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Chief Onwuka Kalu Vs Chief Victor Odili & Ors (1992) LLJR-SC

Chief Onwuka Kalu Vs Chief Victor Odili & Ors (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

In this interlocutory appeal, the parties have held drastically different views, including the configuration of the parties to this appeal. So, parties on both sides have stated the parties widely differently. But because of an issue in this appeal, I should retain the arrangement of the parties in the ruling before the Court of Appeal which led to this appeal.

The antecedents of this appeal are as interesting as the appeal itself. From an affidavit dated 20th January, 1992, Chief Onwuka Kalu (herein designated the “person interested”), Chief Victor I. Odili, Chief N.O. Nwojo, Chief J.I. Orji and Mr. K.A. Maduka have been shareholders and directors of the respondent/Bank. The person interested has been the Chairman of the Bank since 1988 and from the various proceedings before the Court he has not been removed. There was a dispute between the different shareholders as to the quantum of shareholding of individual members. This dispute went to the Lagos High Court as Suit No.LD/17I5/90 in which all the parties to this suit were parties. This was settled by the parties on 28th December, 1990 when the terms of settlement were made a consent judgment. Another suit in the Federal High Court (Suit No. FHC/L/23/90) on the election/appointment of the members of the Board of Directors was struck out on 13/5/91. Still pending between the parties at the date of the motion which led to the order, the subject of this appeal, were Suit Nos. LD/152/91 and LD/1063/91.

Then on 18th of July, 1991, by an originating summons No. FHC/L/M104/91 served only on the Bank, the applicant, Chief Odjli alone sued the Bank in the following terms:

“(1) that an Extraordinary General Meeting of the Company may be convened by the Court for the purpose of considering and if thought fit passing the Resolution set forth in the Schedule hereto;

(2) that the Court may give directions as to the manner in which the said Meeting is to be called, held and conducted and all such ancillary and consequential directions as it may think expedient;

(3) that the costs of this application be provided for;

(4) that the applicant herein be given liberty to make ancillary application(s) hereafter to this Honourable Court as may be necessary conducive or expedient to the foregoing prayer(s).

SCHEDULE

  1. That the audited accounts for the period ending June 30, 1991 be and are hereby received and adopted.
  2. That the capital of the company be increased to forty million naira by the creation of twenty-five million shares of N1 each.
  3. That the 3rd Annual General Meeting of the Company shall be held on Thursday the 31st day of October 1991.

DATED the 10th day of SEPTEMBER 1991.

X X X X”

The application was supported by an affidavit of 14 paragraphs. Paragraph 6 of the affidavit in support runs thus;

“6. To the best of my knowledge information and belief for all practical purposes the Board is unable to act in respect of three vital and pressing matters, to wit-

(a) The consideration and submission of the audited accounts of the Bank for the period ending June 30 1991 to the General Meeting for its approval,

(b) The need to take very urgent steps necessary to comply with statutory requirements concerning its minimum nominal capital, and

(c) The need to arrange for the third Annual General Meeting.”

This application was heard on 13th September, 1991, and, as it was not opposed by Chief F.R.A. Williams, (S.A.N) for the respondent, the prayers therein were granted by Jinadu, J. sitting in the Federal High Court, Lagos. A further order of 19/9/91 was made on the application of Mr. C. Anyaegbunam, of counsel, for the respondent further implementing the orders of 13th of September. Justice Agoro, J.C.A. (rtd) was appointed chairman of the Bank for the meeting.

Then the present appellant brought an action, Suit No. FHC/L/115/91 against the Bank, the respondent, the applicants and 2 others claiming for, inter alia, an order setting aside the above order and for an injunction restraining the defendants their agents, privies and servants from convening a meeting of the Bank pursuant to the said order in suit No.FHC/L/M104/91. This was followed by an application for a stay of execution and an interlocutory injunction. Upon an objection taken by Chief Williams (S.A.N) for the Bank the learned trial Judge, Jinadu, J. struck out the suit on the grounds that the plaintiff, Chief Onwuka Kalu had no locus standi to institute the action and so the Court lacked jurisdiction to entertain it.

The plaintiff appealed against the striking out order. Further, he filed a motion in the Court of Appeal, Lagos, praying for the following reliefs:

“1. granting leave of the Court of Appeal to the Applicant/The Person Interested to appeal against the decisions orders and or directions of the Federal High Court Lagos dated 13th and 19th September, 1991 in this suit as an interested person;

  1. staying the execution of or compliance with the orders and directions of the Federal High Court Lagos presided over by Hon. Mr. Justice Jinadu, J., dated 13th and 19th September 1991 respectively in this suit pending the determination of the appeal which the applicant seeks leave of this Honourable Court to lodge thereto;
  2. directing that no steps or further steps shall be taken to hold the extra-ordinary General Meeting of Fidelity Union Merchant Bank Limited ordered by the Hon. Mr. Justice Jinadu, J. of the Federal High Court, Lagos on 13th and 19th September 1991 until the determination of the appeal which the Applicant seeks leave of this Honourable Court to lodge against it;
  3. staying any further ancillary proceedings that may be initiated under the liberty to apply granted to the respondents in this suit until the determination of the appeal which the applicant seeks leave of this Honourable Court to lodge thereto and for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.”

Chief Williams again raised a preliminary objection as to forum.

I may pause here to observe that from the parties to the motion, the applicants were stated to be Chief N.O. Nwojo, Chief J. Iro Orji, and Mr. Kalu Agwu Maduka and not Chief Onwuka Kalu who infact filed the motion for leave to appeal. This feature of the application has been made an issue in this appeal. I shall deal with this later. Suffice it to say that the Court of Appeal, per Achike, J.C.A., with whose judgment Kalgo and Tobi, J.J.C.A. concurred, upheld the objection and struck out the application on two grounds, namely;

(i) That the application ought to have been made in the first instance in the High Court, and that

(ii) The applicant had not shown any special circumstances which made it impossible or impracticable to have brought the application in the High Court first.

This appeal is against that striking out order.

Further, the appellant brought an application dated 20th January, 1992, to this Court praying, inter alia, for accelerated hearing, for a reversal of the execution of the orders and directions of Jinadu, J., made on the 13th and 19th of September 1991, for selling aside the proceedings and decisions of the Extraordinary General Meeting of the Bank held on the 14th of October, 1991, and Annual General Meeting held on the 31st of October, 1991, and nullifying all the decisions taken at the said meetings. In support of the application the appellant/applicant swore to a 42 paragraph affidavit. It appears to me that his grievances in these proceedings were summarised in paragraphs 10-18 where he deposed as follows:

“10 Although the 3rd, 4th and 5th respondents herein were not made parties to the originating summons aforesaid they (3rd, 4th and 5th respondents) in the full knowledge of:

(a) Clauses 8 and 10 of the Consent order/Compromise judgment dated 28/12/90 in Suit No. LD/12715/90 annexed and marked Exhibit “KA”.

(b) My interests and other affected registered shareholders’ interests in the shares of the Bank, and (c) The provision of section II of the Banks and Other Financial Institutions Decree, No.25 of 1991, colluded with the 1st and 2nd Respondents and applied to the Federal High Court by motion dated 17/9/91 and filed at 2.00 pm on 18/9/91 in Suit No. FHC/L/M104,91 for orders that, inter alia the resolutions set forth in the schedule to the motion regarding the transfer of shares among certain shareholders be passed and same duly ratified at the Federal High Court Ordered Extra-Ordinary General Meeting of the Bank to be held on 14/10/91. Annexed and marked Exhibit “CO” is copy of the Motion and Supporting Affidavit.

  1. My counsel, Babatunde Oshilaja advised me and I verily believed the advice that Suit No.FHC/L/M104/91 namely the Originating Summons and the subsequent Motion on notice aforesaid was and is BARRED by section 11 of the Banks and Other Financial Institutions Decree, 1991.
  2. I am in fact the substantive CHAIRMAN of the Bank and in fact the office of the CHAIRMAN of the Bank was not vacant and there was in fact no dispute or conflict whatsoever about Appellant/ Applicant being the CHAIRMAN of the Bank for the time being in office and I (Appellant/Applicant) was in fact not incapacitated in any way nor suffer any disability recognised by law to disqualify me from so acting.
  3. There were in fact no facts whatsoever canvassed in the affidavit of Chief Victor I. Odili in support of the Originating Summons why I (Appellant/Applicant) should not, as usual, preside at any meeting of the Bank.
  4. The orders/directions of Hon. Jinadu, Judge, dated 13/9/91 in Suit No. FHC/L/M104/91 appointing Hon. Justice I. O. Agoro (retired) Justice of the Court of Appeal as the Chairman of the Ordered meeting of the Bank was in fact made without giving me as the substantive Chairman of the Bank any hearing.
  5. In fact the aforesaid Order of Jinadu, Judge, deprived me of my individual right and privilege of being the CHAIRMAN of the Bank for time being conducting or presiding or acting as CHAIRMAN at its Extra-ordinary General Meeting and the 3rd Annual General Meeting aforesaid and it has continued to deprive me of the right to preside at Board of Directors Meetings or such other meetings of the Bank howsoever described.
  6. I was in fact not and never made a party and I was in fact never informed or put on notice and the knowledge never in fact came to me and I was in fact completely unaware of the existence or and pendency of Suit No.FHC/L/M104/91 its hearing or trial and the consent order granted therein on 13/9/91 and 19/9/91 and I did not and could not in fact have applied to be made a party thereto and the whole case was in fact conceived contrived and concluded behind my back and without regard for or to my live interests either in my individual personal or corporate capacities in the Bank in the matter placed before the Federal High Court. Annexed and marked Exhibit “C and C2” are the Orders of Hon. Mr. Justice Jinadu, Judge dated 13th and 19th September 1991 respectively in the aforesaid Suit.
  7. While the respondents in fact brought the motion against the Bank who is not the registered shareholder of the shares involved the respondents at one and the same time in fact ignored, refused or failed to join any of the affected registered shareholders or directors of the Bank in suit No. FHC/L/M104/91 so that there was in fact nobody whose interest was affected by the Originating Summons and the subsequent Motion on Notice at the Federal High Court in the aforesaid Suit to challenge, contradict, dispute or oppose the affidavit evidence placed before the Court in FHC/L/M104/91.
  8. The 3rd, 4th and 5th respondents herein purportedly resiled from and failed to carry out or and breached the agreement contained in the clauses 8 and 10 of consent judgment exhibit “KA’ herein by entering into litigation in the Suit No. FHC/L/M104/91 aforesaid in respect of matter in fact involving or relating to shares held by registered shareholders in the Bank.”

