Adesina Oke & Anor V. Shittu Atoloye & Ors. (1985)

O. COKER, J.S.C. 

On the 6th day of May, 1985, the preliminary point impugning the jurisdiction of the (Federal) Court of Appeal to hear and determine the appeal against the decision of the former Western State Court of Appeal, delivered on the 20th day of July, 1983, was dismissed and indicated then that I will give my reasons today.

On the 26th day of February, 1973, Ayoola J., in the then High Court of Western State, dismissed the Plaintiffs’ claims, and they appealed in accordance with the applicable Constitutional provisions at the time to the Court of Appeal of the former Western State of Nigeria. On the 17th day of July, 1975, the appeal was allowed and judgment entered in their favour. The defendants then appealed to the Supreme Court, by leave granted on the 12th September, 1975, by the aforesaid Western State Court of Appeal.

The records of appeal had not been transmitted to the Supreme Court when the Constitutional channel of Appeal to the Supreme Court was amended. By the Constitution (Amendment) Decree No. 42, of 1976 (hereinafter described as the Decree), the Western State Court of Appeal was abolished retrospectively from 31st day of March, 1976, and the Federal Court of Appeal was established with effect from 1st October, 1976. The Decree provided that any pending appeal in the Western State Court of Appeal and any proposed appeal or application for leave to appeal to the Court from the High Court was deemed to be pending in or filed in the newly established Federal Court of Appeal.

In this case, the appeal to the Western State Court of Appeal had been disposed of in that court before the 31st March, 1976, but the records of the appeal to the Supreme Court had not been transmitted to it. The defendants’ appeal finally found itself on the 22nd February, 1982, at the Federal Court of Appeal, instead of the Supreme Court to which the Notice of Appeal was addressed. Chief Chukwura raised the point that the Court should not take the appeal.

He referred to sections 3(1) and 3(a)(sic) of the Decree. But when the Court drew his attention to Section 4(2) of the Decree, he said he “no longer wished to press the point at this stage.” The appeal was then heard and allowed on the 20th day of July, 1983; restoring the judgment of Ayoola, J. It is from the decision of the Federal Court of Appeal that the plaintiffs further appealed to this Court.

The question of jurisdiction of the Federal Court of Appeal was not raised in any of the grounds of appeal in the Notice of Appeal. However, Chief Williams, S.A.N. learned Counsel for the Plaintiffs/Appellants, sought leave of the Court (by an application dated 17th of December, 1984) and was granted leave to file his Brief solely on the preliminary question whether the Federal Court of Appeal (as it was formerly known) had jurisdiction to hear the appeal as it did. It is therefore necessary to state briefly the historical background of appeal system in the Federation on the 31st March, 1976.

Before the 1st October, 1976, when the Constitution (Amendment) (No.2 Decree) 1976 (hereinafter referred to as the ‘1976 Decree’) came into force, any appeal from the decision of the Court of Appeal of Western State, lay to the Supreme Court vide Section 3 of the Constitution (Miscellaneous Provisions) Decree 1967 and Sections 34 and 35 of the Western State Court of Appeal Edict 1967. The Court was established pursuant to Sections 52 and 53 of the Constitution of Western State of Nigeria. Any appeal from any other State High Court of the Federation and the Federal Revenue Court lay direct to the Supreme Court as provided in Section 117 of the Constitution. So it was only the Western State and no other State that had an intermediate Court of Appeal, from the decision of the High Court. The purpose of establishing the Federal Court of Appeal in 1976, was to provide a uniform channel of appeal by creating a single forum for appeals from the decisions of the High Court of a State and the Federal Revenue Court to the Federal Court of Appeal, and from that Court to the Supreme Court. This purpose was achieved by the Constitution (Amendment)(No.2) Decree 1976 by amending Sections 117 and 121 of the Constitution of the Federation 1963 No. 20. Section 1 sub-section 1(a) of the Decree amended section 117 of the 1963 Constitution by substituting a new section which provided that with effect from 1st October, 1976, the Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal Court of Appeal. Section 121 of the 1963 Constitution, was amended by the creation of the Federal Court of Appeal with exclusive jurisdiction to hear and determine appeals from the High Court of a State and the Federal Revenue Court and such Court or tribunal as may be prescribed by any applicable law. And Section 3(1) abolished retrospectively, with effect from 31st March, 1976, the Court of Appeal of the former Western State; and it further provided that any appeal pending in that Court on that date shall be deemed, notwithstanding anything to the contrary in any law, to have been duly filed in the Federal Court of Appeal. Sub-section 2 of Section 3, similarly provided that as from that date any proposed appeal to that Court, including any notice of Appeal, Application for Leave given or made or any other thing whatsoever done before or after that date with respect to any proposed appeal, from any decision of the High Court to the Court of Appeal of the Western State, shall be deemed for all purposes to have been given, made or done, with respect to a proposed appeal from the High Court to the Federal Court of Appeal. In effect, all matters relating to any pending appeal and proposed appeal from any decision of the High Court shall be deemed to have been made or given, notwithstanding anything to the contrary, to the Federal Court of Appeal. But what of an appeal filed from its decision to the Supreme Court but which records of proceedings on the 1st day of October, 1976, were not pending in the Supreme Court as in this case For reasons stated hereinafter, it seems that Section 4 provides the key to the answer. Section 4 of the 1976 Decree reads as follows:-

“4.(1) The Supreme Court shall continue to hear and determine any appeal pending before it at the commencement of this Decree.

(2) Any Appeal which could have been brought to the Supreme Court under or by virtue of any applicable law in force immediately before the commencement of this Decree and which is not pending in the Supreme Court on the commencement of this Decree, shall as from the commencement of this Decree be deemed to lie in the first instance to the Federal Court of Appeal.

(3) Any Notice of Appeal, Application or Notice of Application for Leave to Appeal given or made, or any other thing whatsoever done, before the commencement of this Decree, with respect to any’ proposed appeal (not being a pending appeal) to the Supreme Court shall be deemed to have been given, made or done, as the case may be, to the Federal Court of Appeal and such further action as may be necessary to be taken on the same by any person or authority in accordance with the provisions of the Federal Court of Appeal Decree 1976 and applicable rules of Court shall be so taken as soon as may be after the commencement of this Decree.

(4) For the purpose of this section an appeal shall be deemed to be pending in the Supreme Court if and only if the appeal has been entered in that court and the records relating to that appeal have been entered on the cause list in accordance with the rules of that court.”

It was the contention of Chief Williams, learned Counsel for the Appellants, which he elaborated in his oral argument that-

“These subsections (i.e sub-sections 1, 2, 3 and 4 of section 4) contain general provisions which are transitional provisions arising from the 8 creatIon of the Federal Court of Appeal. They are to be distinguished from the special provisions (contained in Section 3) which are transitional provisions arising from the abolition of the Western State Court of Appeal. Subsection (2) most certainly means that appeals no longer lie from the High Courts to the Supreme Court.

But the subsection must not be read to mean that appeals from the Western State Court of Appeal also cease to lie to the Supreme Court. Generalia specialibus non derogant. Subsection (3) of Section 4 of the 1976 Decree is purely ancillary or incidental to subsection (2).”