High Court Law allows a single Judge to hear interlocutory applications.

(3) Similarly by virtue of Section 238 of the 1979 Constitution, the High Court of Plateau State shall be duly constituted if it consists of at least a single Judge.

(4) Motion for leave to appeal to the Court of Appeal is an interlocutory application.

(5) Both Section 63(1) and the rules made pursuant to section 116 are all existing law by virtue of section 274 of the 1979 constitution.

(6) The rule allowing a single Judge to hear and determine interlocutory application is in conformity with S.238 of the 1979 Constitution and not in conflict with section 63(1) of the High Court Law.

2. The learned Justices of the Court of Appeal, Jos Divisions erred in law when they held as per the lead judgment of Oguntade, JCA that:

“I only need to add here that the pronouncement of the Supreme Court in Ishola v. Ajiboye (supra) applied equally to the High Court of Plateau State when it sits to exercise appellate jurisdiction.”

Particulars of Error of Law

(1) The Supreme Court in the case of Ishola v. Ajiboye did not consider the effect of the High Court (Interlocutory Applications in Appellate Matters) Rules on Section 63(1) of the High Court Laws.

(2) There are two types of appellate jurisdiction:

(i) Jurisdiction relating to Interlocutory Matters.

(ii) Jurisdiction relating to the Substantive Appeal.

(3) While the High Court (Interlocutory Applications in Appellate Matters) Rules provides for a quorum in interlocutory applications, section 63(1) of the High Court Law provides a quorum for the substantive appeal”

and sought the relief that the ruling of the Court of Appeal be set aside and an order that the appeal be heard on its merits by the Court of Appeal.

Pursuant to the rules of this court, the parties filed and exchanged their respective written briefs of argument. In the appellant’s brief the plaintiff in paragraph 5.15 thereof urged us to “expressly overrule its decision in Ishola v. Ajiboye (1994) 6 NWLR (pt.352) 506 and Oladunni Akerele v. Jimoh Alapata (1973) NNLR 138.” Two issues are distilled from the grounds of appeal and they are:

“1. Whether the High Court (Interlocutory Applications in Appellate Matters) Rules, made pursuant to section 116(1) of High Court Law Cap.49, Laws of Northern Nigeria, 1963 (applicable to Plateau State) is ultra vires of and inconsistent with section 63(1) of the High Court Law aforesaid.

2. Whether the pronouncement/decision of the Supreme Court in Ishola v.Ajiboye (1994) 6 NWLR (Pt.352) 506, applies equally to the High Court of Plateau State when it sits to exercise its appellate jurisdiction in INTERLOCUTORY MATTERS”

I shall, however, in my judgment consider the two issues together as each is one side of a coin.

The thrust of the arguments of Mr. Ofodile-Okafor, SAN learned leading counsel for the plaintiff/appellant, both in his written brief and in oral submissions is that the attention of this court was not drawn in Ishola v. Ajiboye (supra) to section 116(1)(o) of the High Court Law of Northern Nigeria (applicable in this case) and the rules made thereunder. It is learned Senior Advocate’s submission that section 63(1) of the Law only provided for the Constitution of the High Court when hearing an appeal whereas section 116 (1)(o) and the rule made thereunder provided for the Constitution of the Court when hearing interlocutory matters in an appeal. He submitted that there was no inconsistency in the two provisions of the Law. Learned Senior Advocate submitted that, in any event, section 63 (1) of the Law was inconsistent with section 238 of the 1979 Constitution (now section 273 of the 1999 Constitution).

Mr. Pinheiro, learned leading counsel for the defendant/ respondent submitted that Ishola v. Ajiboye was rightly decided. He submitted that sections 62 and 63 of the Law were indivisible. He further submitted that the rule made pursuant to section 116(1)(o) was inconsistent with that section. He conceded, however, that by virtue of section 116(1)(o) of the Law, a single Judge of the High Court could sit to hear interlocutory matters in all appeal. Learned counsel argued that no new materials have been put forward to justify this court departing from Ishola v. Ajiboye (supra). He pointed out that section 116 was referred to on page 552 E-F of the report. He urged the court to dismiss the appeal. If Ishola v. Ajiboye (supra) was rightly decided, that would be the end of this appeal. It is, therefore, not surprising that the appellant now urges us to depart from it, moreso that the decision of the court below was based on it. For Oguntade, JCA in his lead ruling with which Edozie, JCA, (as he then was) and Muntaka-Coomassie, JCA agreed, said:

