A.T. Kiren V. Pascal & Ludwig Inc (1978)

LawGlobal-Hub Lead Judgment Report

ALEXANDER, C.J.N. 

These proceedings commenced with an action in the High Court of the former Western State by the plaintiff (who is the appellant in the present appeal before this court) against the defendant (now the respondent) claiming 16,000 Pounds (N32,000) for “unlawful dismissal of the plaintiff from the employment of the defendant.” The plaintiff, being dissatisfied with the decision of the High Court dismissing the action, appealed to the Court of Appeal of the former Western State, hereinafter referred to as “the Court of Appeal.”

The Court of Appeal allowed the appeal and held that the plaintiff was entitled to damages for wrongful dismissal, but adjourned to determine the issue of damages and later awarded the plaintiff N22,000 for the loss of salary claimed by him. The defendant, being dissatisfied with the decision (or decision) of the Court of Appeal to allow the appeal and award damages to the plaintiff filed an application for leave of that court to appeal to the Supreme Court.

Learned counsel for the plaintiff thereupon filed a notice of intention to rely upon a preliminary objection in the following terms:-

“TAKE NOTICE that the plaintiff/appellant herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you viz:-

1. In so far as the proposed appeal relates to the decision of this Honourable Court dated 28th of March, 1973 the defendants/respondents have not filed their application for leave to appeal within the time prescribed by law.
2. In the alternative the court has no jurisdiction to entertain the application of the said defendants/respondents. AND TAKE NOTICE that the grounds of the said objection are as follows:-
3. Whether the decision of this Honourable Court dated 28th of March 1973 be final or interlocutory, the defendants/respondents were out of time in filing the application herein.
4. In the alternative the decision dated 28th of March, 1973 being a final judgment the last day for lodging an appeal was 29th day of June, 1973.
5. In so far as the proposed appeal relates to the decision of this Honourable Court dated the 5th day of July, 1974 the last day for filing an application for leave to appeal was 20th day of July, 1974 since the decision aforesaid was interlocutory.

IN THE ALTERNATIVE

4. On a proper construction of the relevant provisions of the Constitution of the Federation the appellant does not require leave to appeal and this Honourable Court has no jurisdiction to grant such leave.
5. The decision of the Supreme Court in Olowosoke v. Oke II S.C.1, in which it was held that leave to appeal must be obtained before an appeal can be brought from a final judgment of this Honourable Court was inconsistent with other decisions of the Supreme Court (sitting in full) none of which was cited to or considered by the Panel which decided Olowosoke v. Oke. Accordingly, the Western State Court of Appeal is entitled to choose which to follow among the inconsistent decisions and should follow the earlier ones.”

This preliminary objection was overruled and, on the defendant’s application, leave was granted to him to appeal.

Whereupon the plaintiff, being dissatisfied with the decision of the Court of Appeal to overrule the preliminary objection and to grant leave to the defendant to appeal to the Supreme Court, sought and obtained leave of the Court of Appeal to appeal to the Supreme Court against that decision on the following grounds (being substantially the same as the grounds of the preliminary objection)-

“GROUNDS OF APPEAL

1. The Western State Court of Appeal erred in law in granting leave to the respondents herein to appeal to the Supreme Court against the decisions of the Western State Court of Appeal dated the 28th day of march, 1973 and the 5th day of July, 1974 in the matter herein, when that court has no jurisdiction to do so.

Particulars of Error

(a) In so far as the proposed appeal by the respondents relate to the decision of the Western State Court of Appeal dated the 28th day of March, 1973 the respondents herein (as applicants in the lower court) did not file their application for leave to appeal within the time prescribed by law; and accordingly the said court had no jurisdiction to entertain the application; and the application ought to have been struck out.

(b) Whether the decision of the Western State Court of Appeal dated the 28th day of March, 1973 is final or interlocutory, the respondents were out of time in filing their application for leave to appeal.

(c) In the alternative to (a) and (b) above, the decision dated 28th March, 1973 being a final judgment, the last day for lodging an appeal to the Supreme Court against that decision was 29th day of June, 1973.

