Oyeyemi Olowosoke V. Isaiah Oke (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

At the hearing of this appeal yesterday, Thursday, 2nd November, 1972, counsel for the respondent raised a preliminary objection on the ground that the appeal is not properly before the court in that the appellant has not obtained leave to appeal as required by section 117(4)(c) as modified by section 127(1)(a) of the Constitution of the Federation, No. 20 of 1963.

Section 117(4)(c) of the Constitution of the Federation 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:-

( c) decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court.”

Section 127(1)(a) provides as follows:-

“(1) If by the Constitution or the legislature of a State there is established for the State a court having jurisdiction to hear and determine appeals in any matter from the High Court of the State, then:-

(a) sections 115 and 117 of this Constitution shall have effect, in relation to that matter, as if any reference in those sections to the High Court of the State were a reference to the court having jurisdiction as aforesaid and as if the words ‘sitting at first instance’ wherever they occur in section 117 were omitted.”

It is common knowledge that the Western State Court of Appeal was established in consequence of the Western State Court of Appeal Edict, 1967, with effect from 1st April, 1967. When both sections are read together, the effect is that an appeal lies from decisions of the Western State Court of Appeal to the Supreme Court with the leave of either the Court of Appeal or the Supreme Court, this being a case in which an appeal had been brought to the Court of Appeal from some other court, namely, the High Court of the Western State, Oyo Judicial Division.

The judgment appealed from (Suit No. HOY/35/1968) was delivered by Olufemi Odunlami J., on 29th May, 1969, and the appeal therefrom was heard and determined by the Western State Court of Appeal in Suit No. CAW/7/70 delivered on 4th May, 1970. Learned counsel for the respondent, therefore, submitted that, in these circumstances, the appeal is not properly before us since the appellant has not obtained leave to appeal either from the Western State Court of Appeal or from this Court.

Mr. Akinjide, learned counsel for the appellant, on the other hand, argued that section 117(4)(c) is not applicable to the case and that section 117(2)(a) confers on the appellant a right of appeal as of right. Section 117(2)(a), with the necessary modifications implied by section 127(1)(a), reads as follows:-

“(2) an appeal shall lie from decisions of the Western state Court of Appeal to the Supreme Court as of right in the following cases:-

(a) final decisions in any civil proceedings before the Western State Court of Appeal.”

He accordingly contended that leave of either the Western State Court of Appeal or the Supreme Court is unnecessary for the bringing of this appeal before us. He further contended that the right of appeal conferred by section 117(2)(a) cannot be curtailed by the later provision in section 117(4)(c) which requires leave to appeal from the Western State Court of Appeal to the Supreme Court. We do not think that there is any question here of a right to appeal as of right being conferred by section 117(2)(a) as being curtailed by the invocation of the later sub-section 117(4)(c). On the contrary, we think that, as the decision of the Western State Court of Appeal was based on an appeal brought to it from the High Court, the appropriate provision of the Constitution is that contained in section 117(4)(c), and not that contained in section 117(2)(a). It is our view that the omnibus provision of section 127(1)(a), when applied to make a literal substitution of the Western State Court of Appeal for the State High Court may give the impression that appeals may lie as of right from the Western State Court of Appeal. When, however, it is read together with the provisions of section 115(1) as modified, the reason for the omission of the words “sitting at first instance” will be apparent. Section 115(1) of the Constitution, as modified by the provisions of section 127(1)(a) aforesaid reads:-

“Where any question as to the interpretation of this Constitution or the Constitution of a State arises in any proceedings in any court of law in any part of Nigeria (other than the Supreme Court or the Western State Court of Appeal) and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Western State Court of Appeal; and the Western State Court of Appeal shall:-

(b) if it is of opinion that the question does not involve a substantial question of law, remit the question to the court that made the reference to be disposed of in accordance with such directions as the Western State Court of Appeal may think fit to give. ”

It is therefore obvious from this modification that the Western State Court of Appeal, quite apart from exercising appellate jurisdiction in respect of appeal from decisions of the State’s High Court, may also be sitting as a court of reference under section 115. If the words “sitting at first instance” had been allowed to remain in section 117(2)(a), there would have been no provision for appeals against any decision of the Court of Appeal in respect of constitutional matters referred to it by virtue of the provisions of section 115. This is because the jurisdiction it is exercising in respect of such reference is neither one of “first instance” nor one in respect of its appellate jurisdiction.

Moreover, the meanings of the constitutional provisions become clear when one draws the analogy that, in order to prosecute an appeal in the Western State Court of Appeal from a decision of the High Court given in the exercise of its appellate jurisdiction in respect of a decision given in a Magistrate’s Court, leave of either the High Court or of the Western State Court of Appeal is necessary.

It would be anomalous, to say the least, to contend that a further appeal from that decision to the Supreme Court will be as of right since it is not a decision given by the Court of Appeal “sitting at first instance.” It follows that an appeal in a civil or criminal proceedings lies from decisions of the Western State Court of Appeal only with the leave of that court or of the Supreme Court in all cases in which an appeal was brought to the Western State Court of Appeal from the State High Court.

We are of the view that any other interpretation of section 117(2)(a) and 117(4)(c) read together with section 127(1)(a) would amount to making appeals from the Western State Court of Appeal automatic, thus depriving that court or the Supreme Court of the power, in appropriate cases, of any form of control over appeals from the Western State Court of Appeal. We think that this would be an unacceptable, and indeed unprecedented, result. We accordingly sustained the objection of learned counsel for the respondent and struck out the appeal with 40 guineas costs awarded to the respondent.

It is pertinent to observe that learned counsel for the appellant thereafter made an oral application for leave to appeal and this was refused. The position would have been different had he made a written application for an extension of time within which to apply for leave to appeal coupled with an application for leave to appeal before the preliminary objection of the learned counsel for the respondent was considered.

Other Citation: (1972) LCN/1360(SC)