Godfrey Ugwuh V. Attorney-general, East-central State & Anor. (1975)

LawGlobal-Hub Lead Judgment Report

G. B. A. Coker, J.S.C.

applicants have applied to this Court by way of Motion for –

“Leave of the Supreme Court to appeal against the Order of the Enugu High Court dated 5th August, 1974 and for such further or other orders as the Supreme Court may deem fit to make in the circumstances.

AND further take notice that the grounds of this application are:-

1. The respondents/applicants were dissatisfied with the order of Enugu High Court dated 5th August, 1974 in the above suit granting the applicant/respondent leave to apply out of time for an order of certiorari.
2. The respondents/applicants, on the 7th day of August, 1974, applied to the Enugu High Court for leave to appeal to the Supreme Court but the Honourable Court, on the 11th November, 1974, made an order refusing leave.
3. The proposed grounds of appeal are contained in Exhibit ‘C’ attached to this motion.”

There is an affidavit of the Deputy Solicitor-General East -Central State in support of the Motion and as that affidavit tells the whole story, we reproduce the important paragraphs of it as follows:-

“1. That I was the counsel for the respondents in the above matter which was an application for an extension of time by the applicant in the above matter within which to apply for an order of certiorari.

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3. That the Honourable Court after hearing arguments from both sides on the 22nd day of July, 1974 made the order sought by the applicant in the above matter the certified copy of the proceedings and the order on the application is annexed hereto and marked Exhibit ‘A’.
4. That the respondents in the above matter, now the applicants, being dissatisfied with the said order and being desirous to appeal against the same to the Supreme Court, applied on the 17th day of August, 1974, to the Enugu High Court for leave to appeal to the Supreme Court.

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7. That the respondents in the above matter now the applicants are dissatisfied with the said order and desire to apply to the Supreme court for leave to appeal against the order of the Enugu High Court dated 5th August, 1974.”

Thus, it is obvious that the applicants are asking for leave of this Court to appeal against an interlocutory order and, as observed by the learned trial Judge who made the order in question –

“The purpose of the present application on notice to the parties is, therefore, to ask the court to enlarge the time stipulated in Order XXII Rule 2 of the High Court Rules to enable the applicant apply for leave ex parte.”

It appears that after the learned trial Judge had granted the application of the respondent, extending the time within which he could apply for the order which he had sought, the applicants applied to the same court for leave to appeal to the Supreme Court and that the application of the present applicants was then refused by the learned trial Judge. The order sought to be appealed was made on the 5th August, 1974, and leave to appeal therefrom was refused to the present applicants on the 11th November, 1974.

The application before this Court now is dated the 23rd November, 1974 and when it first came before us on the 13th January, 1975, we observed that the application was being made ex parte and directed that the respondent should be put on notice. He was apparently thereafter served with a copy of the application and in due course he filed a Notice of Preliminary Objection pursuant to the provisions of Order 7 Rule 14 of the Rules of the Supreme Court and in the following terms:-

“TAKE NOTICE that the respondent herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-

AND TAKE NOTICE that the grounds of the said objection are as follows:-

1. That there is no right of appeal from the High Court of East Central State on an interlocutory decision.”

We therefore heard extensive arguments on the competency of the proposed appeal, the respondent contended that there is no right of appeal to this Court from the High Court of the East-Central State on an interlocutory decision whilst the applicants maintained that there is always such a right of appeal and that the proposed appeal was competent.

Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective appellant that such a right has been or is conferred on him by some statute. Learned counsel for the present respondent, i.e. Godfrey Ugwuh, submitted that the Constitution of the Federation of Nigeria 1963 prescribes no rights of appeal against interlocutory decisions of the High Court and that whereas in pursuance of the privilege created by Section 117(4)(d) of the Consititution, some States had legislated for conferring rights of appeal to the Supreme Court against interlocutory orders, the East-Central State had not done so or at any rate had not properly done so.

Learned counsel for the respondent instanced the case of Lagos State where a right of appeal against an interlocutory order of the High Court is created pursuant to Section 117(4)(d) of the Constitution of Nigeria by the provisions of the Federal Supreme Court (Miscellaneous Provisions) Act 1962 (No. 47 of 1961) and Section 31(2) of the Supreme Court Act of 1960. In any case, learned counsel submitted that no such laws have been enacted by or for the East-Central State of Nigeria. Learned Senior State Counsel for the applicants, i.e. the Attorney-General, and the Public Service Commission, both of the East-Central State, opposed this argument and submitted that there has always been a right of appeal to the Supreme Court against interlocutory decisions of the High Court of the East-Central State.