(d) In so far as the proposed appeal, by the respondents, relates to the decision of the Western State Court of Appeal the 5th day of July, 1974, the last day for filing an application in the Western State Court of Appeal for leave to appeal to the Supreme Court against that decision aforesaid was an interlocutory decision.

ALTERNATIVELY

2. On a proper construction of the relevant provisions of the Constitution of the Federation, the respondents do not require leave of the Western State Court of Appeal to appeal to the Supreme Court against the said decisions.
3. The decision of the Supreme Court in Olowosoke v. Oke (1972) 11 S.C. 1, in which it was held that leave to appeal must be obtained before an appeal can be brought to the Supreme Court from a final judgment of a lower court, is inconsistent with other decision of the Supreme Court on that matter.”

Learned counsel for the plaintiff/appellant first of all submitted that there was nothing wrong in an appellant filing a notice of appeal at any time after obtaining leave to appeal. He relied on the case of Yesufu Babajide v. Akitoye Aisa and Anor. (1966) 1 All NLR 254. Suffice it to say in respect of this submission, that the full court, in a ruling delivered on October 27, 1978, held in the case of Madam Oni Amudipe v. Chief Ogunleye Arijodi (S.C. 381/1975), following the earlier case of Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 that a notice of appeal against a final decision in a civil case must be filed within the period of three months prescribed by Section 31(2)(a) of the Supreme Court Act, 1960, No. 12 of 1960, in any event, that is, whether or not leave to appeal first has to be sought and obtained.

However, the purpose for which the present full court has been empanelled is to decide the constitutional questions raised in grounds 2 and 3 of the grounds of appeal that is to say –

(1) Whether or not leave of the Court of Appeal was required to enable the defendant/respondent to appeal to the Supreme Court against the decision (or decisions) of the Court of Appeal; and

(2) whether or not the case of Olowosoke v. Oke (1972) (Part II) 1 All NLR 381 in which it was held by the Supreme Court that an appeal could lie from a decision of the Court of Appeal only with the leave of that court or of the Supreme Court, in any case in which an appeal was brought to the Court of Appeal from the State High Court, was rightly decided, or is inconsistent with other decisions of the Supreme Court on the point.

As regards the first question, learned counsel based his submissions on Section 117 (2) (a) of the Constitution of the Federation, No. 20 of 1963, as modified by Section 127 (1) (a) of the said Constitution and argued that Section 127 (1) (a), as modified, made provision for an appeal as of right from final decisions in any civil proceedings before the Court of Appeal and, consequently, that leave to appeal further to the Supreme Court was not necessary.

Section 117 (2) (a) 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 –

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

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

“If by the Constitution or the legislature of a Region there is established for the Region a Court having jurisdiction to hear and determine appeals in any matter from the High Court of the Region, 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 Region 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.”

The Court of Appeal was established for the former Region of Western Nigeria by Section 52 of the Constitution of Western Nigeria, No. 26 of 1963 and the jurisdiction of that court to hear and determine appeals from the High Court is set out in Section 53 of the said Constitution. The Court of Appeal Edict, 1967, No. 15 of 1967, hereinafter also referred to as “the Edict” makes the necessary provision to enable the Court of Appeal to function as contemplated by Sections 52 and 53 of the Constitution of Western Nigeria. It will be observed from all these provisions that the Court of Appeal was established expressly to deal with appeals from the High Court and that it was not intended or contemplated that it should sit “at first instance.” This is obviously the reason for the modifications prescribed in Section 127 (1) (a) of the Constitution of the Federation.