Because we could not see our way through that part of the application which seeks to deal with substantive issues in view of the real issues before the Court in the appeal, we accelerated the hearing and reserved our opinion on the point till this judgment in the appeal.

With respects, it appears to me to be incomprehensible how this Court can assume jurisdiction to pronounce on those substantive issues either in the motion before the Court or in this appeal. This is because apart from matters which come under section 212 of the Constitution in that they relate to disputes between the Federation and a State or between States, the jurisdiction of the Supreme Court is wholly appellate (for this see section 213 of the Constitution). This means that outside section 212, the Court can only adjudicate on a matter where there has been a decision on the matter by the Court of Appeal followed by a proper appeal to this Court from that decision of the Court of Appeal. For this purpose, there are two different rights of appeal to this Court from such a decision: it could either be as of right under section 213(2) or by leave under section 213(3) or 213(5). As in this appeal the real issue is whether or not the application for leave to appeal as a person interested was rightly struck out, this Court has no jurisdiction to go into the substantive issues raised in the motion papers until it can come to the conclusion that the Court of Appeal had adjudicated on them, and that there is a valid appeal on them before this Court. It is trite that a Court must have jurisdiction before it can exercise judicial power over an issue: see Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296; Attorney General, Bendel State & Ors. v. PLA. Aideyan (1989) 4 NWLR (Pt.118) 646. I shall therefore disregard or strike out all the prayers to the appellant’s motion dated 20th of January, 1992, which go to the merit of the case. Counsel may do well to remember that a party may have the most meritorious of cases; but that unless and until it has validly and properly been brought before the adjudicating Court or tribunal, the party affected by it will be without a remedy.

As I stated earlier, being dissatisfied with the decision of the Court of Appeal striking out its application for leave to appeal as a person interested, the appellant by his counsel, Mr. Oshilaja, appealed to this Court. He filed one ground of appeal which runs thus:

“Ground 1

the learned Justices of the Court of Appeal misconstrued or misinterpreted or and misapplied the provisions of section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979. Particulars of mis-construction or mis-interpretation or and misapplication

(a) By holding that the liberty or option of the appellant guaranteed under section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979 to seek leave of either the High Court or the Court of Appeal to exercise his right of appeal as person having an interest in the matter is surbordinated to the provisions of Order 3 Rule 3(4) Court of Appeal (Amendment) Rule 1984.

(b) By failing to recognise that the language of the Constitution of the Federal Republic of Nigeria 1979 mean, what it says and that in view of the provisions of section 1(1) of the said Constitution it is the provisions of Order 3 Rule 3(4) Court of Appeal (Amendment) Rules, 1984 made pursuant to section 227 of the said Constitution as a delegated legislation that ought to accord, conform, reconcile and be consistent with the terms of section 222(a) of the Constitution aforesaid and not vice versa.

(c) By making a wrong determination on the interpretation or application of the 1979 Constitution with regard to the option of the appellant to apply either to the High Court or Court of Appeal to seek leave to appeal as person having, interest in the matter.”

By motion, the appellant sought and was granted leave to amend his notice of appeal by filing two additional grounds. As a result, he filed the following additional grounds of appeal:

  1. Error of Law

The learned Justices of the Court of Appeal erred in law when they gave a wrong decision on a question as to the interpretation or application of constitutional law .

Particulars of Error in Law

(a) By holding that Order 3 Rule 3(4) Court of Appeal. (Amendment) Rules 1984 is “an Act of the National Assembly”.

(b) By holding that the exercise of seeking leave of the High Court or Court of Appeal under Section 222 (a) of the 1979 Constitution is at the end of the day SUBJECT to the operation of Order 3 Rule 3(4), an Act of the National Assembly.

(c) By holding that section 222(b) of 1979 Constitution justifies the learned Justices of the Court of Appeal in holding that Order 3 Rule 3(4) Court of Appeal Rules 1984 nullified the actual terms words provisions intent or purpose or and effect of section 222(a) of 1979 Constitution.

(d) By considering and applying the cases of:

(i) Otto v. Lindford (1888) 18 Ch.D. 394

(ii) Shodeinde v. The Registered Trustees of the Ahmadiya Movement in Islam (1980) N.S.C.C.

70;

(iii) Ojora v. Odunsi (1964) N.S.C.C. 34 in holding that Appellant’s application for leave to appeal should pursuant to Order 3 Rule 3(4) aforesaid have been brought/made in the first instance in the Federal High Court, Lagos when there was no coincidence of legally material facts and the judicial authorities relied upon were distinguishable and not in point or applicable to the special factual circumstances and proceedings under the 1979Constitution as in the Appellant’s application for leave brought under section 222(a) of 1979 Constitution and none of those cases was decided in the con of section 222(a) of the 1979 Constitution of the Federation.

(e) The decision of the Court of Appeal in this case renders the provisions of Section 222(a) of the 1979 Constitution empty letters and a futility and enables the learned Justices of the Court of Appeal to deny the Appellant his unconditional access to either the High Court or Court of Appeal guaranteed by the Constitution and thereby perpetrate or and perpetuate a miscarriage of justice.

(f) The result of the legal effect of the decision under appeal herein produces a futility with regard to the option guaranteed and assured to the Appellant and enshrined in Section 222(a) of the 1979 Constitution of the Federation.

  1. Error of Law

The learned Justices of the Court of Appeal erred in law when they failed to NULLIFY the purported preliminary objection on the ground of incompetence.

Particulars of Error in Law

(a) By the nature of the action/proceeding there is a feature an inherent defect, a lack of legal merit in the purported preliminary objection which prevents the Court of Appeal from exercising its jurisdiction.

From this ground of appeal, he formulated the following issues for determination in the appeal, namely:

(a) Whether or not the Court of Appeal (Amendment) Rules, 1984, is an Act of the National Assembly.

(b) Whether or not the provisions of section 222(a) of the Constitution of the Federal Republic of Nigeria 1979 GIVES the appellant as a PERSON HAVING AN INTEREST IN THE MATTER any option or liberty to seek LEAVE of EITHER the High Court or Court of Appeal to exercise his RIGHT OF APPEAL as person interested conferred by the Constitution.

(c) Whether or not the exercise of seeking leave of the High Court or Court of Appeal by the appellant as PERSON HAVING INTEREST IN THE MATTER under section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979 is, by itself and without more, a RIGHT OF APPEAL under or in the con of section 222 of the 1979 Constitution of the Federal Republic of Nigeria.

(d) Whether or not there is ANYWHERE OR WHEREVER under the Court of Appeal (Amendment) Rules, 1984 where the appellant as “PERSON HAVING INTEREST IN THE MATTER” under section 222(a) of the Constitution is “DIRECTED” to apply or give notice of his application for LEAVE to appeal either to the Court below (High Court) or the Court of Appeal.

(e) Whether or not Order 3 Rule 3(4) of the Court of Appeal (Amendment) Rules 1984 is applicable to the facts and circumstances of the appellant’s case or is consistent therewith in the con of section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979.

(f) Whether or not the Preliminary Objection dated and filed at the Court of Appeal, Lagos on 28/10/91 on behalf of FIDELITY UNION MERCHANT BANK LIMITED was, in terms, against the appellant’s Motion/Application seeking leave of the Court of Appeal under section 222(a) of the 1979 Constitution of Nigeria.

