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

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).”

Finally, he submitted that the (Federal) Court of Appeal was in error in assuming jurisdiction over the appeal. Earlier in his Brief, he stated:-

“At first sight it may appear to the unwary that the effect of the two subsections (i.e. 1 and 4) is to take away from the Supreme Court its jurisdiction to deal with appeals from judgments of the Western State Court of Appeal in those cases where on 1.10.76 the appeals have not been entered on the cause list of the Supreme Court and were accordingly not pending within the meaning of Section 4(4) of the 1976 Decree. It is submitted however that the provisions did no more than ensure that the conferment on the Federal Court of Appeal of exclusive appellate jurisdiction over decisions of the High Courts does not mean that the Supreme Court will have no jurisdiction to determine any appeal which may still be pending (in the sense defined) before it from any of the States. The subsections are not concerned with appeals from the Western State Court of Appeal. The transitional provisions arising from the abolition of the Western State Court of Appeal have already been dealt with under Section 3 of the Decree. Indeed, as already pointed out, sec.3(3)(a) expressly confers on the Chief Justice of Nigeria power to give directions concerning “an appeal or proposed appeal to the Supreme Court from any decision of the Court of Appeal of the former Western State given before the prescribed date” (i.e. 31.3.76). The operation of the Rule in Adamolekun’s case had to be avoided. It is to be remembered that the operation of that Rule would have meant that the Supreme Court’s jurisdiction would have continued in respect of appeals concerning suits filed after 31.3.76. Hence the need to limit its jurisdiction to “pending appeals” as defined in sec. 4(4). Significantly, it seems patent that the draftsman of the 1976 Decree based his draft of Section 4(4) of 1976 Decree on the wording of Section 35(4) of the Western State Court of Appeal Edict.

4.7 The Extent of Jurisdiction of the Federal Court of Appeal Subsections (2) and (3) of Section 4 of the 1976 Decree are designed to define as precisely as possible, the jurisdiction of the Federal Court of Appeal which would have been denied to it by the operation of the Rule in Adamolekun’s case.”

It is pertinent to deal first with what learned Counsel for Appellants described as the Rule in Adamolekun’s case. He stated in his brief:-

“the lesson to be drawn from the legislative history of the Western State Court of Appeal is that when a new Court is established to exercise appellate jurisdiction and the Court which previously exercised that jurisdiction is not abolished then the jurisdiction of the new Court of Appeal is not exercisable in respect of suits filed before it (the new Court of Appeal) came into existence unless there is express and valid enactment providing otherwise.” (Italics mine).

It is my respectful view that the express provisions of the Decree do not admit the application of the general principle regarding retrospective legislation. Also, with due respect to Chief Williams, I am unable to find anywhere in the decision of this Court in Adamolekun’s case where such a proposition was established. The Adamolekun’s case is reported in (1967) 1 All N.L.R.213. Although one of the questions arising on the arguments was-

“the effect on appeals relating to proceedings which are already in existence when a Regional Court of Appeal is set up under the relevant Constitutional provisions” the decision of the Court was based on the second of three questions posed in the appeal.”

The 1976 Decree made more comprehensive provisions than the 1967 Decree and the 1967 Edict aforesaid. The judgment of Ademola, C.J. at p.219 only referred to the argument of Chief Williams in which he referred to a passage at p.372 in the case of the Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369. The review of learned Counsel’s submission went on to p.221. At page 220, the learned Chief Justice stated:-

“Chief Williams submitted that the effect of section 35 of the Edict, which makes such appeals lie in the first instance to the Court of Appeal, was an amendment of the Constitution of the Federation. Such an amendment, he submitted, could not be validly made by an Edict but only by a Decree. Mr. Ayoola, for the Respondent, submitted that section 127 of that Constitution must be read subject to the Edict. Dr. Ajayi, whilst conceding that a Military Governor of a Region (now a State) cannot amend that Constitution, submitted that the courts cannot enquire into the validity of an Edict. Dr. Elias however agreed that an Edict could not amend that Constitution; he went on to say that if it purported to do so it was void and that the Supreme Court could so declare. He added that section 35 of the Edict implies an amendment of section 117 of the Constitution of the Federation, which situation in his view, is not in accord with the constitution and against the decision in the Colonial Sugar Refining Co. Ltd. v. Irving (Supra).”

The court then came to the conclusion at p.223 by stating:-

“It is also clear that the legislative powers of the Military Governor of a Region are limited as evidenced by section 3 of the Decree No.1 of 1966 set out above. If the Military Governor of a Region when making an Edict exceeds those powers, it is void to the extent of the inconsistency. This raises the question whether by reason of subsection (4) of section 3 of that Decree, section 35 of the Court of Appeal Edict (W.N. No.15 of 1967) on the face of it is void. To our mind this section 35 is clearly inconsistent with the Constitution of the Federation, which prevails as being a law made by Parliament before the 16th January, 1966 -It is Act No. 20 of 1963. That section 35 of the Edict is void there can be no doubt.”

