Emmanuel Ogbe V. Chief Justice, East-central State & Ors. (1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
By an application ex parte and dated the 19th December, 1962 the appellant applied to the High Court, Enugu, “for the issue of order nisi to show cause why a writ of certiorari should not be issued to remove into this Honourable Court and quash the judgment of the Chief Justice, Eastern Region delivered in Chambers at Enugu on the 28th day of July, 1962, and for any such order or such orders as the court deems fit and proper.”
The application is supported by an affidavit which describes in some rather meticulous detail the history of litigation between the appellant as representing the people of Amagu-Ugwu Umungeneike Akagbe on the one hand and the 2nd respondent as representing the people of AmaguIbite Akagbe on the other hand over lands which the appellant’s people call “Akani” and which the respondent’s people call “Agu Amagu Ibite.”
According to that affidavit the respondent’s people as plaintiffs had sued the appellant’s people in the Awkunanaw Native Court for “interfering with the plaintiff’s land situate between Nyaba and Ayo Rivers” and on the 18th March, 1957 that court had given judgment in favour of the present respondents who were the plaintiffs therein. The appellant’s people appealed from that judgment to the court of the District Officer, Idi, who by his judgment dated the 3rd May, 1957 upheld the decision of the Awkunanaw Native Court and dismissed the appeal of the appellant’s people.
The appellant’s people thereafter appealed from the Assistant District Officer’s judgment to the Resident who on the 20th June, 1957 allowed the appeal of the appellant’s people and dismissed the case of the respondent’s people as placed before the Awkunanaw Native Court. The affidavit also states that in the meantime the following events occurred:-
(i) The appellant’s people then on the 20th July, 1957 filed Suit No. E/39/57 against the respondent’s people claiming in respect of the same land a declaration of title, damages for trespass and a perpetual injunction.
(ii) The respondent’s people as plaintiffs on the 26th July, 1957 filed Suit No. E/43/57 against the appellant’s people claiming precisely the same remedies as against the appellant’s people in respect of the same land.
(iii) The two cases, i.e. E/39/57 and E/43/57 were both mentioned in the High Court, Enugu on the 20th October, 1958 before Ainley J. who made an order consolidating both for hearing.
(iv) On the 31st January, 1959 pursuant to a preliminary objection to the competence of Suit No. E/43/57 by the appellant’s people on the grounds of res judicata founded on the Resident’s judgment of the 20th June, 1957, Egbuna J. in the High Court, Enugu, struck out that action upholding the plea of estoppel per rem judicatam.
(V) On the 31st January, 1959, Egbuna J., having heard the case of the appellant’s people in E/39/57, dismissed that action but an appeal was lodged by the appellant’s people to the Federal Supreme Court where they won the appeal and obtained an order by the Federal Supreme Court on the 5th April, 1961 for a re-trial of the case.
The affidavit in support of the application further stated that on the 7th April, 1959, the respondent’s people forwarded a petition to the Governor pursuant to the provisions of the Native Courts Ordinance, cap. 142 (Laws of Nigieria, 1948) asking for an extension of the time within which they might appeal from the decision of the Resident dated the 20th June, 1957 to the Governor and for a review of the Resident’s decision. The affidavit further stated that on the 28th July, 1962 the Chief Justice of the then Eastern Nigeria (who was the original 1st respondent to this appeal but was at the hearing of the appeal substituted by the Chief Justice, East-Central State) purporting to act by virtue of section 31 of the Native Courts Ordinance, cap. 142 (Laws of Nigeria, 1948) as amended by the Native Courts (Interim Provisions) Law No. 12 of 1960 (Laws of Eastern Nigeria) granted the respondent’s people an extension of time within which to appeal from the decision of the Resident dated the 20th June, 1957 and allowed the appeal of the respondent’s people thereby giving judgment in respect of this same land to the respondent’s people. The affidavit further stated that on being informed by the respondent’s people that they had already filed a petition for appeal to the Governor, the High Court, Enugu, re-hearing Suit No. E/39/57 at the instance of the appellant’s people, had had to adjourn the hearing of the case sine die pending authoritative information as to the outcome of that appeal.