(g) Whether or not there is a feature an inherent defector a lack of legal merit in the Preliminary Objection dated and filed al the Court of Appeal, Lagos on 28/10/91 on behalf of FIDELITY UNION MERCHANT BANK LIMITED which prevents the Court of Appeal from according competence to the Preliminary Objection or and validly exercising its jurisdiction thereon,”

I may pause here to observe that the above so-called issues are rather argument of appeal. The appellant filed three grounds of appeal and therefrom formulated seven so-called issues. This is unusual. Counsel will do well to remember that an issue for purposes of an appeal is something much more weighty that the seven split pieces for argument which he called issues. As we have said before on several occasions, an issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed, and no more, but also must be such a proposition of law or of fact or both so cogent, weighty, and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court; see Chukwuma Okwudili Uga v. Amamchukwu Obiekwe & Anor. (1989) 1 NWLR (Pt.99) 566, p.580; Standard Consolidated Dredging & Construction Co. v. Katoncrest Nigeria Ltd. (1986) 5NWLR (Pt.44) 791, p.799; Okoye v. N.C.F. Co. Ltd. (1991) 6 NWLR (Pt.199) 501. This is why as a manner of practical facts, an issue emerges from one or more grounds of appeal filed not usually the other way round. It certainly serves no useful purpose to pick out isolated statements of the Court whose judgment is appealed from and make “issues” of them. Issues are intended to not only focus on the vital areas of conflict in the appeal but also serve as spring boards for argument: they are not intended to constitute arguments themselves.

Learned Senior Advocate for the respondents, Chief Williams, (S.A.N) formulated two issues, as Jollows:

“(ii) Whether a person who claims to have an interest in the subject matter of civil proceedings before the Federal High Court is entitled to apply directly to the Court of Appeal for leave to appeal under section 222(a) of the 1979 Constitution without having applied in the first instance to the Federal High Court for such leave. (i) Whether the Supreme Court has jurisdiction to entertain an appeal from a decision of the Court of Appeal declining (for whatever reason) to grant leave to appeal from a decision of the Federal High Court.”

In my view, respondents’ issue marked (ii) together with issues (b) and (f) by the appellant fairly encapsulate the real issues for determination which arise from the grounds of appeal filed. Respondents’ issue No.(i) is a point of jurisdiction which can fairly be raised on the contentions in the appeal.

Arguing the appeal, learned counsel for the appellant submitted that the Court of Appeal is a creature of section 217(1) of the Constitution, 1979; that its jurisdiction is both constitutional (under section 219 of the Constitution) and statutory (under section 8(1) of the Court of Appeal Act, Cap.75 of 1990) and that its procedure should be as under the Court of Appeal Act – an Act of the National Assembly and the Court of Appeal Amended Rules, 1984 – a delegated legislation. He submitted that the Court of Appeal Rules can never be regarded as an Act of the National Assembly and so has no basis in popular consent in Nigerian constitutional jurispudence, being made only by the President of the Court of Appeal. Being a judicial legislation it is different from an Act of the National Assembly. So order 3 rule 3(4) of the Court of Appeal Rules cannot rightly be described as an Act of the National Assembly under either section 222(b) or 227 of the Constitution. He pointed out that the Court of Appeal Rules were made expressly subject to section 227 of the Constitution and so cannot over-ride the Constitution.

Counsel submitted that the appellant was recognized by the Constitution merely as a person interested who weeks leave to exercise the right of appeal; he is yet to be admitted as an appellant, he submitted. So the rules, including Order 3 rule 3(4), are not applicable to him. Application to exercise a right cannot be the same with exercise of that right. So, appellant has by the ruling of the Court of Appeal been wrongly prejudiced.

He submitted that the exercise of seeking leave under section 222(a) of the Constitution is not by itself, without more, a right of appeal under the section. So, such a person has an unrestricted right of applying either to the High Court or the Court of Appeal for such a leave. But such a person does not exercise the right of appeal. In his submission, section 222 deals with exercise of right of appeal and not with that of seeking leave.

He then submitted that Order 3 rule 3(4) does not apply to the appellants application for leave. The Court of Appeal was wrong to have applied the rule in such a way as to nullify the appellant’s right under section 222 of the Constitution.

The right given by that section is sui generis and is not a right of appeal but something lower than that; so a stage had not been reached for invoking rules relating to leave to appeal. He cited some cases decided under section 117(6) (a) of the 1963 Constitution in support of his submission on this point. Those cases are:

Thanni v. Adegboyega (1971) N.S.C.C. 42, (1971) NMLR 369

Nta v. Anigbo (1972) S.C.C. 357, p.366-7

Ubagu & Ors v. Okachi & Ors. (1964) 1 All N.L.R. 36.

In the alternative, counsel submitted that if he is over-ruled, then the Court should regard the facts that the appellant has an interest in the subject matter of Suit No. FHC/L/M104/91, but was unaware of the pendency of the suit and was neither made a party to the suit nor served as special circumstances which would entitle him to bring the application in the Court of Appeal in the first instance, rather than the High Court. Further, he submitted that if the appellant’s failure to go to the Court of Appeal first was a procedural irregularity such should be excused because section 1(1) of the Constitution makes it the supreme law of the land and superior to any subsidiary legislation. He cited Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 828. So the Court of Appeal should have heard application on its merits: Okonjo v. Odje & Ors. (1985) N.S.C.C. 1276, (1985) 10 S.C. 267.

He further submitted that the application by the appellant as a person interested is not contemplated by the Court of Appeal Rules and so Order3 rule 3(4) is not applicable to this case. Otapo v. Sunmonu & Ors. (1986) 1 N.W.L.R. (P1.58) 344, he submitted, supports his contention that an applicant for leave to appeal under section 222(a) of the Constitution has an unlimited choice to file his application either in the High Court or the Court of Appeal.

I believe it is fair to say, with respect, that from the tenor and content of the argument of learned counsel for the appellant, that there has been a total mis-conception of the significance of rules of practice and procedure generally as well as the true significance and intendment of the Court of Appeal Rules of 1981, as amended by the Court of Appeal (Amendment) Rules, 1984. It is my view that abstract statements of legal principles without effective rules of practice and procedure usually avail little or nothing. In terms of dry statements of legal norms, the African Chatter of Human and Peoples Rights, for example, is at least as good, if not better, than the European Convention on Human Rights. But because of the presence of rules of practice and effective machinery for enforcement of the latter, it has been such a big success whereas the former is virtually a dead letter because of the absence of both rules of practice and machinery for enforcement. Coming home, between 1960, when fundamental human rights were introduced into the Nigerian Constitution, and 1979, when the Fundamental Rights (Enforcement Procedure) Rules were promulgated, cases on human rights were few and far between. There has been a phenomenal increase in such cases since 1979. Rules of practice and procedure have, therefore, usually been introduced and applied to make determination and enforcement of human and civil rights and obligations possible and effective.

Obviously conscious of the importance of rules of practice and procedure, if rights and obligations intended to be enforced under the Constitution can be real and effective, the Constitution itself has provided for and contemplated the making of such rules for, among, others, the Court of Appeal. Hence it is provided in sections 222(b) and 227 of the Constitution 1979 as follows:

“222. Any right of appeal to the Court of Appeal from the decisions of a High Court conferred by this Constitution

(b) shall be exercised in accordance with any Act of the National Assembly or Decree and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

X X X X

  1. Subject to the provisions of any Act of the National Assembly or Decree, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.”

So, contrary to the attempt of learned counsel for the appellant to belittle the importance of the Court of Appeal Rules, 1981, for the determination and enforcement of rights and obligations, those Rules though made by the President of the Court of Appeal as a delegated legislation, have a constitutional flavour and were in fact contemplated by the Constitution itself. They prescribe the procedure for the determination and enforcement of rights. Without them those rights could be useless and ineffective. They also regulate how those rights can properly be exercised. A claimant or applicant for those rights is expected to ask for them in accordance with the rules of practice and procedure made for the purpose. Failure to follow those rules may spell a disaster for the application or claim for the right. These hard facts have been realised over the centuries. Sir Henry Maine in his Early Law and Custom complained that substantive law had the appearance of being concealed in the interstices of procedure”. More recently Mr. Justice Frankfurter in the case of McNab v. United States 318 U.S. 206 well said:

See also  Mrs Hawa Gankon V. Ugochukwu Chemical Industries Ltd. (1993) LLJR-SC

“The history of liberty has largely been the history of the observance of procedural safeguards.”

Indeed that is all that “due process” is all about.

I do not understand the distinction which learned counsel for the appellant has tried to make between a person who applies for leave to appeal as a person interested and a person who applies for leave; that a person who is applying for leave to appeal as a person interested is taking a step, one step lower than one who applies for leave to appeal and is not yet an appellant. Section 222(a) of the Constitutions provides as follows:

“222. Any right of appeal to the Court of Appeal from the decisions of a High Court conferred by this Constitution-

(a) shall be exercisable in the case of civil proceedings at the instance of a party therero, or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed. ”

The Ipsissimi verbis of section 222(a) of the Constitution say that what such a person is seeking is leave to appeal. I do not see how or from where one can read into sub-section (a) any intention that what such a person is taking is a preliminary step to seeking leave. I find it extremely difficult to agree with learned counsel for the appellant that Order 3 rule 3(4) was not made to be applicable to a person who is seeking leave to appeal as a person interested. The wise men who made the Constitution expressly stated in sub-section (b) of section 222 that any right of appeal under the section, which by definition under section 31 of the Court of Appeal Act, to be dealt with below, includes a person who applies for leave to appeal, shall be exercised

“In accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

Order 3 rule 3(4) is one of such rules. It applies and regulates the exercise of the right of appeal. Hundreds of cases decided by this Court as well as the Court of Appeal have always assumed or held that what an applicant such as the appellant is seeking for is leave to appeal.