“In this ruling, I must say that I tread a path which has been pre-charted by binding judicial authorities. In Oladunni Akerele v. Jimoh Alapata (1973) NNLR 138, the Supreme Court held that an application to the High Court for leave to appeal against the decision of that court in the exercise of its appellate jurisdiction is made to the High Court in its appellate jurisdiction. And in Ishola v. Ajiboye (1994) 7-8 SCNJ 1, the Supreme Court held that section 63(1) of the High Court Law, Cap. 49, Laws of Northern Nigeria, 1963 is not inconsistent with section 238 of the Constitution of the Federal Republic of Nigeria. As an existing Law, the High Court of Kwara State is enjoined to observe it. It was further decided that the High Court of Kwara State in the exercise of its appellate jurisdiction to hear and determine appeals from Upper Area Courts must be constituted of two Judges of the High Court. I only need to add that the pronouncement of the Supreme Court in Ishola v. Ajiboye (supra) applies equally to the High Court of Plateau State when it sits to exercise its appellate jurisdiction.”

Before I proceed further with this judgment, I think this is the appropriate stage for me to set out the relevant provisions of the law that come for consideration.

(i) Constitution of the Federal Republic of Nigeria, 1979:

“238.- For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.

………………………………………”

(ii) High Court Law of Northern Nigeria, Cap. 49:

“Section 62: The High Court shall have jurisdiction to hear appeals (other than appeals in respect of matters which are the subject of the jurisdiction of the Sharia Court of Appeal) from grade A and grade A limited native courts and Provincial Courts.

Section 63(1): In the exercise of its jurisdiction under section 62 the High Court shall be constituted of three members two of whom shall be Judges of the High Court and one of whom shall be a Judge of the Sharia Court of Appeal.”

Section 116(1)(o): The Chief Justice with the approval of the Governor may make rules of court for carrying this Law into effect, and in particular for all or any of the following matters –

(o) prescribing what part of the business which may be transacted and of the jurisdiction which may be exercised by Judges of the High Court in chambers may be transacted or exercised by registrars or other officers of the High Court, and for providing that any interlocutory application to be made in connection with or for the purpose of any appeal or proposed appeal to be heard by the court shall be heard and disposed of before a single Judge;”

(Italics are mine)

(iii) “The High Court (Interlocutory Applications in Appellate Matters) Rules

The High Court (Interlocutory Applications in Appellate Matters) Rules:

(Section 116)

Date of commencement: 2nd February, 1956

1. These rules may be cited as the High Court (Interlocutory Applications in Appellate Matters) Rules.
2. Every interlocutory application in connection with or for the purpose of any appeal or proposed appeal to be heard by the High Court may be heard and disposed of before a court constituted either of not less than two Judges or a single Judge.”

(Italics are mine for emphasis)

I must quickly correct the submission of Mr. Pinheiro, learned leading counsel for the defendant that sections 62 and 63(1) are not divisible. From the provisions of the two sections above, it is clear that while section 62 confers appellate jurisdiction on the High Court to hear appeals from the courts stated therein, section 63(1) deals with the composition of that court when hearing such appeals. These are two different things. And by the decision of this court in Oloriegbe v. Omotesho (1993) 1 NWLR (Pt.270) page 386, a Judge of the Sharia Court of Appeal no longer sits with the two Judges of the High Court when exercising the appellate jurisdiction conferred by section 62.

It is the submission of Mr. Ofodile-Okafor, SAN that the above rule enables a single Judge of the High Court to entertain an interlocutory application in an appellate matter, such as application for leave to appeal as in the case on hand. Learned Senior Advocate further submitted that as the rule was made pursuant to section 116(1)(o) of the Law, it is valid and is not inconsistent with section 63(1) which, according to learned Senior Advocate, only applied to the actual hearing of an appeal. He further argued that as section 238 of the Constitution allowed for a single Judge to constitute a High Court, the Constitution of the High Court of Plateau State in granting leave to appeal in this matter was in line with the 1979 Constitution and that it was section 63(1) that was inconsistent with the Constitution.

