National Employers Mutual General Insurance Association v. J.O. Uchay (1973)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
At the beginning of the hearing of this appeal before us at Enugu on 7th March, 1973, Mr A. Obi-Okoye, learned counsel for the respondent raised a preliminary objection, of which he had duly filed notice, that the appeal was not properly before the court and should be struck out or dismissed. The alleged ground of the objection is that “the purported appeal which was against the decision of the High Court (Enugu) in its appellate jurisdiction was entered direct to this court without leave of the said High Court. ”
After ascertaining from the argument of counsel on both sides that the matter would involve an important question of constitutional interpretation, we decided to refer the constitutional issue to the Full Court sitting in Lagos on 28th March, 1973.
Mr Obi-Okoye submitted before the Full Court that the decision of the High Court of Enugu being appealed from was given in the judge’s appellate jurisdiction in an appeal from a magistrate’s court and that, under subsection 117 (4) (c) of the Constitution of the Federation, leave of the High Court of Enugu must be obtained before the appellant can be heard by the Supreme Court; in other words, appeal does not lie as of right in such a case. Subsection 117 (4 ) (c) provides as follows
“subject to the provisions of subsections (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
(a)
(b)
(c) decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court.”
It was Mr Obi-Okoye’s contention that the appellant must accordingly seek leave either of the High Court of the East-Central State or of the Supreme Court before the appeal could be entertained, and that this is so despite the provision of section 35 of the High Court Law of the East-Central State and, indeed, of the Rivers State and the South-Eastern State, both of which still apply that Law. Now section 35 of the High Court Law provides as follows
“For the purposes of paragraph f) of subsection (2) of section 117 of the Constitution of the Federation, a person aggrieved by a decision of the High Court in a civil appeal in respect of a Regional matter may appeal further to the Supreme Court in the same manner and as if such appeal were from a decision of the High Court in the exercise of its original civil jurisdiction.”
Learned counsel for the respondent argued that this section is inconsistent with subsection 117 (4) (c) of the Constitution and is, therefore, void to the extent of the inconsistency. In support of this submission, learned counsel referred to the following provision of section 1 of the Constitution of the Federation:
“This Constitution shall have the force of Law throughout Nigeria and, if any other law (including the constitution of a State) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”
In enacting section 35 of the High Court Law, the former Eastern Nigeria Legislature purported to have acted in exercise of the power granted to it by subsection 117 (2) (f) of the Constitution of the Federation which provides as follows
”An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases
(f) such other cases as may be prescribed by any law in force in the territory.”
A similar residual provision is contained in subsection 117 (4) (d) as respects cases where leave must be obtained either from the High Court or from the Supreme Court before an appeal can lie to the latter.
Mr. Obi-Okoye contended that the power thus granted under subsection 117 (2) (f) must be exercised in such a way that the resulting State legislation is not in conflict with the express provision in subsection 117 (4) (c). Subsection 117 (2) (f), like subsection 117 (4) (d), could only be interpreted as intended to be merely a safety valve or a residuary device by the framers of the Constitution to take account of situations similar to, that is eiusdem generis with, those expressly enumerated in subsections 117 (2) (a)-(e); and that the same is true of subsection 117 (4) (d) which must be taken to envisage situations eiusdem generis with subsection 117 (4) (a)-(c). Neither subsection could be regarded by any State legislature as authorising it to grant a right of appeal in cases that are not pari materia with those enumerated therein, or that have the effect of setting at nought the express requirement for leave in the circumstances stipulated in subsection 117 (4) ( c).
In this conection, learned counsel for the respondent also referred us to subsection 117 (6) (b) which provides as follows -“Any right of appeal to the Supreme Court from the decision of the High Court of a territory conferred by this section –
(b) shall be exercised in accordance with any Acts of Parliament and rules of court for the time being in force in the territory regulating the powers, practice and procedure of the Supreme Court.”
No Eastern Nigeria legislature could, in purported exercise of powers allegedly given to it under subsection 117 (2) (f) of the Constitution, make a law which purports not only to grant a right of appeal, but also to regulate the procedure by which appeals should come from its High Court to the Supreme Court.