Learned Senior State Counsel contended that until the making of the High Court Law (Amendment) Edict No.2 of 1975, the position in the East-Central State was governed by Section 3 of the Federal Supreme Court (Miscellaneous Provisions) Law No. 11 of 1962, Laws of Eastern Nigeria, and that since its making, the High Court Law (Amendment) Edict 1975 governs the situation. Edict No.2 of 1975 is dated the 21st January, 1975 and since no specific date for its operation was prescribed (and barring the provisions of Section 3 which we will discuss later on in this Ruling) the effective date of operation is the 21st January, 1975. After reciting the provisions of Section 117(2) and (4) of the Constitution of Nigeria and the creation of the East-Central State, the Edict provides in Section 2 thereof as follows:-

“2. The High Court Law is hereby amended by – replacing Section 35 thereof with the following new section –

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(2) A party aggrieved by any decision, order or ruling made by the High Court in the course of any proceedings or in an interlocutory application in any civil or criminal proceeding before the Court in its original or appellate jurisdiction may with the leave of the High Court or, if leave is refused by that Court, with the leave of the Supreme Court, appeal to the Supreme Court against such decision, order or ruling.”

What the amended Section 35(2) of the High Court Law does clearly is to confer or create a right of appeal to the Supreme Court against the interlocutory decisions of the High Court of the East-Central State. It seems to us also that the provisions of the amended Section 35(2) of the High Court Law would be legally accommodated within the umbrella of Section 117(4)(d) of the Constitution. It is now relevant to see whether the present application can secure the benefit of those provisions.

As stated before, the present application was filed on the 23rd November, 1974 -some two months before the making of Edict No. 2 of 1975. In this connection, however, it is apposite to consider the provisions of Section 3 of the Edict No.2 of 1975. The section reads thus:-

“3. Any application made by any party before the date of commencement of this Edict for leave to appeal to the Supreme Court against any interlocutory decision order or ruling of the High Court, or any leave granted by reason of such application before such date shall be deemed to have been made or granted under subsection (2) of Section 35 of the High Court Law.”

Manifestly, what Section 3 of the Edict purports to do is to back-date the provisions of the amended Section 35(2) of the High Court Law Cap. 61 (Laws of Eastern Nigeria 1963). The section purports to salvage the applications for leave to appeal against interlocutory orders which were either pending or had been granted otherwise than legally granted. It states nothing, as it should have done, concerning applications which had been refused on the postulation that no rights of appeal against interlocutory decisions ever existed. That of course must be the resulting legal position for by ante-dating the Amendment to Section 35(2), such application for leave to appeal already refused would seem to have been wrongly refused.

Before dealing further with the submission of learned counsel, it is necessary to consider the argument of learned Senior State Counsel that before the making of the East-Central State Edict No.2 of 1975, rights of appeal against interlocutory decisions of the High Court of the East-Central State to the Supreme Court existed in virtue of the provisions of the Federal Supreme Court (Miscellaneous Provisions) Law (Eastern Nigeria Law No. 11 of 1962). That law itself is described as a “law to make provisions for the appeal from interlocutory orders and decisions in special cases” and in its signification was aimed not at making any enactment of the State concerned but at amending the provisions of the Federal Supreme Court Ordinance 1960. The operative provisions of the law, i.e. the Eastern Nigeria Law No. 11 of 1962, read as follows:-

“BE IT THEREFORE ENACTED that Section 21 of the Second Ordinance in its application to this Region is hereby amended –

(a) by renumbering the section as subsection (1); and

(b) by inserting immediately after that subsection the following additional subsections –

(2) Where in the exercise by the High Court of its original jurisdiction an interlocutory order or decision is made in the course of a suit or matter an appeal shall by leave of that court or of the Federal Supreme Court as the case may be, lie to the Federal Supreme Court; but no appeal shall lie from an order made ex parte, or by consent of the parties, or relating only to costs.

(3) Nothing in subsection (2) shall be construed so as to authorise an application to the Federal Supreme Court in the first instance for leave to appeal from an interlocutory order or decision made in the course of a suit or matter brought in the High Court.”

Manifestly, the wording of that legislation is in pari materia with the wording of the operating part of the Federal Supreme Court (Miscellaneous Provisions) Act 1961 No. 47 of 1961. But the latter Act is an enactment of the “legislature of the Federation of Nigeria” whereas the Eastern Nigeria Law No. 11 of 1962 is an enactment of the “legislature of Eastern Nigeria”. The constitutional issue which then arises is whether the legislature of a State (or Region) is competent to amend an enactment of the Federal Legislature which the Federal Supreme Court Ordinance 1960 was, and still is. No authority had been cited to us to establish an affirmative answer to this question and indeed learned Senior State Counsel (East-Central State) was constrained to accept the legal soundness of such a contention. We are clearly of the view that the Eastern Nigeria Law No.11 of 1962 is all but competent to amend the Federal Supreme Court Order No. 12 of 1960 which is a federal legislation. The consequence of this is that the Eastern Nigeria Law No. 11 of 1962 was still-born and had never had any real existence. It therefore could not have conferred and did not in fact create any rights of appeal against interlocutory decisions of the High Court of that State to the Supreme Court.