I do not see how cases decided under section 117(6) (e) of the 1963 Constitution which were cited by counsel support his contention. To take Ubagu & Ors. v. Okachi & Ors. (supra), the ratio runs thus:

“If any of the other people of Awha (i.e. other than the named o defendants) consider themselves aggrieved by the order of the High Court, they are persons having a right of appeal under section 117(6)(e) of the Constitution of the Federation and it is for them to exercise that right if they wish to obtain a variation in the judgment of the High Court.” (parenthesis and italics mine)

It is clear that, contrary to the contention of counsel in this case, the Supreme Court in that case considered those other interested persons of Awha other than those named as defendants in the suit as a persons having a right of appeal, though by leave. As for his attempt to distinguish between seeking leave and exercising the right of appeal in this respect, it is noteworthy that section 31 of the Court of Appeal Act, No.43 of 1976, now Cap. 75 Laws of the Federation of Nigeria, 1990, defines “appeal” and appellant thus:

“appeal” includes an application for leave to appeal; “appellant” means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave so to appeal, and includes a legal practitioner representing such a person in that behalf.”

It is clear from these definitions that by the express words and intendment of the Act of the National Assembly which learned counsel for the appellant relies upon, for purposes of the matter under consideration, a person who applies for leave to appeal as a person interested or otherwise is regarded as a person exercising his right of appeal. There is no basis for regarding him as a person who is merely taking a preliminary step before he can exercise the right to apply for leave to appeal. It appears to me also that learned counsel for the appellant totally misconceived what could amount to special circumstances which could make it impossible or impracticable to have brought the application first in the High Court. He has submitted that the facts that Suit No. FHC/L/M104/91 in which he had interest was pending but that he did not know and was not made a party were such special circumstances. In my opinion, these were the facts which an applicant for leave to appeal as a person interested had to prove in order to be let in to appeal either by the High Court or the Court of Appeal: see Chief Emeka Odumegwu Ojukwu v. Military Governor of Lagos State & Ors. (1985) 2 NWLR (Pt.l8) 806; Mbanu v. Mbanu (1961) 11All NLR 652, (1961) 2 SCNLR 305; Akinola Maja v. Johnson (1951) 13 WACA 194. Those facts were not special circumstances to warrant his filing the application first in the Court of Appeal rather than in the High Court. In my opinion, special circumstances in the con of order3 rule 3(4) of the Court of Appeal Rules, 1981, are, in the very words of the rule, circumstances which will make it impracticable or impossible for the applicant to file his application first in the High Court. Such circumstances are usually matters ulterior to the merit of the application. One obvious example is where time to appeal had elapsed before the applicant became aware of the decision to be appealed against. Then, as leave to appeal must have been obtained and appeal filed within the statutory period to appeal, it would be impossible or impracticable to apply in the High Court first. The High Court has in fact lost the power to grant leave in such a case. In the instant case, it was common ground that the decision appealed against was final and not interlocutory. The orders were made on the 13th and 19th of September, 1991, and on appellant’s own showing, he became aware of the decision on the 4th of October. As time to appeal had not yet elapsed, this usual special circumstance could not avail him. The fact is that because of learned counsel’s total misconception of the issue or his refusals to face it, he has failed or refused to advance any other reason. Rather he submitted that Order 3 rule 3(4) does not apply to the case of an applicant for leave to appeal as a person interested. He contended that section 222 of the Constitution clearly gives to such a person the right to apply to the High Court or to the Court of Appeal for leave to appeal. Order 3 rule 3(4) of the Court of Appeal Rules cannot rightly be interpreted and applied in such a manner as to deprive such a person of that right, he submitted. He can elect in which of the two Courts to make his application for leave.

Learned Senior Advocate for the respondents submitted that the two Courts have concurrent and not co-ordinate jurisdiction in the matter. Because an appeal lies from the High Court to the Court of Appeal, the latter cannot be described as a Court of co-ordinate jurisdiction in the matter. In support he cited the cases of Attorney-General v. Swansea Improvement Company (1878) 9 Ch.D. 46; Cooper v. Smith (1883) 24 Ch.D 305.

I do not think that our solution to the problem should be found in definition of the terms “co-ordinate” and “concurrent”. For somehow the meanings of the two words are not always clearly differentiated. Whartons Law Lexicon (14th Edn) at p.228 defines concurrent jurisdiction as that of several tribunals “which are authorized to deal with the same subject-matter”. It is in the same sense that Oxford English Dictionary defines the word as:

“covering the same ground having authority or jurisdiction on the same matters; co-ordinate” (Italics mine)

So, concurrent and co-ordinate appear to be interchangeable. Further it defines “co-ordinate” as “of the same order; equal in rank, degree or importance

It appears clear to me that the two words mean practically the same thing.

But in my respectful opinion, the problem posed by this aspect of the appeal is not that of categorization but of construction. It is what meaning that must be placed on sections 222(a) and (b) and 227 of the Constitution read together with Order 3 rule 3(4) of the Court of Appeal Rules, 1981.

I have already set out above sections 222 and 227 of the Constitution, and so need not repeat them. It is left for me to set out the provisions of Order 3 rule 3(4) of the Court of Appeal Rules, 1981 (as amended by the Court of Appeal Rules of 1984). These Rules, as I stated, were made by the President of the Court under powers expressly vested in him by the Constitution. For that reason they could be said to be a mirror of the Constitutional intention. Order 3 rule 3(4) of the Court of Appeal Rules, 1981 provides as follows:

“3(4) Wherever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances which make it impossible or impracticable to apply to the Court below”.

Implicit in the very words of Order 3 rule 3(4) of the Court of Appeal Rules, 1984, is the fact that the type of election, whether to apply first in the High Court or the Court of Appeal which appellant’s counsel relies upon does not exist. The applicants first port of anchor is the High Court, unless he can show special circumstances for any departure from the express words of the rule. It appears clear to me-

(i) That section 222(a) of the Constitution gives to a person who was not a party to a decision in a civil proceeding by the High Court but who has an interest in the matter to appeal against the decision with the leave of the High Court or of the Court of Appeal.

(ii) That the right of appeal with leave shall be exercised in accordance with any Act of the National Assembly and rules of Court for the time being regulating the practice and procedure of the Court of Appeal (section 222(b) of the Constitution).

(iii) That the President of the Court of Appeal is vested with the power to make such rules (section 227 of the Constitution).

(iv) That the rules made therefore by the President of the Court of Appeal requires that the application for such leave shall be filed in the first instance in the High Court unless there are special circumstances which make it impossible or impracticable to file the application first in the High Court (Order 3 rule 3(4)).

So even though the two Courts, the High Court and the Court of Appeal have concurrent jurisdiction in the matter in the sense that both have the jurisdiction to grant leave, the rule made under the authority of the Constitution itself directs that the application shall first be made in the High Court. The provisions are clear. So, any application filed in the Court of Appeal in the first instance is one filed by noncompliance with the rule. Learned counsel for the appellant was therefore in error when he submitted that the appellant had a right to elect in which of the two Courts he could file his application. Such is contrary to the letters of the Constitution and the rule which should be read together with them. The application could have been rightly filed in the Court of Appeal if special circumstances making it impossible or impracticable to have filed the application first in the High Court were shown. None was, however, shown.

The case of Otapo v. Sunmonu (supra) which was cited by learned counsel for the appellant is, with respects, deadly against his contention. It certainly does not support the filing of the application in the Court to which the appeal lies. For in that case, the issue was leave to appeal to the Supreme Court from a decision of the Court of Appeal. Leave was sought and obtained in the lower Court, that is the Court of Appeal and not in the Supreme Court. If in this case, the application was brought in the High Court, all the argument in this appeal would not have arisen.

Further, learned counsel submitted that filing the application in the Court of Appeal in the first instance rather than the High Court was an irregularity, and so should be overlooked. He gave no reason why the rule of Court could not be complied with or why the non-compliance with the rule of the Court should be overlooked. In my view this is against an established principle. For the clear principle is that rules of Court must prima facie be obeyed. If there has been a noncompliance with the rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the Court can be granted. See on this N.A. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (pt. 1) 1, at p.5; Revici v. Prentice Hall Incorpoted & Ors. (1969) 1 All E.R. 772, at p.774; also Bank of Baroda v. Mercantile Bank Ltd. (1987) 3 NWLR (pt.60) 233, p.239. It is certainly not the law that because a non-compliance with a rule of Court is an irregularity, it could be overlooked without any reason. I must emphasize that there is a vast difference between a proceeding which is a nullity and one which is an irregularity for non-compliance with the rules. While the former is null and void and without any effect, the latter is valid and subsisting until it is set aside. And it can only be set aside if the person affected by it acts timeously and before taking a fresh step in the proceedings on becoming aware of the irregularity: see Pontin v. Wood (1962) 1 Q.B. 594; also Tozier v. Hawkins (1885) 15Q.B.D. 650. In the instant case the default was made in the Court of Appeal. When the other party raised a preliminary objection on it, the appellant defended the step and that Court ruled against him. It is only here, on appeal that he has asked for it to be overlooked because it is an irregularity. If he ever had a right for it to be waived, he has lost it by continuing with the proceedings till now.