He cited case of C. Jackson Odedina v. Y. M. Fashina & Anor. (1959) 4 F.S.C. 77, in which it was held that, while a Regional (i.e. sic., State) legislature has power by its own legislation to confer rights of appeal to the Supreme Court, it has no power to legislate for, or regulate the procedure applicable in the case of such appeals; and that the provisions of the former Federal Supreme Court (Appeals) Ordinance, now Supreme Court Act, 1960, cannot be abrogated by any Regional or State law. Learned counsel also referred to the recent ruling in Oyeyemi Olowosoke v. Isaiah Oke (1972) S.C. 1 in which the Supreme Court considered subsection 117 (4) (c) along with subsection 117 (2) (a) and held that leave is necessary in the case of any appeal from the Western State Court of Appeal to the Supreme Court.
A further submission of Mr Obi-Okoye is that section 35 of the High Court Law speaks of appeal as of right “in respect of a regional matter” and that, in so far as the present appeal relates to an “insurance” matter which is item 20 of the Exclusive Legislative List and therefore a Federal matter, leave is necessary before the present appeal can be entertained by the Supreme Court, since it is clear that the section does not apply to grant appeals as of right in matters within Federal competence. He, therefore, submitted that, even if we should hold that section 35 is not inconsistent with subsection 117 (4) (c) the present appeal is not properly before us in that it concerns a Federal matter which is not covered by section 35 and which, therefore, requires leave.
Mr Anyamene, learned counsel for the appellant, began by stressing that the main question for determination is the delimitation of the scope of subsection 117 (2) (f) which, he submitted, gives power to a Regional or State legislature by legislation to confer right of appeal as of right, and that any law so made cannot be inconsistence with the Constitution. He argued that this must be so because subsection 117(4) (c) begins with the phrase “subject to the provisions of subsections (2) and (3) of this section”, which he consubsection 117 (2) (f) with the result that any law made under that latter can make provision for appeal as of right.
In support of this submission, he cited Commissioner of Police v. Smart Ededey (1963) 1 All N.L.R. 404 in which the question fell to be considered as to whether the Commissioner of Police had a right to appeal without leave under section 69 of the Magistrates’ Court Law, (Cap. 74) 1959 Laws of Western Nigeria, and it was held that a prosecutor may appeal as of right on a matter of law to the Supreme Court from the appellate decision of the High Court in a criminal case determined by a magistrate. We think that, in so far as the case appears to imply that appeals as of right from the High Court may, be provided for by a State legislature as a general rule under subsection 117 (2) (f) it must be regarded as having been decided per incuriam since there does not appear to be any reference throughout the judgment to subsection 117 (4) ( c), nor was any issue of inconsistency of the relevant State legislation considered in that case. We do not agree with learned counsel’s contention that the opening phrase “subject to the provision of subsection 117 (2)” in subsection 117 (4) makes any law enacted under subsection 117 (2) necessarily valid for all purposes.
It seems quite clear to us that subsection 117 (2) (f) cannot enable a State legislature to go beyond the limits of its legislative powers to make provision for appeals as of right in cases for which subsection 117 (4) (c) expressly prescribes that appeal must be by leave. We are of the view that it would be wrong to regard subsection 117 (2) (f) as conferring powers of delegated legislation upon a State legislature in such a way that the resulting legislation can override the express provision of the constitution in subsection 117 (4) (c). Nor do we think that Obed Boardman v. Sokoto Native Authority (1965) 1 All N.L.R. 214 cited by learned counsel in support of this strange submission does anything of the kind, since the case clearly deals with the question of the circumstances in which, on a refusal by a Higt.
Court to grant bail pending the determination of an appeal to it, the Supreme Court can exercise power to grant leave to appeal from such refusal. As an instance of the legal situation contemplated by subsection 117 (2) (f) where a State legislature can confer a right of appeal by State law, Mr Anyamene referred to the case of Mekwunye v. Director of Audit (W.N.) (1968) N.M.L.R. 169 in which section 207 of the Local Government Law of Western Nigeria and Mid’97Western Nigeria provides for appeals to the High Court from the Director of Audit’s decision in cases involving more than 200 pounds and also confers powers on the High Court of an appellate nature.
