J. O. Ojosipe V. John Dada Ikabala & Ors (1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
This ruling concerns an application for:
“(i) An order granting leave to appeal to the Supreme Court from the order of the High Court of Lagos made on Monday, 21st February, 1972 in Suit No. LD/967/71 by the Hon. Mr Justice Lambo notwithstanding that a first application for leave to appeal has not been made to the High Court;
(ii) An order staying all further proceedings in the said Suit No. LD/967/71 pending the determination of the appeal; and
(iii) Such further and or other order or orders as may seem fit in the circumstances. ”
The application was argued extensively before us by learned counsel on both sides of the bar and we think that counsel deserve our appreciation of the very painstaking way in which they had discharged their duties.
We point out, however, that standing on the threshold of the enquiry is the question of procedural competence, the question whether in the circumstances and considering the nature of the application we should adjudicate on it “notwithstanding that a first application for leave to appeal has not been made to the High Court.” The point was indeed canvassed first as a preliminary objection by learned counsel for the respondents who on being asked to raise it in his reply to the arguments of the applicant raised it again as a postliminary observation.
Learned counsel for the respondents referred us to the provisions of section 21 of the Supreme Court Act and submitted firstly that those provisions postulate a refusal of the order for leave by the trial judge but that, otherwise, the provisions with respect to procedure are mandatory and, secondly, that in exceptional circumstances as that which was considered by the Federal Supreme Court in Ojora v. Odunsi [1964] 1 All N.L.R. 55 this Court would be justified or entitled to authorise a departure from a strict adherence to the law.
Learned counsel for the respondents also argued that the circumstances of the present application are not special and that there was nothing to warrant any departure as is being sought by the applicant. On the other hand, learned counsel for the applicant submitted that the case of Ojora v. Odunsi, (supra), decided firstly that this Court is entitled in special circumstances to authorise a departure from the law (not just the Rules of Court), that the fact that the learned trial judge who made the order on appeal would in all probability refuse the order for leave was a special circumstance to justify a departure from the law and that in any case the Rules of the Supreme Court by virtue of having derived their origin from the provisions of section 121 of the Federal Constitution have the same effect as law.
We did say that the matter was argued at length before us and indeed both parties took great pains to demonstrate the merits of their cases. We are clearly of the view, however, that a consideration of the facts or the merits of the matter does not arise until the preliminary issue of procedural competence is settled.Section 21 of the Supreme Court Act provides as follows:
“21 (1) This part shall apply to the exercise of the jurisdiction of the Supreme Court to hear appeals in civil cases.
(2) Where in the exercise by the High Court of Lagos of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Supreme Court, as the case may be, lie to the Supreme Court; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
(3) Nothing in subsection (2) of this section shall be construed so as to authorise an application to the Supreme Court in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court.”
As will be seen, the section relates to the way and manner in which the jurisdiction of the Supreme Court “to hear appeals in civil cases” should be exercised. It is clear that section 21(1) embraces all civil matters in respect of which the Supreme Court proposes to exercise jurisdiction.It is clear that section 21 (2) contemplates that an interlocutory order of the High Court of Lagos should be appealable but only by leave either of the High Court or of the Supreme Court. It is clear that section 21 (3) warns against the presentation of an application for leave to appeal from the High Court of Lagos in the first instance to the Supreme Court. In Ojora v. Odunsi (supra), the court considered the provisions of Order VII, rule 37 of the Supreme Court Rules which provides that when an application may be made either to the court below or to the Supreme Court it shall be made in the first instance to the court below and that the applicant shall be entitled to present the same application to this Court if the court below refused his application. In that matter an appeal had already been filed to this Court and at the time when the applicants therein sought an order extending the time within which they could ask for leave to appeal and for leave to appeal the appeal papers were already in this court. Order VII, rule 37 was canvassed before the Federal Supreme Court in that case and one of the points on which a decision was sought was whether the order being appealed was an interlocutory or a final one. If it was the former, leave to appeal was necessary but if it was the latter no leave was called for. Learned counsel in that case did not ask for leave before filing his appeal and the Supreme Court decided that the matter was clearly one in which it should intervene and in granting leave in the circumstances of the matter the Court gave this clear warning at p. 60 of the report:
“The use of the words ‘shall be made in the first instance’ would seem to make it obligatory on the applicant to apply in the first instance to the court below and this Court has held in practice that on matters dealing with a stay of execution pending an appeal to this Court, such application should first be made to the court below. It is of course eminently desirable that this should be so for the court of first instance is placed in a much better position, having heard the evidence and all matters pertaining to the substantive case, to consider the application. ”
In arguing the application in hand, learned counsel for the applicant was at pains to point out to us our duty under the principles of stare decisis which are a part of our law and by which we are enjoined to follow our previous decisions, including Ojora v. Odunsi (supra). We are in complete agreement with learned counsel on the need to do this and we cannot shut our eyes or ears to the alarming degree of instability which must follow in consequence of our failure or refusal to do this. We are however satisfied that the case of Ojora v. Odunsi is not on all fours with the present one and although we were told by learned counsel for the applicant from the bar that section 21 of the Supreme Court Act was indeed cited by him to the court in argument in that case it is significant that no reference whatsoever was made by the Federal Supreme Court throughout the ruling to that section. The facts of that case constitute special circumstances which in the way they occurred or concurred made the case deserving of special consideration. We do not agree that the fact that the judge judging by the observations he had made in court during the trial and the very nature of his order would as a matter of course refuse an application, is a special circumstance. Rather we think it is a circumstance contemplated by the law, indeed by section 21(3) of the Supreme Court Act.
In the result we conclude that the law must take its course; that the law provides for a procedure by which applications of this type should in the first instance be made to the High Court before coming to this Court and that no special circumstance has been shown which would warrant our authorising a departure from that state of things.
We will not comment on the merits of this matter and must express our regret for deciding to take this course having regard to the elaborate arguments which counsel had placed before us on the merits of this matter. We therefore strike out this application and order that the applicant should pay the costs of the respondents fixed at 7 guineas.
SC.42/72