I do not intend to consider the alternative submission of the learned Senior Advocate for the respondents that what would have been applied for the application was Order 3 rules (2) and (3). The simple reason for this is that they were not the rules upon which the Court of Appeal upheld the preliminary objection and struck out the appeal. I do not see how an examination of these rules could help this appeal one way or the other. For the main function of this Court, as indeed, every appellate Court, is to see whether the Court whose decision has been appealed against was right on the point canvassed before it.

Finally learned counsel for the appellant submitted that the preliminary objection was not against the motion of which the appellant was the applicant in the Court below but against one purportedly filed by the 3rd, 4th and 5th respondents who filed no application before the Court.

It is true from the of the motion which I have copied above that to a certain extent, learned counsel for the appellant is right. But then, as Chief Williams pointed out, the preliminary objection was argued by both sides on the basis that it was directed against the application filed by the appellant. The rulings of the learned Justices of the Court of Appeal were also on that basis. As it is so, it appears to me to be correct, as Chief Williams contended, that nobody was misled. So, there was no miscarriage of Justice. In such circumstances, I am bound to take the view that it was a mutual slip. It is settled that any error or slip committed by the Court below which can lead to an appeal from the decision being allowed must be substantial in the sense that it led to a miscarriage of justice. In other words, where such an error does not lead to a miscarriage of justice an appellate Court will not interfere. See on this; Onajobi v. Olanipekun (1985) 4 S.C. (Pt.2) 156, p.163; also-Ayeni v. Sowemimo (1982) 5 S.C. 60, p.74.

It is left for me to examine briefly the point raised by Chief Williams in respondent’s 1st issue for determination as formulated by him. That issue is whether the Supreme Court has jurisdiction to entertain an appeal from a decision of the Court of Appeal declining to grant leave to appeal from a decision of the Federal High Court.

He submitted that although the word “decision” in section 277 of the Constitution is couched in very wide terms, it ought not to be considered so as to embrace the grant or refusal (for whatever reason) of an application for leave to appeal. To do so will defeat the purpose of providing for grant of leave by the High Court or the Court of Appeal: Ex parte Stevenson (1892) 1 Q.B. 609, p.612. The need for limiting the scope of the word “decision” in relation to the refusal of leave to appeal stems from “the nature of the thing and the object of the legislature in imposing this fetter on appeals”. He also cited Lane v. Esdaile (1891) A.C.210 and Bland v. Chief Benefit Officer (1983) 1 WLR 262 and concluded that the word “decision” in sections 220 and 221 of the 1979 Constitution should be construed’ with this restriction in mind. They are not appealable, he concluded.

Learned counsel for the respondent replied to this point in his reply brief. He submitted that the point should be decided on a proper interpretation of the Nigerian Constitution. The refusal or granting of leave is appealable, he submitted.

Now, the tenor of the argument of learned Senior Advocate for the respondents raises once more the vexed questions of our proper approach to the issue of construction of our own Constitution and statutory provisions as well as when to follow and apply decisions of English Courts. On the first question, it is, I believe a wholly unacceptable approach to begin a construction of our Constitution or statutory provision by referring to decisions of Courts in England, America or elsewhere and end up by simply applying them to the situation in hand. The correct approach is, and ought to be, to construe our own local provisions, constitutional or otherwise. If in the process we find, say, an English statute in pari materia with our own, the construction given to it by a competent English Court will be a useful persuasive guide to the interpretation we may reach. Udoma, J.S.C. said much the G same thing in Rafui Rabui v. The State (1981) 2 N.C.L.R. 293, at p.327 where he stated:

“I might add that in my opinion, it is not a correct approach to the proper interpretation of our present Constitution to begin by looking to the meaning or interpretation of a statutory provision or Constitution of other countries with different workings. But of course, foreign constitutions or statutes with identical provisions accepted as in pari materia with the relevant provisions of our Constitution will naturally carry some weight in their persuasive influence, bearing in mind always, that even in such cases, circumstances may be at variance. (See Olaleke Obadara & Ors v. President, lbadan West District Council Grade ‘B’ Customary Court, lddo (1965), NMLR 39).

In this case I consider it to be my duty to interpret the relevant provisions of the Constitution of 1979, particularly sections 222 and 277 and, if the is explicit, to regard the as conclusive as to whether it intends that a decision granting or refusing leave to appeal is appealable: see on this Attorney General for the Province of Omario & Ors v. Attorney-General for the Dominion of Canada (1912) A.C. 571, at pp.583-584. The only caveat I must adhere to, I think is to bear in mind the fact that what I am construing is a Constitution, an instrument of government under which laws are made and which will form the acid test for legislators and other functionaries of government, and not mere Act or Law. This imposes on me the extra duty of ensuring that though I shall not ignore the words used, yet, being a construction of a constitution. I should construe the words with liberalism and prefer a wider to a narrower meaning in order to bring out their true intention. See Attorney-General for New South Wales v. Brewery Employees Union of South Wales (1908) 6 C.L.R. 496, pp.611-612; the Bank of New South Wales v. The Commonwealth (1947-48) 76 C.L.R. at p.332.

Also I shall approach the decisions of English Courts which learned counsel for the respondents has cited in support of his argument that decisions of the Court of Appeal refusing or granting leave are not appealable on set principles. Decisions of English Courts are treated with optimum respect by all the Courts in this country. But they have only persuasive effect and not binding authority in Nigerian Courts. Pursuant to these, this Court has worked out a number of principles that should guide it and other Courts when English judicial decisions are cited before it in a case. Where there is a local legislation on a point at issue, then that should be interpreted and applied to the situation; no matter what English Courts decided on the point. Where, however, the English decision is based on an English statute which is in pari materia with our local enactment or on a principle of the common law or equity which has been received in Nigeria, then such a decision will usually be followed by the Nigerian Court. Conversely, when there is a local legislation on an issue, the Nigerian Court has no business with an English statute, excepting, of course. it is in pari materia with the Nigerian statute, so that decisions of competent English Courts on such in pari materia statutes will have persuasive effect on the Nigerian Court. See on these:

Laibru Ltd. v. Building & Civil Engineering Contractors Ltd. (1962) 1 All NLR 387, (1962) 2 SCNLR 118;

Adigun v. Attorney-General, Oyo State (1987) 2 NWLR (Pt.56) 197;

Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 664.

It is from the above principles that I shall now consider the point raised by the Learned Senior Advocate for the respondents. It is my view that as the Constitution of Nigeria, 1979 has ample provisions on leave to appeal by a person who has an interest in the matter, it is the construction of those provisions and not the opinions of English Courts based on the common law that should govern the situation. Now, “decision” is defined in section 277 of the Constitution “in relation to a Court” as meaning-

“………………………..any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”

It can be seen that the word is given a very broad meaning by the Constitution itself. As I have shown above, those words ought to attract liberal interpretation. It is, of course, settled that when a statute defines a word, that word shall not only be applied in the statute in accordance with the definition but also shall be so applied wherever the word is used in the statute. See on this: Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130, at pp.219/230. So I must assume that the above definition of the word “decision” was so used in section 222 of the Constitution. I do not find any warrant or authority for excluding the meaning of the word when a decision relates to granting or refusing leave to a person interested to appeal. I must advise myself that in this country in which the provisions for leave has been enacted into the provisions of the Constitution, a Court has not as much liberty to depart from the words used as one faced with the interpretation of a principle of the common law. It appears to me that the right to appeal from a decision with leave under section 222(a) of the Constitution includes the exercise of that right with respect to refusal or granting of leave to appeal by a person interested or otherwise. I, therefore, find it difficult to agree with learned counsel for the respondents that such decisions are not appealable.

The conclusion I have reached is that such decisions are appealable but that the application for leave to appeal therefore must be filed in the first instance in the High Court unless the applicant shows that there are special circumstances, such as loss of jurisdiction by effluxion of time, which make it impossible or impracticable to bring the application in the High Court first.

For the above reasons, this appeal fails and is dismissed. I affirm the striking out of the application as having been filed in the wrong Court and failure to show that there were special circumstances for so doing.

I assess and award costs in the sum of N1,000.00 against the appellant in favour of the respondents.

A. G. KARIBI-WHYTE, J.S.C.: On the 12th December, 1991 the Court of Appeal, Lagos Division, struck out the application of Chief Onwuka Kalu, seeking leave F to appeal as a person interested. This was sequel to the ruling on the preliminary objection by Fidelity Union Merchant Bank Ltd, 2nd Respondent to the application. The appeal before us is against the ruling of the Court of Appeal.

I have had the opportunity of reading the judgment of my learned brother, Nnaemeka-Agu, JSC, I agree with his reasoning that this appeal be dismissed. I only wish to make my own contribution to the issues canvassed in this appeal.