It was held by the Supreme Court that proceeding relating to this matter in the High Court are not proceedings before the High Court “sitting at first instance” and that, consequently, there is no right of appeal to the Supreme Court in such a case either under section 207 of the Local Government Law or under subsection 117 (2) (a) of the Constitution of the Federation. The court held that the Director of Audit is not a “court” for the purposes of section 117 of the Constitution. It is relevant to note the following passage at p. 172 of the report of that case
“Dr Elias also referred to paragraph (f) of (2) of section 117 of the Constitution which states that an appeal shall lie as of right.
(f) such other cases as may be prescribed by any law in force in the territory-and pointed out that there was no provision in section 207 of the Local Government Law for an appeal to the Supreme Court. The Court referred to other instances, e.g. The Registration of Titles Act (1958 Laws of the Federation) which provides in section 93 for appeal from the High Court decision given on appeal from the Registrar of Titles.
The Supreme Court in the present case is only concerned with deciding whether the appeal from the High Court can be entertained; in our view it cannot be.”
In his own submission as amicus curiae, Dr Onwuamaegbu, the learned Attorney-General for the East-Central State, pointed out that section 35 (as well as section 38 in respect of criminal appeals) raises a problem which is common to the three Eastern States in which the High Court Law (Cap. 61 Laws of the East-Central State) is the applicable law on the subject; he also referred to sections 69 and 73 of the Western Nigeria Magistrates’ Courts Law as raising similar problems for both the Western and the MidWestern States.
He submitted that subsection 117 (2) (f) must be construed as being eiusdem generis with subsection 117 (2) (a)-(e) which contemplates various situations in which an appeal may lie to the Supreme Court as of right where a High Court has had a case whether civil, criminal or constitutional, or a case involving the death penalty on appeal from some other court. The learned Attorney-General then proceeded to submit that the Eastern Nigeria legislature, like its Western counterpart in respect of its laws already cited, was aware of the powers conferred upon it by subsection 117 (2) (f) and that this is why it expressly limited section 35 of the High Court Law to “Regional matters” defined in section 2 of the Law as matters within Regional or State competence.
We are unable to agree with the learned Attorney-General in this submission since section 35 must still fail as a piece of State legislation which deems a clearly appellate jurisdiction within the meaning and intendment of subsection 117 (4 ) (c) to be jurisdiction at first instance within the framework of subsection 117 (2) (f). A State legislature cannot enact a law under certain purported powers in the Constitution to convert a clearly expressed provision for a right of appeal only by leave into a right of appeal as of right.
We consider that subsection 117 (2) (f) envisages a right of appeal in High Court proceedings at first instance, whereas subsection 117 (4) (c) clearly envisages cases in which the High Court has exercised its appellate jurisdiction. We do not, therefore, see why the phrase “subject to” in the latter subsection necessarily implies its subservience to the quite separate and independent provision in subsection 117 (2) (f). Both subsections are complementary and are necessarily so; and any attempt by a State Law to make provision under subsection 117 (2) (f) which is inconsistent with the provision of subsection 117 (4) ( c) that expressly requires appeals to be with leave, must be regarded as void as against section 1 of the Constitution of the Federation.
We, therefore, thought that Mr Obi-Okoye’s preliminary objection is well founded and that leave either of the High Court or of this Court is necessary before the appeal can be heard, and we ruled accordingly when the appeal was heard on 28th March, 1973. We now give our reasons for so doing.
By this ruling we wish to declare, for the avoidance of doubt, that we think that sections 35 and 38 of the High Court Law of the East-Central State are inconsistent with subsections 117 (2) (f) and 117 (4) (c) of the Constitution of the Federation and are void in so far as they make provision for appellate cases to be deemed cases at first instance, thereby turning all cases requiring leave to appeal into those of appeals as of right.
We did not grant Mr Obi-Okoye the relief he sought, namely that the appeal should be struck out or dismissed, as Mr Anyamene had acted in what until the present ruling would seem to be the permissible law under Section 35 of the High Court Law of the East-Central State.
Because of the special circumstances of this case, we granted Mr Anyamene’s oral application for leave to appeal out of time, which application he made to us as soon as we gave our ruling that leave is necessary in this case. We, however, ordered that the appeal must be brought within three months of that date. Objections upheld, but leave to appeal out of time granted.
Other Citation: (1973) LCN/1746(SC)