Also attached to the application of the appellant’s people is the usual statement in support thereof showing, inter alia, the grounds on which the relief by way of certiorari was sought as follows:-
“(a) The Chief Justice had no jurisdiction in the matter as the purported appeal by the plaintiff was neither pending before the then Governor nor the Chief Justice.
(b) That the purported judgment of the learned Chief Justice was an empty judgment and of no effect in that before he exercised his powers under the Native Courts Ordinance and the Native Courts Interim Provisions Law No. 12 of 1960 there had been already an existing order by this Honourable Court on the 21st day of January, 1959 which stopped the plaintiffs from further putting up a claim oftitle and possession in respect of this land in dispute.
(C) That the learned Chief Justice could no longer exercise his powers under the Ordinance to try the matter in Chambers in the absence of the parties in view of the fact that the matter is still pending openly before this Honourable Court.”
On the 27th September, 1963 and by order of that date the High Court, Enugu (W. J. Palmer J.) made an order nisi for the issue of certiorari and ordered a return date when the respondent’s people should appear and show cause. On the return date, the parties appeared before the court. In support of the order nisi learned counsel for the present appellant urged the points in his affidavit and on the statement attached to the application showing the grounds on which the relief by way of certiorari was sought by him. Learned state counsel who then appeared for the Chief Justice (now 1st respondent) whilst conceding that at the time when the Native Courts (Interim Provisions Law) No. 12 of 1960 came into force, there was no appeal by the respondent’s people pending before the Governor yet contended, firstly that certiorari would not lie against a judgment of the Chief Justice in the circumstances and, secondly that by virtue of section 37 of the Native Courts Ordinance, cap. 142, the Chief Justice was always entitled, as he did, to enlarge the time within which to lodge an appeal to the Governor or himself.
Learned counsel for the respondent’s people, who are the 2nd respondents to this application, adopted substantially the arguments of learned state counsel on behalf of the 1st respondent, i.e. the Chief Justice, and contended in effect that the Chief Justice was entitled to grant the respondent’s people an extension of time and allow their appeal as he did inasmuch as the High Court, Enugu (Egbuna J.) had only struck out their case No. E/43/57 and not dismissed it. In the course of a reserved judgment, the High Court, Enugu (W. J. Palmer J.) held that the Chief Justice was competent and entitled to make the orders which he had made on the 28th July, 1962 in exercise of his appellate powers; he therefore dismissed the application of the appellant’s people for an order of certiorari and in effect discharged the order nisi with costs.
The appellant’s people have now appealed to this Court. Before us on appeal it was submitted by learned counsel on behalf of the appellant’s people, firstly, that the learned Chief Justice whilst exercising the powers conferred on him by section 3 of the Native Courts (Interim Provisions) Law No. 12 of 1960, was a subordinate tribunal and as such his decisions are subject to certiorari; and that, secondly, in granting the respondent’s people an extension of time to appeal to himself from the Resident’s decision of the 20th June, 1957, and then allowing their appeal on the 28th July, 1962, the learned Chief Justice was acting in excess of his jurisdiction or indeed without jurisdiction and that therefore the learned trial judge was wrong to have discharged the order nisi. On the other hand, on behalf of the Chief Justice of the East-Central State, who had been substituted for the original 1st respondent, it was argued that it would be otiose to take the view that the Chief Justice would be constituted into a subordinate tribunal inferior to the High Court and that in any case a benign construction of the provisions of section 70 of the Customary Courts Law, cap. 32 (Laws of Eastern Nigeria, 1963) would make it possible to support the decision of the learned Chief Justice to grant the respondent’s people the extension of time which they had sought and which he had granted them. For the respondent’s people, who were the 2nd respondents before us, it was contended that despite the provisions of section 70(2) of the Customary Courts Law, cap. 32, the Chief Justice still possessed the powers exercisable by virtue of section 37 of the Native Courts Ordinance, cap. 142 (Laws of Nigeria, 1948) and section 13 of the Interpretation Law, cap. 66 (Laws of Eastern Nigeria, 1963) to make the orders which he had made on the 28th July, 1962.