The material facts of this case, concisely stated, are, as follows:-

Appellant, the 1st, 3rd, 4th and 5th Respondents are shareholders of the 2nd Respondent, Fidelity Union Merchant Bank Ltd. Appellant claims, and is not disputed, that he is the Chairman of the 2nd Respondent Bank. It is also not in dispute that Appellant is one of the three original promoters/directors of the 2nd Respondent Bank. There are now disagreements among members of the Board of the Respondent Bank culminating in a series of actions in the Courts. In suit No. LD/152/91, Felix Ejeekan & Ors. v. Chief Onwuka Kalu & Ors; there is an action challenging the validity of the ownership and transfer of shares in the 2nd Respondent Bank. In LD/175/90 Chief K.I Onuma & Ors v. Chief Onwuka Kalu & Ors, the election/appointment and membership of the Board of Directors is being challenged. Also in FHC/L123/90, and LD/106/91 Alhaji Malumfashi & anor., v. Fidelity Union Merchant Bank Ltd., the same parties are challenging the election/appointment and membership of the Board of Directors of the Bank.

While the action in Suit No. LD/152/91 was pending in the High Court of Lagos State, Basic Trust Ltd, applied to be joined and was made party to the action. Subsequent to being joined, they brought an application to strike out the action on the ground that it was not maintainable in law. Again, whilst this action was pending, the 1st and 2nd Respondents who were the 3rd and 4th plaintiffs issued an originating summons in the Federal High Court in Suit No. FHC/L/M104/91 dated 10th September, 1991 praying the Court to exercise powers conferred under section 223 of the Companies and Allied Matters Act cap.59 and to order,

Convening an extraordinary meeting of the Company for the purposes of considering and if thought fit passing certain resolutions. There was a prayer to give directions as to the manner in which the meeting is to be called, held and conducted. There was also a prayer for consequential direction as the Court may consider expedient.

Fidelity Union Merchant Bank Ltd. the 2nd respondent to this application was respondent to that application. It did not oppose the application which was accordingly granted. On 13th September, 1991, Appellant was not aware of this application.

On being aware of the Order of Jinadu J, Chief Onwuka Kalu applied on the 8th October, 1991 to the Court of Appeal relying on section 222(a) of the Constitution 1979 seeking leave of the Court of Appeal to appeal against the Order, as a person having interest in the matter of Suit No. FHC/L/M104/91, Chief Victor Odili v. Fidelity Union Merchant Bank Ltd. The application sought the following reliefs-

(a) Leave to appeal as a person interested against the orders and directions of the Federal High Court dated 13.9.91 and the further order dated 19.9.91.

(b) Stay of the “execution of or compliance with” the afore-mentioned orders and directions.

(c) Direction that no steps or further steps shall be taken to hold the meeting convened for 14.10.91 until the determination of the proposed appeal.

On the 15/10/91, Appellant filed another motion in the Court of Appeal seeking leave of the Court to amend the reliefs asked or in (b) and (c); and to substitute therefore eight additional prayers. As these additional prayers are not intrinsically relevant to the determination of this appeal or the decision of the Court below. I have not reproduce them.

On the 28th October, 1991, Respondents filed notice of preliminary objection to the application seeking to strike it out. The grounds relied upon was that the application was being made in the first instance to the Court of Appeal and in contravention of the requirement of Order 3 rule 3(4) of the Court of Appeal Rules 1981, It was further alleged that the application was being made in the absence of special circumstances which made it impossible or impracticable to make his application first to the Federal High Court.

In a considered ruling delivered on the 12th December, 1991 the Court of Appeal upheld the preliminary objection. In the ruling of the Court it observed that

”The single issue that calls for determination in this preliminary objection is whether the Applicant’s application dated 8th October, 1991 is competent or by reason of the provisions of Order 3 Rule 3(4) of the Rules of this Court the said application has been made in contravention of the said sub-rule and therefore incompetent”.

The Court below considered the provisions of Order 3 Rule 3(4) the B interpretation of which was in issue. In rejecting the submission of Mr. Oshilaja for the Applicant, the Court held;

“It seems quite clear that the sub-rule is stipulated in mandatory terms that in every application under the Rules of this Court the applicant is enjoined to make his application first to the Court below.”

See also  D. A. Olubode V. Mrs. Comfort Waleola Oyesina & Ors (1977) LLJR-SC

Continuing, the learned Justice of the Court of Appeal said;

“In my judgment, the wordings of the sub-section make it obligatory for an applicant to apply first – to the Court below. The reason is that both the lower Court and this Court have concurrent or coordinate jurisdiction in all such applications made under sub-rule 3(4). Secondly, the appellate Court will be afforded the opportunity of scrutinizing the reason for declining to grant the stay.”

The Court relied on Otto v. Lindford (1881) 18Ch. D. 394, Shodeinde v. The Registered Trustees of the Ahmadiyya Movement in-Islam (1980) 1-2 S.C. 163 and Ojora v. Odunsi (1964) NMLR 12; but rejected Erinforde Properties v. Cheshire County Council (1974) Ch. 261 as unhelpful.

Construing the provisions of Order 3 r. 3(4) it was observed that

“………………..an applicant can apply directly to this Court (i.e. the Court of Appeal) Where there are special circumstances which make it impossible or impracticable to apply to the Court below clearly the burden of establishing such special circumstances lies squarely on the applicant”.

The Court observed that a careful perusal of all the paragraphs of the affidavit in support of the application did not disclose that any attempt was made by the Applicant to address the pre-conditions for leave of the issue of impossibility or impracticability to make the application to the Court below. Accordingly the averments in the supporting affidavit did not disclose any special circumstances why application was not first made to the Court below in compliance with Order 3 r. 3(4).

The Court of Appeal referred to section 222(a) of the Constitution 1979 relied upon by the Applicant, and quoting the section, said that the section should be read together with section 222(b). His Lordship reproduced the section and observed as follows-

“This is a provision in a vicious circle because its import is that the exercise of right of appeal is at the end of the day subject to the operation of Order 3 rule 3(4), an act of the National Assembly. Ironically the beneficent provisions of section 222(a) are drastically curtailed by section 222(b).”

Finally, the Court of Appeal upheld the preliminary objection and struck out the appellant’s application. Applicant has now appealed to this Court. First, appellant filed and relied on two grounds of appeal in his notice of appeal dated 23/12/91. Subsequently, in an amended notice of appeal dated 6th April. 1992 filed with leave of this Court, appellant relied on the following three grounds-

I. Error of Low

The learned Justices of the Court of Appeal, misconstrued or misinterpreted or and misapplied the provisions of Section 222

(a) of the Constitution of the Federal Republic of Nigeria, 1979. Particulars of mis-construction or mis-interpretation or and mis-application

(a) By holding that the liberty or option of the Appellant guaranteed under Section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979 to seek leave of either the High Court or the Court of Appeal to exercise his right of appeal as person having an interest in the matter is subordinated to the provisions of Order 3 Rule 3(4) Court of Appeal (Amendment) Rules 1984 by the provisions of Section 222(b) of 1979 Constitution.

(b) By failing to recognise that the words or litera scripta of the Constitution of the Federal Republic of Nigeria 1979 being a part of the law itself mean what it says and that in view of the provisions of Section 1(1) of the said Constitution it is the provisions of Order 3 Rule 3(4) Court of Appeal (Amendment Rules, 1984 made pursuant to Section 227 of the said Constitution as a delegated legislation that ought to accord, conform, reconcile and be consistent with the terms of section 222(a) of the Constitution aforesaid and not vice versa.

(c) By making a wrong determination on the interpretation or application of the 1979 Constitution with regard to the option of the Appellant to apply either to the High Court or Court of Appeal to seek leave to appeal as person having an interest in the matter in order to be able subsequently with the leave sought exercise his right to appeal against the decision in the matter.

  1. Error of Low

The learned Justices of the Court of Appeal erred in law when they gave a wrong decision on a question as to the interpretation or application of constitutional law.

Particulars of Error in Law

(a) By holding that Order3 Rule 3(4) Court of Appeal (Amendment) Rules 1984 is “an Act of the National Assembly”

(b) By holding that the exercise of seeking leave of the High Court or Court of Appeal under Section 222(a) of the 1979 Constitution is at the end of the day SUBJECT to the operation of Order 3 Rule 3(4), an Act of the National Assembly.

(c) By holding that section 222(b) of the 1979 Constitution justifies the learned Justices of the Court of Appeal in holding that Order 3 Rule 3(4) Court of Appeal Rules 1984 nullified the actual terms, words, provisions, intent or purpose or and effect of section 222(a) of 1979 Constitution. (d) By considering and applying the cases of:

(i) Otto v. Lindford (1881) 18 Ch. D 394;

(ii) Shodeinde v. The Registered Trustees of the Ahmadiya Movement in Islam (1980) N.S.C.C. 70;

(iii) Ojora v. Odunsi (1964) N.S.C.C. 34, in holding that Appellant’s application for leave to appeal should pursuant to Order 3 Rule 3(4) aforesaid have been brought/made in the first instance in the Federal High Court, Lagos when there was no coincidence of legally material facts and the Judicial authorities relied upon were distinguishable and not in point or applicable to the special factual circumstances and proceedings under the 1979 Constitution as in the appellant’s application for leave brought under Section 222(a) of 1979 Constitution and none of those cases was decided in the con of Section 222(a) of the 1979 Constitution of the Federation.