We now return to a further consideration of Edict No. 2 of 1975. On the plain wording of Section 2 of the Edict, the provisions of the Edict take effect as stated by us earlier on in this Ruling as from the 21st January, 1975. As the present application was filed before the date it would ex facie not come within its provisions. The present application would clearly have come, if it should come within any law at all, under the provisions of the Federal Supreme Court (Miscellaneous Provisions) Law, Eastern Nigeria Law No. 11 of 1962. We have already pointed out that that legislation was incompetent and void and so could not sustain the present application. The only way in which it was then sought to save the present application is to employ the provisions of Section 3 of the Edict No. 2 of 1975. We have set out the provisions of that section and it is manifest that if the section is competent then the present application, inasmuch as it postulates that a right of appeal against an interlocutory decision of the High Court of the East-Central State exists, would be competent.

On a close reading of Section 3 of the Edict it is clear that it prescribes a rule of practice and purports to legalise all pending applications no matter the period within which they were filed. Section 31 of the Supreme Court Act 1960 prescribes as follows:-

“31(1) Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by subsection (2) of this section that is applicable to the case.

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are-

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the court below a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the hearing of the application by the court below, to make an application to the Supreme Court.

(4) The Supreme Court may extend the periods prescribed in subsection (2) except in the case of a conviction involving sentence of death.”

Thus, the time for filing an application for leave to appeal against an interlocutory decision is prescribed by the section and stated to be fourteen days from the date of the interlocutory decision concerned and by Section 31(4), the Supreme Court is vested with the powers to extend such periods. The present application contains no prayer for extension of time and no such prayer was asked for at the hearing of this application by the learned Senior State Counsel.

Section 31 of the Supreme Court Act 1960 is expressed to be a rule of procedure and does not confer any right of appeal. A competent legislation of a State creating a right of appeal against interlocutory decisions of the High Court by leave should, as stated before, come within the protection or purview of Section 117(4)(d) of the Constitution of the Federation and as the East-Central State Edict No.2 of 1975 purports to confer such a right of appeal we believe it can only derive its existence as such from the provisions of Section 117(4)(d) of the Constitution of the Federation. That section, so far as it is material, provides thus:-

“117(4) Subject to the provisions of sub-sections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Supreme Court with the leave of the High Court or the Supreme Court in the following cases-

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(d) such other cases as may be prescribed by any law in force in the territory.”

so that when this court is confronted with an application like the present one for leave to appeal against an interlocutory decision, the first thing to do is to see that there is subsisting any “law in force” in the East-Central State which comes within the umbrella of Section 117(4)(d) of the Constitution. If this is established, then this Court would ensure that the application conforms with Section 31 of the Supreme Court Act. Now, at the time of the present application, it was held out that it was competent by virtue of the Federal Supreme Court Act (Miscellaneous Provisions) Law, Eastern Nigeria Law No. 11 of 1962. We have already decided that that legislation as such was incompetent and void. The invalidity of the present application was then dictated not by any laws of the East-Central State but by the Constitution of the country which rejected its cover for the State’s legislation purported to have been made in virtue thereof. It was the duty of this Court to pronounce its incompetency but then Section 3 of the Edict No.2 of 1975 was made on the 21st January, 1975 and purports to alter the character which the Constitution of the country had attached to the application at the time of its filing; the Edict purports to legalise that which by the constitution did not possess the character of legality at the time of its inception. We do not think that the Edict is competent to do this. It can certainly create rights by virtue of the powers vested in the State Government under Section 117(4)(d) of the Constitution; but it certainly cannot amend that section of the Constitution in order to afford retrospective protection to a right which it had created. At the time of its making, Edict No. 2 of 1975 undoubtedly could not in view of the provisions of Section 31 of the Supreme Court Act legalise an application brought under it out of time unless the Supreme Court extended the time for making that application.

Undoubtedly, this Edict No. 2 of 1975 cannot compromise that inability by asking that the date of such an application be pushed back so as to make it pending at the time of its creation. We are clearly of the view that Section 3 of the East-Central State Edict No. 2 of 1975 is incompetent for the purpose for which it is expressed and we so hold.

We accordingly rule that so far as the present application is concerned, at the time of its filing there is no right of appeal against an interlocutory decision of the High Court of the East-Central State to this Court and that this application must and does partake of this legal shortfall. We decide that the present application is incompetent and it is struck out. As the arguments of learned counsel had ranged over an area of the law which is recondite we make no order as to costs.

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Other Citation: (1975) LCN/2019(SC)