The matter is not free from difficulty and we must express our appreciation for the skill and industry which learned counsel on all sides had freely bestowed on their consideration of the matter and exercised in the presentation of their respective arguments.
To start with, the issue must be resolved as to whether the court constituted by the learned Chief Justice in the capacity in which he gave his decision of the 28th July, 1962 was a subordinate court to which certiorari proceeding would apply. Before the amendments introduced by the Native Courts (Interim Provisions) Law No. 12 of 1960, appeals in native court cases lay from the Resident to the Governor and indeed section 31 of the Native Courts Ordinance, cap. 142 (Laws of Nigeria 1948) provides as follows:-
“31. (1) Any person aggrieved by any order or decision of a native court of first instance or a native court of appeal may, where under proviso (ii) of sub-section (1) of section 30 or the proviso to sub-section (2) of the said section the appeal lies to the District Officer or the Resident and subject to proviso (iii) of sub-section (1) of the said section, within thirty days from the date of such order or decision appeal therefrom to the District Officer or to the Resident.
(2) Any person aggrieved by any order or decision of a District Officer, whether made or given upon appeal from a native court of first instance or upon appeal from a native court of appeal, may within
thirty days from the date of such order or decision appeal therefrom to the Resident.
(3) Any person aggrieved by any order or decision of a Resident, made or given upon appeal from a District Officer or from a Native Court or a Native Court of Appeal may within thirty days from the date of such order or decision appeal to the Governor, who may in his discretion after taking such action as he may consider necessary decide the appeal without hearing the parties.”
The position was altered by the Native Courts (Interim Provisions) Law No. 12 of 1960, of section 5 of which provides as follows:-
“5. Section 31 of the Ordinance is amended by substituting for subsection (3) thereof the following new subsections;-
‘(3) Any person aggrieved by any order or decision of a Resident, made or given upon appeal from a District Officer or from a Native Court or a Native Court of Appeal, may within thirty days from the date of such order or decision appeal further to the Chief Justice.
(4) On appeal from any order or decision of a Resident the Chief Justice in Chambers after taking such action as he may consider necessary may decide the appeal without hearing the parties. If he decides to hear the parties he shall order the appeal to be set down for hearing in open court either by himself, or by a judge of the High Court sitting in the Judicial Division in which the Native Court of first instance is situated.
(5) The provisions of subsection (1) of section 24 shall not apply to proceedings before a judge of the High Court consequent upon an order made by the Chief Justice under subsection (4) of this section.’ ”
Thus, by section 31 (3) of the Native Courts Ordinance, as amended, appeals from the Resident would lie to the Chief Justice and the statutory period within which such as appeal might be lodged was fixed at 30 days. By section 31(4) of the same Ordinance, as amended, the Chief Justice may decide the appeal “in Chambers” without hearing the parties; or where he decides that the parties should be heard he shall set down the appeal for hearing in the open court either by himself or by another Judge in the same Judicial Division as the Native Court of first instance. In the same way, section 40 of the Native Courts Ordinance was amended by the Native Courts (Interim Provisions) Law No. 12 of 1960, section 6 of which provides as follows:-
(1) Section 40 of the Ordinance is amended by replacing subsection (2) thereof with the following new subsection:-
‘(2) Upon the appeal being set down for hearing as provided by subsection (4) of section 31, the Chief Justice or the judge, as the case may be, may, if he considers it in the interest of justice to do so, rehear the case. When the Chief Justice or the judge rehears a case he shall do so in accordance with the High Court Rules, 1955.”’
The effect of the above amendment of section 40(2) of the Native Courts Ordinance is that the Chief Justice or indeed a Judge of the High Court before whom an appeal is set down for hearing under section 31(4) may hear the appeal on the records before him or may rehear the case. If he chose the latter course of rehearing the case, then he should do so in accordance with the High Court Rules of 1955 (Eastern Nigeria).