However, Section 127 (1) (a) was suspended by virtue of Section 1(1) and Schedule 1 of the Constitution (Suspension and Modification) Decree 1966, No. 1 of 1966 and remains suspended by virtue of Section 14 (1) of the Constitution (Basic Provisions) Decree, 1975, No. 32 of 1975. On a careful examination and consideration of the Constitution of the former Western Nigeria and all the relevant Decrees including, in particular –

(1) The Constitution (Suspension and Modification) Decree 1966 (No. 1 of 1966)

(2) The Constitution (Suspension and Modification) Decree, 1967 (No. 8 of 1967)

(3) The Constitution (Repeal and Restoration) Decree, 1967 (No. 13 of 1967)

(4) The Constitution (Miscellaneous Provisions) (No. 2) Decree 1967 (No. 27 of 1967) (especially Sections 1 and 3 thereof); and

(5) The Constitution (Basic Provisions) Decree 1975 (No. 32 of 1975),

and also in view of the admission by learned counsel for the appellant that he has not been able to trace any provision maintaining Section 127 (1) (a) in force, we have come to the inevitable conclusion that the basis of his contention being non-existent, his submissions on this point cannot be sustained.

Since it was not possible to pursue this submission any further, learned counsel for the appellant next submitted that the Edict was of doubtful validity and also that no jurisdiction had been conferred on the Supreme Court to hear appeals from the Court of Appeal, but, at the same time, he conceded that the Edict showed an intention that an appeal should lie from the Court of Appeal to the Supreme Court and clearly recognised such a right of appeal.

As in the case of University of Ibadan v. Adamolekun (1967) 1 All NLR 213, mentioned during the submissions of learned counsel for the appellant, which was also heard by a full court, we do not consider that we should deal in any detail in this ruling with these arguments now belatedly raised before us and which were not mentioned or foreshadowed in the grounds of appeal, except to say that, after a careful examination and consideration of the relevant provisions, we can see no reason whatever to doubt the validity of the Edict or the existence of the Court of Appeal at the time it took the decisions which are now on appeal before this court. Further, there can also be no doubt, in our opinion, that Section 34 of the Edict read together with Section 3 of Decree No. 27 of 1967, Sections 52 and 53 of the Constitution of the former Western Nigeria and Section 117 of the Constitution of the Federation (modified in the light of Section 34 of the Edict) contained all the provisions necessary for establishing a right of appeal and also, a channel of appeal, with or without leave, from the High Court to the Court of Appeal in the first instance, and, further, similarly, from the Court of Appeal to the Supreme Court.

The Supreme Court of Nigeria was established under Part I of the Chapter VIII of the Constitution of the federation, with effect from October 1, 1963, to be the final court of Appeal in and for Nigeria and the jurisdiction of the Judicial Committee of the Privy Council to hear and determine appeals from Nigeria was accordingly abolished. Section 117 of the Constitution of the Federation was enacted to provide for appeals from the High Courts, unless and until any Regional Court of Appeal was established, in which even the modifications provided by Section 127 would have effect, to enable “Court of Appeal” to be substituted for “High Court” in Section 117. The fact that Section 127 was suspended at the material time could not and did not derogate from the fundamental power and jurisdiction of the Supreme Court of Nigeria as the final court of appeal and this position is clearly recognised, as conceded by learned counsel for the appellant, by Section 34 of the Edict.

Indeed, the validity of Section 34 of the Edict which was enacted on 19th May, 1967, with effect from 1st April, 1967 was recognised and impliedly confirmed by Section 3 of Decree No. 27 of 1967, which was enacted on 12th July, 1967, with effect from 1st June, 1967, and conferred a right of appeal direct to the Court of Appeal from the High Court in any case in which notice of appeal to the Supreme Court had been filed on and after 1st June, 1967. Section 6 of course, also provided that the Supreme Court should cease to have jurisdiction in such cases, that is to say, in appeals from the High Court in which notice of appeal to the Supreme Court had been filed on and after 1st June, 1967. Also, by virtue of Section 5(2), Section 3 was deemed to have come into operation on 1st June, 1967, thereby modifying by necessary implication the provisions of Section 34 of the Edict, in regard to its effective date which was thereby altered from 1st April, 1967 to 1st June, 1967. Further, it would appear that Section 3 of Decree No. 27 of 1967 was enacted to modify the effect of the decision in the Adamolekun case (already cited) in which it was held that Section 35 of the Edict (which purported to make transitional provisions with respect to pending appeals from the High Court to the Supreme Court) was inconsistent with the right of direct appeal from the High Court to the Supreme Court conferred by Section 117 of the Constitution of the Federation, which prevailed over Section 35 of the Edict, thereby rendering Section 35 of the Edict void, by virtue of Section 3(4) of Decree No. 1 of 1966.