(e) The decision of the Court of Appeal in this case renders the provisions of Section 222(a) of the 1979 Constitution empty letters and a futility and enables the learned Justices of the Court of Appeal to deny the Appellant his unconditional access to either the High Court or Court of Appeal guaranteed by the Constitution and thereby perpetrate or and perpetuate a miscarriage of justice.

(f) The result of the legal effect of the decision under appeal herein produce a futility with regard to the option quaranteed and, assured to the Appellant and enshrined in section 222(a) of the 1979 Constitution of the Federation.

  1. Error of Law

The learned Justices of the Court of Appeal erred in law when they failed to NULLIFY the purported preliminary objection on the ground of incompetence.

Particulars of Error in law

(a) By the nature of the action/proceeding there is a feature an inherent defect, a lack of legal merit, in the purported preliminary objection which prevents the Court of Appeal from exercising its jurisdiction.

(b) There was both defacto and dejure no Notice of Preliminary objection dated and filed on 28/1 0191 on behalf of FIDELITY UNION MERCHANT BANK LIMITED against the Appellant’s Motion for Leave of the Court of Appeal to exercise his right of appeal.

(c) What in fact was placed before the Court of Appeal was a Notice of Preliminary objection to the hearing of Motion filed on behalf of 3rd, 4th and 5th Respondents (Chief N.O. Nwojo, Chief J. Iro Orji, and Mr. Kalu Agwu Maduka).”

Learned Counsel filed and served their briefs of argument. Appellant also filed and served a reply brief. In argument both counsel adopted their briefs of argument and relied on them for expatiation of obscure points and emphasis on particular issues.

I have reproduced the three grounds of appeal relied upon by appellant in this appeal. It is interesting to observe that learned Counsel to the appellant formulated seven issues for determination from the three grounds. It is clear from the grounds of appeal that grounds 1 and 2 are concerned with the construction of section 222(a) & (b) of the Constitution 1979. Ground 3 dealt with the validity of the ruling on the preliminary objection allegedly made without jurisdiction. Strictly speaking these are the only issues which arise for determination. I shall however. in the interest of completeness reproduce all the issues formulated.

ISSUES FOR DETERMINATION

The issues arising for determination in this Appeal are as follows-

(a) Whether or not the Court of Appeal (Amendment) Rules, 1984 is an Act of the National Assembly.

(b) Whether or not the provisions of Section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979 GIVES the Appellant as a PERSON HAVING AN INTEREST IN THE MATTER any option or liberty to seek LEAVE OF EITHER the High Court or Court of Appeal to exercise his RIGHT OF APPEAL as person interested conferred by the Constitution.

(c) Whether or not the exercise of seeking leave of the High Calm or Court of Appeal by the Appellant as PERSON HA VING INTEREST IN THE MATTER under Section 222(0) of the Constitution of the Federal Republic of Nigeria, 1979 is, by itself and without more, a RIGHT OF APPEAL under or in the con of Section 222 of the 1979 Constitution of Federal Republic of Nigeria.

(d) Whether or not there is ANYWHERE OR WHEREVER under the Court of Appeal (Amendment) Rules, 1984 where the Appellant as “PERSON HAVING AN INTEREST IN THE MATTER” under Section 222(a) of the Constitution is “DIRECTED” to apply or give notice of his application for LEAVE to appeal either to the Court below (High Court) or the Court of Appeal.

(e) Whether or not Order 3 Rule 3(4) of the Court of Appeal (Amendment) Rules 1984 is applicable to the facts and circumstances of the Appellant’s case or is consistent therewith in the con of Section 222(a) of the Constitution of the Federal Republic of Nigeria, 1979.

(I) Whether or not the Preliminary Objection dated and filed at the Court of Appeal, Lagos on 28/10/91 on behalf of FIDELITY UNION MERCHANT BANK LIMITED was, in terms, against the Appellants Motion/Application seeking leave of the Court of Appeal under Section 222(a) of the 1979 Constitution of Nigeria.

(g) Whether or not there is a feature, an inherent defect, or a lack of legal merit in the Preliminary Objection dated and filed at the Court of Appeal, Lagos on 28/10/91 on behalf of FIDELITY UNION MERCHANT BANK LIMITED which prevents the Court of Appeal from according competence to the Preliminary Objection of land validly exercising its jurisdiction thereon”.

Learned Counsel to the Respondent has formulated only two issues for determination. These are founded, first on the question of the construction of section 222(a) of the Constitution 1979; the second is an entirely new issue arising from the fact of the refusal of leave itself. The issues formulated by Respondent are as follows:-

“(i) Whether a person who claims to have an interest in the subject-matter of civil proceedings before the Federal High Court is entitled to apply directly to the Court of Appeal for leave to appeal under section 222(a) of the 1979 Constitution without having applied in the first instance to the Federal High Court for such leave.

(ii) Whether the Supreme Court has jurisdiction to entertain an appeal from a decision of the Court of Appeal declining (for whatever reason) to grant leave to appeal from a decision of the Federal High Court”.

It seems to me that both formulations of issues for determination are defective and inadequate. Whereas learned counsel to the appellant has erred on the side of prolixity and irrelevance; respondent’s counsel has omitted to consider ground 3 of the grounds of appeal which if successful would terminate the appeal in limine. A comprehensive formulation of the issues would require adopting the first issue formulated by the respondent, and adding to it the issues formulated by the appellant. The issues should be reformulated as follows – (a) and (e), (b, (c) and (d), and (1) and (g), could be reduced into one formulation. The prolixity of the issues will then be reduced into a more concise, manageable and tidier number of issues.

The issues for determination in this appeal, therefore are as follows-

  1. Whether or not the Court of Appeal (Amendment) Rules, 1984 is an Act of the National Assembly and if it is whether or not Order 3 Rule 3(4) of the Court of Appeal (Amendment) Rules 1984 is applicable to the facts and circumstances of the Appellant’s case or is consistent therewith in the con of section 222(a) of the Constitution 1979.
  2. Whether a person who claims to have an interest in the subject matter of civil proceedings before the Federal High Court is entitled to apply directly to the Court of Appeal for leave to appeal under section 222(a) of the 1979 Constitution without having applied in the first instance to the Federal High Court for such leave.
  3. Whether or not there is a feature, an inherent defect, or a lack of legal merit in the preliminary objection dated and filed at the Court of Appeal, Lagos on 28/10/91 on behalf of Fidelity Union Merchant Bank Limited which prevents the Court of Appeal from according competence to the preliminary objection or and validly exercising its jurisdiction thereon.
  4. Whether the Supreme Court has jurisdiction to entertain an appeal from a decision of the Court of Appeal declining (for whatever reason) to grant leave to appeal from a decision of the Federal High Court.

I think the above four issues have taken into account adequately all the grounds of appeal relied upon, in the hearing of this appeal. I adopt them for the purposes of this judgment.

Although the issue 4 herein raised does not arise from the grounds of appeal filed, it is both a crucial and fundamental point of law, which if successful will determine the appeal in limine. Similarly, issue 3, arising from the grounds of appeal, contains an allegation of incompetence, if successful, will also determine the appeal in limine. I therefore propose to consider these two issues first in that order. I shall thereafter discuss the other issues.

I have reproduced issue 3 above.

Mr. Oshilaja arguing this issue has referred to his brief of argument. He pointed out that the preliminary objection dated and filed on 28/10/91 on behalf of Fidelity Union Merchant Bank Ltd. was ex facie intended as an objection to the hearing of a Motion filed on behalf of 3rd, 4th and 5th respondents, (namely Chief N.O. Nwojo, Chief J. Iro Orji and Mr. Kalu Agwu Maduka) and not against the motion/application of the appellant seeking leave of Court of Appeal to appeal. The preliminary objection is accordingly incompetent and should have been struck out on that ground in so far as it purports to be an objection against appellant’s motion.

Learned counsel citing Madukolu v. Nkemdilim (1962) 1 All NLR. 584, (1962) 2 SCNLR 341, pointed out that since the decision of the Court of Appeal striking out the application was based on a non-existent preliminary objection the ruling delivered at the end of the proceeding was a nullity.

Chief Williams, S.A.N. did not advert to this issue in his respondent’s brief of argument. He replied orally to appellant’s submission. He conceded that there was error on the face of the application, with respect to the description of the parties to the preliminary objection. Chief Williams admitted that it was a regrettable oversight which has not misled any of the parties concerned. He pointed out that all concerned, namely, learned counsel to the appellant against whose application the objection was raised, the Court and the 2nd respondent were quite aware of the fact that the preliminary objection was against appellant’s application. The Court was not in its ruling mistaken about whose application it had before it. Hence, the ruling striking out the application on the grounds alleged. No miscarriage of justice was occasioned thereby. Learned counsel pointed out that appellant who was the applicant in the Court below should have pointed out the error if he was embarrassed by it.