In his consideration of this aspect of the matter, the learned trial judge observed with respect to the status of the court of the Chief Justice thus:-
“Section 40 of the Ordinance as amended by section 6 of the Law provides that the Chief Justice or a Judge may rehear a case and in that case shall do so in accordance with the High Court Rules. That replaces a provision enabling the Governor to order a rehearing by the High Court. It is possible (I do not decide the matter) that at this stage, the Chief Justice or judge might be sitting as the High Court. But the question does not arise here, as that stage had not been reached. The Chief Justice deciding the appeal in chambers without hearing the parties was an ad hoc tribunal and therefore an inferior court so that an order of certiorari will lie. ”
We think that sections 31(3) and 31(4) of the Native Courts Ordinance do not postulate that the Chief Justice should be sitting as a High Court but rather that he should be sitting as an appellate Native Court on a further appeal from the Resident’s court. The Chief Justice was not enjoined except where he rehears the case in the open High Court to adjudicate in accordance with procedures laid down in the Rules of the High Court and indeed if he chose to do so, he could decide the appeal in Chambers and might not hear the parties.In the matter of the Public Lands Acquisition Ordinance (1924) etc. in re Chrispin S. Harding (1945) 11 W.A.C.A. 31 at page 32, Kingdom c.J. delivering the judgment of the West African Court of Appeal observed with respect to a court created ad hoc although presided over by the Chief Justice as follows:-
“It will be seen that the appeal lies from decisions of the Supreme Court and the first question which arises is – Is the decision against which it is desired to appeal a decision of the Supreme Court or is it a decision of a different tribunal The Ordinance under which the proceedings were had is the Public Lands Ordinance, 1924 (cap. 174). By section 16 of that Ordinance cases of disputed compensation for land acquired are to be heard and determined by the Chief Justice upon application made in that behalf, and section 2 of the Ordinance defines the term ‘Chief Justice’ as including ‘any Judge of the Supreme Court of the Colony of Sierra Leone in its civil jurisdiction.’ In section 17 the decision of the case is referred to as ‘the decision of the Chief Justice.’ In the present case the decision is the decision of the Acting Chief Justice, which by reason of section 53 of the Supreme Court Ordinance, 1932 (No. 39 of 1932), is the same thing as the decision of the Chief Justice. If the legislature had intended that the case should come before the Supreme Court and be decided by that Court, no doubt it would have said so, but it did not. Instead it created a special tribunal ad hoc to decide such cases, consisting of the Chief Justice (as defined). No where in the laws is there any provision for appeal from this tribunal and consequently, apart from any other reason, no appeal lies. ”
It was submitted to us by learned counsel for the appellant’s people, that the Chief Justice exercising his appellate powers in Chambers pursuant to section 31(4) of the Native Courts Ordinance (see section 5 of the Native Courts (Interim Provisions) Law No. 12 of 1960) was a subordinate court and that it would in appropriate circumstances be subject to a certiorari. We have come to the conclusion that the submission was well founded and that if the circumstances of the matter justified it an order of certiorari must issue.
We now turn to the merits of the matter and it is sufficient to point out that the facts relied upon by the appellant for the issue of an order of certiorari are contained in the history of the case itself which had been so vividly described in the affidavit in support of the present application. We had earlier on in this judgment stated that on the 27th September, 1963 the High Court, Enugu made an order nisi for the respondents to appear and show cause against the issue of a writ (now order) of certiorari.
Before us it was contended by learned counsel for the appellant’s people that sufficient cause was shown to entitle them to the issue of an order of certiorari and that in any case the respondents had not shown any cause against the issue of such an order. Learned counsel for the appellant’s people also submitted that on the 28th July, 1962, when the learned Chief Justice gave judgment in the purported appeal of the respondent’s people he was not entitled to do so and that he had acted without jurisdiction. We call to mind that the decision of the Resident was given on the 20th June, 1957 and that it had reversed the decision of the Awkunanaw Native Court and that of the District Officer on appeal therefrom. On the 29th November, 1957 the Customary Courts Law, cap. 32 (Laws of Eastern Nigeria, 1963) was passed and section 3(1) of that Law provides as follows:-
“3. (1) By warrant under his hand, the Minister may establish such District Courts as he shall think fit which shall be courts of record and which shall exercise jurisdiction in accordance with this Law, within such limits as may be defined by the warrant, over causes and matters in which all the parties belong to a class of persons who have ordinarily been subject to the jurisdiction of customary tribunals, and reside or are within the area of the jurisdiction of the court; and such warrant shall assign to any District Court thereby established such name as the Minister may think fit.”