We therefore hold the view that, in these circumstances, the right of appeal from the Court of Appeal to the Supreme Court and the conditions under which the Supreme Court could exercise its undoubted jurisdiction to hear and determine appeals from the Court of Appeal, were provided for in Section 34 of the Court of Appeal Edict, 1967, read together with Section 117 of the Constitution of the Federation and Section 53 of the Constitution of the former Western Nigeria.

Section 34 of the Court of Appeal Edict, 1967 reads as follows:-

“34. Where in any existing law in force in the Region immediately before the 1st day of June, 1967, reference is made to, or to any matter in relation to, any right of appeal to the Supreme Court with or without leave, from any decision of the High Court given in the exercise of its original or appellate jurisdiction, such reference shall, as from the 1st day of June, 1967, be construed as a reference to, or to such matter in relation to, a right of appeal, with or without leave as the case may be, from a decision of the High Court to the Court of Appeal in the first instance, and further similarly from a decision of the Court of Appeal to the Supreme Court, in accordance with the existing law relating thereto, and accordingly, any existing law as aforesaid shall be construed with such modifications (whether by way of addition, alteration or omission) as may be necessary to bring the same into conformity with the provisions of this Edict, the Constitution of the Federation and the Constitution of Western Nigeria.”

This section is to be read in accordance with any “existing law” in force in the Region immediately before the 1st day of June 1967, and with such modifications as may be necessary to bring the same into conformity with the provisions of the Court of Appeal Edict, 1967, the Constitution of the former western Nigeria and the Constitution of the Federation. On a careful examination and consideration of these provisions, it is clear that by virtue of Section 53 (3)(d) of the Constitution of Western Nigeria, an appeal should lie at the material time from decisions of the High Court to the Court of Appeal with leave of the High Court or the Court of Appeal in the following case, inter alia –

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

In short, where there was an appeal from a subordinate court to the High Court sitting, of course, as a court of appeal, any further appeal to the Court of Appeal, would have had to be with the leave of the High Court or the court of appeal. It is also clear that the Court of Appeal did not have jurisdiction to sit “at first instance”, and the appropriate provisions of Section 117 of the Constitution of the Federation which could be applied similarly (that is to say, as in the case of an appeal from a subordinate court to the High Court and further to the Court of Appeal are Section 117 (4)(c) and (d) which provide that an appeal should lie from the decisions of the High Court with the leave of the High Court or the Supreme Court in the following cases, inter alia –

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

(d) such other cases as may be prescribed by any law in force in the territory.”

It should accordingly be also clear that Section 34 of the Court of Appeal Edict, 1967 was validly enacted in conformity with the provisions of paragraph (d) above and, consequently, paragraph (c) above read together with Section 34 of the Edict, with the necessary modifications, prescribes in effect that an appeal should lie from decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court in the case of any decision in any civil or criminal proceedings in which an appeal has been brought to the Court of Appeal from some other court, in this case, the High Court.

It would in our opinion, to say the least, have been incongruous in the circumstances, if leave were required for a “further appeal” from the High Court to the Court of Appeal in respect of a decision of a subordinate court, e.g. a Magistrate’s Court, and not in the case of a “further appeal” from the Court of Appeal to the Supreme Court, in respect of the decision of the Court of Appeal in the same case, or in respect of a decision of the High Court sitting at first instance, bearing in mind the superior status, authority and jurisdiction of the High Court in the hierarchy of courts, and the responsibility of the High Court, as well as the Court of Appeal, and the Supreme Court to ensure the speedy disposal of frivolous or vexatious appeals, by refusing leave in appropriate cases.