It is my view therefore that the case of Adamolekun is not helpful in deciding this appeal since no question of the Constitutional validity of the 1976 Decree has arise in this case. Besides, we are concerned with the construction of the provisions of sections 3 and 4 of the 1976 Decree in relation to an appeal from the decision of the Western State Court of Appeal given on the 17th July, 1975, and which was not pending in the Supreme Court on the 1st day of October, 1976. There is no suggestion that the language of these provisions of the Decree is ambiguous or not clear. Chief Williams in the course of his argument conceded that the language of section 4 is capable of the construction in the Respondents’ Brief namely,

“Section 4(1) vests the Supreme Court with jurisdiction to continue to hear and determine any appeal pending before it at the commencement of the Decree, i.e. on 1st October, 1976.”

The proper manner to approach the question is to seek which construction will best achieve the result to be attained by the Decree. See NIMMO v. ALEXANDER COWAN & SONS LTD. (1967)3 All E.R. 187, 194. Its primary object is to create a single forum for the hearing and determination of appeal from any decision of the High Court of all the States and the Federal Revenue Court. In its desire to achieve that objective, it abolished with effect from 31.3.76 the only intermediate Court of Appeal established by a State, namely, the Court of Appeal of the Western State. In its place, the Decree established the Federal Court of Appeal with exclusive jurisdiction to hear and determine appeal from any decision of the High Court, with effect from 1st day of October, 1976. Any appeal which as on that date was not pending in the Supreme Court, is deemed to be an appeal to the Federal Court of Appeal. That this is the intention of the legislative is plain from the unambiguous language of the provision of sections 3 and 4.

The policy of the 1976 Decree is the retrospective abolition of the Court of Appeal of the former Western State, the creation of the Federal Court of Appeal to assume the former jurisdiction of the Supreme Court as one single intermediate court of appeal throughout the country and leaving the Supreme Court as the final appeal court with jurisdiction over appeals from the Federal Court of Appeal and in addition to continue to hear and determine appeals from any court pending before it on the 1st October, 1976.

In addition, the plain language of its provisions are clearly retrospective, and each of the subsections of section 3 points to a distinct situation. Similarly, section 4 is an exceptional transitory provision to enable the Court hear appeals pending in the Court before the creation of the Federal Court of Appeal. The construction of the provisions does not demand the aid of section 6 of the Interpretation Act 1964, as stated in the Appellants’ brief. For it is only where there is no express provision in the Decree that the Interpretation Act is a relevant factor in construing its provisions. See section 1 of the Interpretation Act, 1964 and SHANMUGAN v. COMMISSIONER FOR REGISTRATION OF INDIAN AND PAKISTAN RESIDENTS (1962) 2 All E.R. 609, p.612.

The entire language and tenor of the provisions of the Decree make it plain by giving a cut-off date, that as from the 1st October, 1976, with the creation of the Federal Court of Appeal, the Supreme Court jurisdiction is restricted to the hearing of appeals from the decisions of the newly enacted Court of Appeal and from no other Courts; And since the very language of both sections 117(1) of the Constitution and Section 4(1) of the Decree stated specifically which appeal the Court could hear, it will be doing violence to the clear intention of the legislation to construe the provisions of the Constitution and the Decree in any other manner. See Kammins Bellrooms Co. Ltd. v. Zenith Investments (Torquey) Ltd. (1970) 3 W.L.R. 287 p.310, per Lord Diplock, when considering the closely balanced division of opinion of their Lordships in the House of Lords and the Court of Appeal as to the effect of section 29(3) of the Landlord and Tenant, Act 1954, reflected the competing approaches to the task of statutory construction – the literal and purposive approach.

The Colonial Sugar Refining Company case supra is irrelevant to this case in that the Privy Council clearly states that the Judiciary Act with which it was concerned is not retrospective as in this case. The 1976 Decree in question is clearly retrospective. Similarly, the Adamolekun’s case was decided on a different ground of inconsistency between the provisions of the 1963 Constitution and the 1967 Edict. These distinguishing features make both cases inapplicable to the issue in this appeal. The answer to this appeal therefore must be found and is founded in the four corners of the Constitution (Amendment) (No.2) Decree, 1976, No.420f 1976. See Attorney General v. Vernazza (1960) 3 All E.R. 97 at p.101. The House of Lords was faced with the effect on vested rights of a change of the law by the Supreme Court of Judicature (Consolidation) Act, 1925, S.(I). The power conferred by Section 51(1) of the Act on the High Court to make an order that a vexatious litigant shall not continue any legal proceedings instituted by him before the date of the order notwithstanding that the proceedings were instituted before the passing of the Act. Lord Denning, reviewing the Act and argument, stated at p.100:-

