Olalere Obadara & Ors V. The President, Ibadan West District (1964)

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BRETT, C.J.N. 

The appellants have been charged in the Ibadan West District Grade B Customary Court with various offences of assault, contempt of court and conduct likely to cause a breach of the peace. Before the hearing of the charges began they obtained the leave of the High Court to apply for an order of prohibition to prohibit the customary court from further proceeding in the case, on the ground that the President of the Court, who is the respondent to this appeal, was biased against them, and a stay of proceedings in the customary court was ordered pending the determination of the proceedings In the High Court. On the 30th September, the High Court gave judgement refusing the application. On the 5th October, notice of appeal was given and a motion was brought in the High Court asking for a further stay pending the determination of the appeal. This motion was withdrawn and struck out, but the appellants allege in an affidavit that the respondent was present in the High Court when the motion came up, and that before they withdrew it the Judge had advised them to apply to the customary court for an adjournment and said that he expected that in the interest of justice it would be granted. However that may be, the hearing of the charges was started in the customary court on Friday, 9th October, and was continued on Saturday, 10th. It had not been concluded before Monday, 12th, when this Court granted a stay pending the determination of the appeal.

Four grounds of appeal have been filed, of which the first alleges a misdirection as to the nature and burden of proof required in an application of this nature and the others deal with questions of fact or of mixed law and fact. The appellants have also applied for leave to adduce evidence as to the proceedings in the High Court on the 5th October and in the customary court on the 9th and 10th October, as further proof of the bias of the respondent.

The respondent has raised a preliminary objection to the hearing of the appeal, on the ground that it is an appeal in criminal proceedings and as such does not lie without the leave of the High Court or of this Court except on a point of law, Counsel for the respondent said, however, that he would not oppose the grant of leave to appeal, and without giving an immediate ruling on the objection the Court granted leave to appeal and an extension of time to apply for it, in case it should hold that these were required, and the appeal was argued on the merits. It remains necessary, however, to decide whether this is an appeal in civil or in criminal proceedings, since although Part 3 of the Supreme Court Act, 1960, prescribes the powers of this Court in any civil appeal, no express provision is made for the powers of the Court in a criminal appeal where no person has been convicted or acquitted, and If the proceedings are held to be criminal the question will arise what powers, if any, are conferred by necessary implication by the Constitution of the Federation.

The cases in which appeals lie to this Court are set out in section 117 of the Constitution, and the matter turns on the correct construction of that section. Subsection (1) confers jurisdiction on this Court to hear and determine appeals from the High Courts. Subsection (2) sets out the cases In which an appeal shall lie as of right, and subsection (4) the cases in which an appeal shall lie with leave. Subsection (6) prescribes the persons by whom a right of appeal shall be exercisable. These subsections read as follows:

(1) ‘The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the High Court of a territory.

(2) An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases:

(a) final decisions in any civil proceedings before the High Court sating at first instance;

(b) where the ground of appeal involves questions of law alone, decisions in any criminal proceedings before the High Court sitting at first instance; (c) decisions in any civil or criminal proceedings on questions as to the Interpretation of this Constitution or the constitution of a Region;

(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter III of this Constitution has been contravened in relation to any person;

(e) decisions in any criminal proceedings in which any person has been sentenced to death by the High Court or in which the High Court has affirmed a sentence of death imposed by some other court; and

(f) such other cases as may be prescribed by any law in force in the territory: Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal:

(i) from any order made ex parts;

(ii) from any order relating only to costs;