By virtue of Eastern Region Legal Notice No. 209 of 1958 (see page B 387 of the Laws of Eastern Nigeria, 1958) the Awkunanaw Customary Court was constituted or established with effect from the 22nd July, 1958. In this connection and for the purposes of the point which we are now considering, reference may as well be made to section 11 of the Customary Court Law, cap. 32. That section provides as follows:-
“11. The Minister may declare that all or any courts established under the Native Courts Ordinance in any specified district or area shall be deemed to be District Courts Grade A or B or County Courts established under this Law, and thereupon the jurisdiction conferred upon such courts under the Native Courts Ordinance shall be deemed to have been conferred upon such courts under this Law and shall be exercised in all respect and may be determined or varied in accordance with this Law and nothing in the Native Courts Ordinance shall apply to any such courts.”
It is necessary to compare section 11 with section 3(1) because it is evident that section 11 makes provisions for cases where instead of establishing new customary courts existing native courts are converted into customary courts for the purposes of the Customary Courts Law. This difference should be borne in mind for section 11 would have no direct bearing on the case in hand as with respect to Awkunanaw Customary Court it was indeed established as from the 22nd July, 1958.
Section 70(1) and (2) of the Customary Courts Law provides as follows:-
“70. (1) Subject to the provisions of subsections (2) and (3) the Native Courts Ordinance shall cease to have effect within the area of the jurisdiction of any customary court established by the Minister under the provisions of section 3 or in any district or area with respect to which the Minister has made a declaration under the provisions of section 11.
(2) Upon the establishment of a customary court under the provisions of section 3 or upon the making of a declaration under the provisions of section 11, any cause or matter which is in accordance with the Native Courts Ordinance pending on appeal before:-
(a) a district officer having jurisdiction under such Ordinance within such district or area, shall be transferred by the district officer to such county court as the Minister shall direct which court shall have jurisdiction with respect to such causes or matter in accordance with this Law; or
(b) a Resident having jurisdiction under such Ordinance within such district or area, shall be dealt with by the Resident in accordance with the provisions of the Native Courts Ordinance; or
‘(c) the Governor, shall be dealt with by the Chief Justice in accordance with the provisions of the Native Courts Ordinance.”
It is clear that section 70(2) deals with the way and manner (and spells that out) in which some pending appeals should be dealt with when the provisions of section 70(1) take effect. Section 70(1) deals with cases in which either a customary court was established (by virtue of section 3 of the Law) or an existing native court was converted into a customary court pursuant to a declaration made to that effect (by virtue of section 11 of the Law). What section 70(1) does say is that with respect of those places coming within the ambit of it the Native Courts Ordinance shall cease to have effect. The provisions in section 70(1) are made and are operative subject to the provisions of section 70(2) and/or section 70(3). Section 70(3) is not relevant to the present enquiry. Section 70(2) describes the position with respect to pending appeals which are, by the provisions thereof, saved and in respect of which transitional arrangements are aptly provided. Learned counsel for the appellant’s people
submitted, and we are in agreement with him, that unless an appeal can be saved and is indeed saved by the provisions of section 70(2) of the Customary Courts Law, cap. 32, to which provisions only section 70(1) is subject, then the clear words of section 70(1) to the effect that the Native Courts Ordinance shall cease to have effect must be given their ordinary and natural meaning and consequence; for, if the Native Courts Ordinance did not apply or if it was not operative the powers created by or under that legislation may not, unless it be expressly provided for, be exercised by anyone.
In this connection it is appropriate to advert to the provisions of sections 7, 8 and 9 of the Native Courts (Interim Provisions) Law, No. 12 of 1960. Sections 7, 8 and 9 provide as follows:- .
“7. The subsection and sections of the Ordinance mentioned in the Second Schedule are repealed.