It therefore follows from our decision that leave of the Court of Appeal or of the Supreme Court was required, at the material time, for the defendant/respondent to appeal to the Supreme Court against the decision (or decisions) of the Court of Appeal and that the Court of Appeal accordingly, correctly exercised jurisdiction in granting leave to the defendant/respondent to appeal to the Supreme Court, that this court has arrived at the same conclusion with the court before which the appeal in Olowosoke v. Oke (already cited) was heard and determined but, obviously, for different reasons. It should be noted that the effect of Section 34 of the Court of Appeal Edict 1967, was not argued before the Supreme Court during the hearing of the appeal in the Olowosoke case, and that section was not referred to in the judgment of the court. Further, the judgment proceeded on the assumption that Section 127 (1) (a) was in force. It does not appear that either learned counsel for the appellant or learned counsel for the respondent in that appeal drew the attention of the court to the fact that Section 127 was in a state of suspension by virtue of Section 1(1) and Schedule 1 of the Constitution (Suspension and Modification) Decree 1966. To that extent, it may be said that the Olowosoke case was decided per incuriam. But, as we have already pointed out, this court has arrived at the same conclusion, for reasons that have already been fully stated by us.

It was argued on behalf of the plaintiff/appellant in this court , as in the Court of Appeal, that the Olowosoke case was inconsistent with other decisions of the Supreme Court on the point. We are satisfied that the Court of Appeal dealt effectively with this submission and we are in entire agreement with the well considered view expressed by that court that “there is no conflict whatsoever between the Olowosoke case and the earlier decisions of the Supreme Court” to which the Court of Appeal and this court have been referred namely-

(1) D.P.P. v. Chike Obi (1961) All NLR 458;

(2) Police v. Ededey (1963) 1 All NLR 404;

(3) Automatic Telephone and Electric co. Ltd. v. The Federal Military Government (1968) 1 All NLR 429; and

(4) Police v. Nwobiala (1960) 5 FSC 243.

As regards the case of Mabinuori & Ors. v. Ogunleye (1970) 1 All NLR 17, we hold that it is clearly distinguishable from the present case. In the former case it was decided that Section 98(6) of the Registration of Titles Act, Cap. 181, made specific provisions for appeal from the High Court to the Supreme Court and should be given its natural meaning which must be that the appeal was as of right. Section 98(6) provides as

follows –

“(6) Every person aggrieved by an order of the court may appeal to the Supreme Court within such time and in such manner as may be provided by the law and rules of the court for the time being in force relating to appeals to that court in civil cases.”

When compared with Section 34 of the Court of Appeal Edict 1967, it becomes clear that while in Section 98 (6) of Cap. 181 no reference is made to appeals “with or without leave”, Section 34 of the Edict takes full congnizance of circumstances in which a right of appeal may be exercised “with or without leave” to the Court of Appeal in the first instance and similarly to the Supreme Court, in accordance with the existing law relating thereto, with the necessary modifications.

In the result, this appeal is dismissed, and it is ordered that the plaintiff/appellant do pay to the defendant/respondent costs assessed at N324.00.

In the course of hearing this appeal, it was noted that leave was granted to the defendant/respondent, by an order of the Court of Appeal, dated May 28, 1975, to appeal to the Supreme Court “against the decision of the Court of Appeal concluded on 28th day of March, 1973 and the 5th day of July, 1974,” and that the defendant/respondent filed notice of appeal on June 4, 1975, eleven months after the final determination by the Court of Appeal, of the plaintiff’s successful appeal to that court against the decision of the High Court. We again draw attention to our decision in Amudipe v. Arijodi (S.C.381/75) in which we held that a notice of appeal in a civil case must in any event be filed within the appropriate period prescribed in Section 31 (2) (a) of the Supreme Court Act, 1960, No.12 of 1960.

In the circumstances, this court does not find it necessary to decide at this stage whether or not the judgment of the Court of Appeal in the action consists of one or two appealable final or interlocutory decisions on the questions of (1) liability of the defendant and (2) award of damages against the defendant.

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Other Citation: (1978) LCN/1966(SC)