“Let me consider first the proceedings which the respondent himself has already instituted against other litigants. If the effect of the new Act is to prevent him from continuing those proceedings to their ultimate conclusion, then it may be said to be a “‘retrospective” Act, at any rate in the sense in which LORD BLACKBURN once had occasion to use the word “‘retrospective” or not, it is of little moment; because the principles to be applied are not in doubt. If the new Act affects the respondent’s substantive rights, it will not be held to apply to proceedings which have already commenced, unless a clear intention to that affect is manifested: See Colonial Sugar Refining Co. v. Irving (6). But if the new Act affects matters of procedure only, then, prima facie, it applies to all actions, pending as well as future; for, as LORD BLACKBURN said:

“Alterations in the form of procedure are always retrospective, unless there is some good reason or other when they should not be”,

See Gardner v. Lucas (7). The Court of Appeal seem to have thought that the new Act affects the respondent’s substantive right to carry on his pending proceedings; and that it ought not to be given a retrospective operation. I cannot, I am afraid, share the view. The new Act does not prevent the respondent from continuing proceedings which it is proper for him to carry on. It only prevents him from continuing proceedings which are an abuse of the process of the court. If the proceedings are not an abuse he has prima facie grounds for them, then he will be given leave to continue them. This is no interference with a substantive right.”

And then continued at p. 101:-

“But what about the Court of Appeal The new Act was passed after the judgment of the High Court and before the hearing in the Court of Appeal. Can the Court of Appeal take the new Act into account and make an order under it or must it leave the Attorney General to make a fresh application to the High Court It is, of course, clear that, in the ordinary way, the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings: See Re Debtor, Ex p. Debtor (No.490 of 1935)(10), New Brunswick Ry, Co. v. British & French Trust Corpn., Ltd. (11). But it is different when the statute is retrospective either because it contains clear words to that effect or because it deals with matters of procedure only; for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court of first instance: See Quilter v. Mapleson (12) and Stovin v. Fairbrass (13). Those decisions seem to me to show that the Court of Appeal can give effect to a retrospective Act passed in the interval since the case was at first instance, no matter whether it deals with vested rights or with procedure only; for, as HARMAN, L.J., pointed out (14), the retrospective Act in Quilter v. Mapleson (12) affected ‘the vested right of the landlord to recover possession. And the retrospective Act in Stovin v. Fairbrass (13) affected the vested right of the statutory tenant to remain in possession.” (Italics mine).

It is for the foregoing reasons that I dismissed the appeal in so far as the jurisdiction of the (Federal) Court of Appeal to hear the Appeal from the decision of the former Western State Court of Appeal, as I am of the opinion that that Court was competent.G. S. SOWEMIMO, C.J.N.: My learned brother, Coker, J.S.C., has given me the opportunity to read, in draft, his reasons for judgment in the constitutional point raised in the above appeal. I agree with his reasoning and conclusions.

Chief Williams, S.A.N., in his argument, adopted all the arguments in the brief. In the lead judgment containing the reasons for judgment, the ratio decidedi in the University of Ibadan vs Adamolekun (1967) 1 All NLR page 213 was dealt with. Chief Williams, S.A.N., Counsel for the Appellants, referred in his brief to what he called the Ademolekun’s-Rule, which he said was based on the judgment of the Privy Council in Colonial Sugar Refining Co. Ltd. vs Irving (1905) A.C. pages 369-373. This authority dealt with the right vested in a party who instituted a suit: his right of appeal to certain courts as existed at the time of the suit. When this matter came up for consideration in the Supreme Court, it stated, with reference to the vested right, inter alia, in its judgment as follows:-

“Dr. Ajayi (Attorney-General, Western State) has submitted that even if this section is void, the Supreme Court cannot make any pronouncement……..We feel that Dr. Ajayi’s reference to section 6 of Decree No.1 of 1966 is inept and the flaw in his argument lies in the fact that he has read section 6 in isolation.

“We think that section 6 must be read together with section 3 of Decree No.1 of 1966, and the right view, in our opinion, is that the court can enquire whether an edict is void to an extent under section 3(4) of Decree No.1 of 1966 which is the decree authorising the making of edicts within certain confined limits, and it is desirable for the Legal Advisers of a Military Governor to bear those limits in mind when drafting edicts.

“From the foregoing, we are clearly of the opinion that we can entertain the application before us, and that the appeal in question should come to the Supreme Court directly.

“We wish to add that we do not think, in the present application, we ought to deal with the argument raised before us on whether or not Decree No.13 of 1967 had the effect of suspending the Court of Appeal by reason of certain provisions in Decree No.1 of 1966 which suspended section 127 in the Constitution of the Federation and sections 52 and 53 of the Constitution of Western Nigeria. It is not our wish to do so, but it is hoped that those concerned will consider it, bearing in mind that parties in proceedings which were in existence before a Court of Appeal was set up, have a right to go from the High Court to the Supreme Court directly on appeal without going to the Court of Appeal.”

That interesting portion of the judgment of the Supreme Court brings into proper focus the attempt by the Attorney-General of the then Western Region of Nigeria to create a bar against an appellant with vested right of appealing directly to the Supreme Court of Nigeria.

I have nothing more to add to the exhaustive and excellent reasons for judgment given by my learned brother, Coker, J.S.C.

SC.259/1984