- Section 70 of the Customary Courts Law, 1956, is amended by substituting in paragraph (c) of subsection (2) thereof the words ‘Chief Justice’ for the word ‘Governor’ where it Occurs.
- All causes or matters which, on the date of coming into operation of this Law, are, in accordance with the Ordinance, pending on appeal before the Governor, shall:-
(a) be as valid and effectual as if they had been filed, commenced or pending under the Ordinance as amended by this Law, and
(b) continue before the Chief Justice under the Ordinance so amended. ”
The sections of the Native Courts Ordinance, cap. 142, repealed by section 7 are 8(3), 12, 13, 15, 18 and 38. Apart from section 38 of the Native Courts Ordinance, cap. 142, the sections expressly repealed by section 7 of the Native Courts (Interim Provisions) Law, No. 12 of 1960 deal with the jurisdiction of the native courts, the exemption of certain persons or classes of persons from such jurisdiction and the accommodation of persons convicted and gaoled by native courts. Section 38 of the Native Courts Ordinance, cap. 142 had given the Governor powers to make rules specifying or limiting the right of appeal from decisions of native courts both in civil and in criminal cases. The only importance of the consideration of the sections now repealed is that such consideration throws some light upon questions as to the status of the court of the Chief Justice when he exercises appellate jurisdiction in accordance with the provisions of the Native Courts (Interim Provisions) Law, No. 12 of
- The Chief Justice was substituted for the Governor, but the erstwhile powers of the Governor were not to be completely transferred to the Chief Justice and although it is expressed in section 8 of the Native Courts (Interim Provisions) Law, No. 12 of 1960 that the “Chief Justice of Eastern Nigeria” is substituted for the Governor wherever that designation occurred in the Native Courts Ordinance, cap. 142 the powers of the Chief Justice were expressly limited and for the avoidance of doubt, those sections of the Native Courts Ordinance to which he would have looked for further powers were repealed. Section 9 deals with, and validates, all appeals which by the 19th August, 1960 (that being the date on which the Native Courts (Interim Provisions) Law No.12 of 1960 came into operation) were pending on appeal before the Governor.
The first point therefore which arises for consideration is whether the appeal of the respondent’s people from the Resident to the Governor under the provisions and in virtue of the Native Courts Ordinance was pending and where it was so pending, when the Customary Courts Law came into operation, i.e. on the 29th November, 1957. We say without hesitation that it was not. The judgment of the Resident was given on the 20th June, 1957 and on the 29th November, 1957 no appeal was yet filed and as on that date (by virtue of section 70 subsection (2) of the Customary Courts Law), there was no cause or matter which was in accordance with the Native Courts Ordinance, cap. 142, pending before the Governor. We are clearly of the view that section 70(1) applies and that the Native Courts Ordinance, cap. 142, had ceased to have effect with respect to matters within the area of jurisdiction of the Awkunanaw Native Court. Section 9 of the Native Courts (Interim Provisions) Law, No. 12 of 1960 validates all “causes or matters” which are pending on appeal in accordance with the Native Courts Ordinance before the Governor on the date when that Law (i.e. the Native Courts (Interim Provisions) Law) took effect, that is to say, on the 19th August, 1960. On that date there was undoubtedly no appeal pending before the Governor within the terms of section 70(2) of the Customary Courts Law. All rights of appeal are statutory and section 31(3) of the Native Courts Ordinance, cap. 142, prescribed a period of 30 days for appealing from the Resident to the Governor. It is clear that section 37 of the Native Courts Ordinance, cap. 142, gives the Governor the power to enlarge the period within which an appeal may be lodged to his court but the powers so to enlarge the period are exercisable only by virtue of the Native Court Ordinance and could only be exercised whilst that Ordinance is in force.