I find the argument of learned Senior Advocate rather plausible but not convincing when looked into indepth. It is beyond argument that the High Court Law, Cap. 49, Laws of Northern Nigeria, 1963 is an existing law within the meaning of that expression in section 274 of the 1979 Constitution which was in force at all times relevant to the case on hand. I can see no inconsistency between sections 63(1) and 116(1)(o) of the Law. While section 63(1) deals with the Constitution of the High Court when sitting to hear an appeal, section 116(1)(o) and the rule made thereunder deal with the composition of the court when sitting to hear an interlocutory application in an appeal to be heard by the court. That being so, I agree with the learned Senior Advocate that the High Court of Plateau State is properly constituted by a single Judge of that court when sitting to hear an interlocutory application in an appeal yet to be heard by that court.

Such an interlocutory application, in my humble view, would be an application for extension of time, to amend notice of appeal, to add to the grounds of appeal and for substitution of parties. An application for leave to appeal to the Court of Appeal will not, in my respectful view, be an interlocutory application in an appeal to be heard by the High Court. Such an application is brought after the appeal before the High Court might have been determined. An application for leave to appeal from high Court sitting in its appellate jurisdiction to the Court of Appeal is an interlocutory application in the appeal to the Court of Appeal and not one in an appeal to the High Court from a lower court. The High Court (Interlocutory Application in Appellate Matters) Rules will only apply to appeals brought from lower courts to the High Court and not to appeals from the High Court to the Court of Appeal. Appeals from the High Court, whether sitting in its original or appellate jurisdiction to the Court of Appeal is a Federal matter and the State will have no jurisdiction to legislate on it. See Fari v. Kano Native Authority (1959) 4 FSC 147 at p.148; (1959) SCNLR 368. Therefore, the High Court (Interlocutory Application in Appellate Matters) Rules being rules of court made pursuant to State Law will not apply to regulate the practice and procedure to be applied in an appeal from the High Court to the Court of Appeal.

The High Court when considering an application for leave to appeal to the High Court sits in its appellate jurisdiction – see Akerele v. Alapata (supra) and must be duly constituted by two Judges of that Court as required by section 63(1) of the High Court Law, Cap.49, [as modified by Oloriegbe v. Omotesho (supra)] – Akerele v. Alapata (supra); Ishola v. Ajiboye (supra).

The conclusion I have just reached is in line with the previous decisions of this court in Akerele v. Alapata and Ishola v. Ajiboye both decisions we are called upon to depart from and overrule. Although this court has the inherent power to depart from its earlier decisions for compelling reasons which proved them erroneous, it will not do so readily or without much hesitation or in the absence of proof that the previous decisions were clearly erroneous and against the public good and welfare – per Obaseki, JSC in Odi v. Osafile (1985) 1 NWLR (Pt.1) 17; (1985) ANLR 20 at p.43. To justify our overruling the previous decisions of this court, it must be clearly shown that such previous decisions are (1) vehicles of injustice and (2) given per incuriam or (3) clearly erroneous in law – see: In re: Sarah I. Adadevoh & Ors. and in the matter of the estate of Samuel Herbert Macaulay (deceased) (1951) 13 WACA 304, 310; Johnson v. Lawanson (1971) I ANLR 56; Odi v. Osafile (supra) and Ishola v. Ajiboye (supra) at page 616, per Uwais, JSC, as he then was.

I agree with Mr. Pinheiro that no new materials have been brought before us to justify our departing from Akerele v. Alapata and Ishola v. Ajiboye we are called upon to overrule in this appeal. Mr. Ofodile-Okafor, SAN says that section 116 and the High Court (Interlocutory Applications in Appellate Matters) Rules are new materials not considered by this Court in Ishola v. Ajiboye. That submission cannot, with respect to learned Senior Advocate, be correct. For in my lead judgment in that case I did say:

“The High Court Law, Cap.49, together with rules of court made pursuant to section 116 thereof governed the practice and procedure applicable in the court.”

In my respectful view, both Akerele v.Alapata and Ishola v. Ajiboye were rightly decided. And by the decision in the latter case, section 63(1) of the High Court Law is not inconsistent with section 238 of the 1979 Constitution; it is valid.

In view of all I have said above, this appeal fails and it is hereby dismissed by me with N10,000.00 costs to the respondent.

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SC.25/1997