In the case in hand, the learned trial judge dealt with this point in the following passage of his judgment:-
“The first ground on which the petitioners rely is this. When the Native Courts (Interim Provisions) Law came into force on 19th August, 1960 there was no appeal pending before the Governor, but only an application for leave to appeal out of time. Section 9 of the Law only preserves a cause or matter which is actually ‘pending on appeal.’ This is, I think, correct, but the short answer is this. Section 37 of the Ordinance (as amended by the Law) enables the Chief Justice to give leave to appeal out of time. It does not require that there shall be any application for leave. If, therefore, the Native Courts Ordinance applied at all, the Chief Justice had power to give leave. In fact he treated the application to the Governor as an application to him and I see nothing to prevent him from so doing.”
So, the learned trial judge was of the view that as on the 19th August, 1960, there was no appeal properly pending before the Governor, then section 9 of the Native Courts (Interim Provisions) Law, No. 12 of 1960 would not, ex facie, apply: in short, he thought there was nothing for section 9 to validate. The learned trial judge however then decided that there was an application for leave to appeal out of time; that section 37 of the Native Courts Ordinance as amended by section 4 (and the 1st Schedule) of the Native Courts (Interim Provisions) Law gave the Chief Justice the power to grant such leave and that in effect the Chief Justice was competent to grant leave to appeal out of time. The learned trial judge did not consider that on the date of the judgment of the Chief Justice, i.e. the 28th July, 1962, the Native Courts Ordinance, cap. 142, had ceased to apply except in the cases saved by section 70(2) of the Customary Courts Law, cap. 32 and validated by section 9 of the Native Courts (Interim Provisions) Law, No. 12 of 1960. In the course of the judgment which is now sought to be quashed by certiorari, the Chief Justice of Eastern Nigeria on this point observed thus:-
“The judgment of the Senior Administrative Officer was given on the 20th day of June, 1957. On 7th April, 1959 the plaintiff forwarded a petition to the Governor praying for leave to appeal out of time against the judgment of the Senior Administrative Officer.
I have studied the records and the plan and I grant the plaintiffs application for extension of time within which to appeal. I proceed to deal with the appeal.
With respect, the learned Chief Justice of the then Eastern Nigeria did not refer to any authority by virtue of which he was granting as he did the extension of time for which the respondent’s people had asked. If such authority existed at all it must be by virtue of the Native Courts Ordinance, cap. 142. The learned trial judge who had refused the order of certiorari was at pains to consider this vital issue. He stated in the course of his judgment that “if therefore the Native Courts Ordinance applied at all, the Chief Justice has power to give leave.” He did not answer the question which he had posed to himself but proceeded to draw the inference which must and could only have followed from an affirmative answer.
We think that on the date of the judgment, that is the 28th June, 1962, when the Chief Justice of Eastern Nigeria in his appellate/native court jurisdiction granted extension of time to the respondent’s people to appeal to him, he had no authority to do so as the only authority on which he could have acted, i.e. section 37 of the Native Courts Ordinance, had ceased to apply. He therefore acted without jurisdiction and his decision cannot be upheld.
The appellant’s people had contended that his decision of that date was subject to certiorari. We have already held that he acted without jurisdiction in making the order for extension of time to appeal. We are not in any doubt that the appeal which the learned Chief Justice heard and decided on the 28th July, 1962 was saved neither by section 70(2) of the Customary Courts Law nor by section 9 of the Native Courts (Interim Provisions) Law; and that in those circumstances the learned trial judge in the present proceedings should have so held and that he was wrong in discharging the order nisi which was made in these proceedings on the 27th September, 1963.
The decision of the Chief Justice of Eastern Nigeria given on the 28th July, 1962 having been given without jurisdiction in the capacity in which it was given and which is subject to an order of certiorari must therefore be quashed.
The appeal succeeds and it is allowed. We make the following orders:-
(i) The decision of the Chief Justice, Eastern Nigeria, given on the 28th July, 1962 in proceedings numbered appeal No. NCL. 6A/51 is hereby quashed and set aside and this shall be the judgment of the Court.
(ii)The decision of the Resident, Udi, given in the same matter on the 20th August, 1957 is hereby restored.
(iii) The respondent’s people shall pay the costs of the appellant’s people in this appeal which we fix at 104 guineas and the appellant’s costs in the court below which we fix at ten guineas.
(iv) We make on order as to costs in favour of the 1st respondent to this appeal.
SC.235/1966