This is an interesting and unusual situation. It is a matter of surprise that none of the parties in the application and the Court noticed that the title of the preliminary objection did not refer to the application to which objection was being raised. Applicant in the Court below, who is the present appellant, and who is now relying on the defect, should have promptly raised this same point in challenging the preliminary objection. It seems to me, as I have already observed, that all concerned with the preliminary objection before the Court took it for granted that it was against the application of appellant for leave to appeal against the order of Jinadu J in FHC/L/M104/91, Odili v. Fidelity Union Merchant Bank Ltd. of the 13th September, 1991. It is pertinent to observe that the motion subject matter of the preliminary objection was filed by Chief Onwuka Kalu on the 8th October, 1991. The respondents to that motion were Chief N.O. Nwojo, Chief J. Orji and Mrs Kalu Agwu Maduka. The order of Jinadu J. in FHC/L/Ml04/91 was made in their favour. The preliminary objection dated 28th October, 1991 was by Fidelity Union Merchant Bank Ltd.

It seems to me that all the parties understood the position. What then is the effect of the wrong title of the preliminary objection to the ruling of the Court The observation of Mr. Oshilaja amounts to the contention that the motion in respect of which preliminary objection was argued did not exist. His submission is that the objection argued did not refer to the party whose application was being objected. Chief Williams, S.A.N. could not do more than accept the fact that there was no doubt a mis-description ex facie on the application. He however, did not concede that the preliminary objection was against a non existent application.

On my reconstruction of the facts in this appeal, it is difficult to disagree that the issue between the parties lies on the mis-description of the parties which has resulted in a non description. This is not an inherent defect ex facie the preliminary objection which precludes the Court below from exercising its jurisdiction to hear the objection. The issue of mis-description is not necessarily fatal, See Oladeinde & anor. v. Oduwole (962) WNLR 41. An action cannot be defeated on the grounds of non-joinder or misjoinder. This is even not such a case. It is well settled law, and the practice in all our Courts that where an action has not been properly constituted, whether as regards joinder of the causes of action or as to parties, it has always been procedurally beneficial and prudent to raise objection to the defect in the action before or at the hearing of the action. – See Martins v. Federal Administrator General (1962) 1 All NLR 120, (1962) 1 SCNLR 209. Where the error in stating the names of the parties results in a misnomer, an amendment would be granted the party in error, on payment of costs to the other party. Order XXXIII, of the Federal High Court Rules 1976 enables the party to bring an application to correct such errors. The view of the Court is that non-compliance with any rules of Court, or with any rule of practice for the time being in force does not generally render the proceedings void – See Ezera v. Ndukwe (1961) 1 All NLR 564.

In Jebba v. Owonifari (1974) 10 S.C. 157, the name of the original defendant was shown on the writ as “Chief Oniran of Irin” which was a mis-description. The Supreme Court held that this was a misnomer, which could be amended even in the Supreme Court to reflect the real name of the defendant.

It is of crucial importance to the determination of this point whether the appellant has been in any manner misled by the error complained of. It is not the argument of Mr. Oshilaja that he was misled. The preliminary objection was argued on the basis that it was against the application of Onwuka Kalu for leave to appeal against the ruling of the Federal High Court in Suit No. FHC/L/M104/91 as a person interested.

Hence the argument before the Court was centred on compliance with Order 3 rule 3(4) of the Court of Appeal (Amdt.) Rules 1984. The Court below relied for its ruling on these arguments. It seems to me strange for Mr. Oshilaja to contend that the ruling was a nullity because it was made in respect of a non-existent motion.

This Court has declared emphatically in several of its decisions that where the error relied upon by a party to set aside a proceeding is clearly excusable, and is shown not to have misled the party complaining about the error, and it is clear that no injustice has been occasioned thereby the Court will in the interest of justice not act to the prejudice of the party in error. This Court is wholly concerned and interested in the doing of justice between the parties before it.

In Divisional Chief Gbogbololu of Vakpo Afeyi v. Head Chief Hodo (1941) 7 W.A.C.A. 164 at p. 165, the West African Court of Appeal declared;

“It is the duty of Courts to aim at doing substantial justice between the parties and not let that aim be turned aside by technicalities…………….

It seems to me unarguable that appellant was not misled by the mis-description in the notice of motion of preliminary objection. Having opposed the motion for preliminary objection. It will be unreasonable for appellant to contend that he was objecting to a non-existent motion. If appellant had raised this point and made his observation in the Court below, the Court could have exercised the powers vested in it by section 16 of the Court of Appeal Act 1976. It is the duty of the Court of Appeal to invoke the powers under Order XXXII Federal High Court (Civil Procedure) Rules, 1976. Under Order XXXII, the Court may at any stage of the proceedings suo motu or on the application of either party to the proceedings order amendment of a defect or error.

In the instant case, the conduct of the appellant amounts to a waiver of the irregularity. Since no hardship appears to have accrued to the appellant, and will not embarrass the parties or cause delay (see Bobo v. Anthony (1931) 1 W.A.C.A 169), this Court will in the exercise of its powers under section 22 of the Supreme Court Act, make the necessary amendment to the notice of preliminary objection. The amendment does not introduce any new element to the application before the Court, and has not in any way altered the character of the preliminary objection. See Foko & Ors v. Foko & Ors. (1968) NMLR 441. We will not amend where it will confer a right of action where none-hitherto existed – See J.I.G. Onyia v. Governor-in-Council (1962) 2 All NLR. 174. All the amendment has done is to correct a genuine mistake – See Shokunbi v. Mosaku (1969) NMLR. 54. The amendment will not be granted if it will cause injustice to either of the parties-See Oduwaiye v. Oresanya (1968) NMLR 430. The amendment in the instant appeal is material, will cure the defect and ought to be granted- See Abasi v. Labiyi (1958) WRNLR.12.

I shall therefore in exercise of powers under section 22 of the Supreme Court Act amend the title of the preliminary objection dated 28th October, 1991, by striking out the word “Applicants” and substituting for the word “Applicant” in line 2 thereof and striking out the names in parenthesis, namely Chief N.O. Nwojo, Chief J.O. IroOji, and Mrs. Kalu Agwu Maduka and substituting therefore the name Chief Onwuka Kalu.

I now turn to the fourth issue. This issue raises the question of the competence of this Court to entertain an appeal from a decision from the Court of Appeal declining (for whatever reason) to grant leave to appeal from a decision of the Federal High Court.

Chief Williams S.A.N. who raised the issue has put his arguments in support of this novel proposition, very lucidly, and concisely. His submission before us, as was in his respondent’s brief of argument, is that the grant or refusal of leave to appeal is not a decision in the con of section 221 of the Constitution 1979. Learned counsel referred to section 277 of the Constitution where the word “decision” has been deemed. He submitted that it did not “embrace” the grant or refusal of an application for leave to appeal. His contention was that if such decision was subject to appeal the whole object of providing for the Court of Appeal or the High Court to grant leave to appeal would be defeated. Chief Williams relied on the English decisions of Ex parte Stevenson (1892) 1 QB. 609 and the dictum of Lord Esher, and Fry LJ at pp. 611 and 612 and Bland v. Chief Benefit Officer (1983) 1 WLR. 262, Sir John Donaldosn M.R. as his authority for the proposition.

Mr. Oshilaja learned counsel to the appellant answered this argument in his reply brief. It was submitted relying on Section 277 of the Constitution that the refusal of leave to appeal under section 222(a) is a “decision” within section 277 of the Constitution 1979. Referring to and relying on the judgment of this Court in Nafiu Rabiu v. State (1980) 11-12 S.C. 130; (1981) 2 NCLR 293 learned counsel submitted a “decision” in the section “means any determination of that Court and includes …. ” It was submitted that the intention is to widen the scope of the concept covered by the term “decision” to cover all forms of conclusion involving decision making. It was submitted that this ruling of the Court of Appeal dated 12/12/91 is a judgment or a judicial determination or decision of that Court. It is appealable by virtue of section 213(a) or (b) of the Constitution 1979.

It was submitted that for the purposes of this application, section 220(a) of the Constitution rather section 221 relied upon by the respondent is the applicable provision. Learned counsel submitted that the application has complied with the essential ingredients of the exercise of jurisdiction prescribed in Madukolu & Ors v. Nkemdilim & Ors (1962) 1 All NLR 587; (1962) 2 SCNLR 341. He referred to Ex parte Stevenson & Ors. (1892) 1 QB. 609, and Bland v. Chief Supplementary Benefit Officer (1983) 1 All E.R. 537, relied upon by Chief Williams, as distinguishable and inapplicable. Learned counsel submitted that whereas the former was a decision from an appeal from an arbitral award, and was based on the E provisions of Part 1, Schedule 11, Clause 26(a) Housing of the Working Classes Act, 1890, of England, the latter was an appeal from the decision of a Social Security Commissioner under section 14(2)(a) of the Social Security Act, 1980 of England.

It is common ground in this case, as in all cases of the exercise of the right of appeal, the creation of the right is statutory. In the instant case, the exercise of the right of appeal is a provision of the Constitution of 1979. The contention of Chief Williams, SAN, is that the ruling of the Court of Appeal on the issue of the exercise of the right to appeal under section 222(a) of the Constitution is not appealable because such ruling is not a decision as defined in S.277 of the Constitution in the con of sections 220 and 221 of the 1979 Constitution.

To understand and appreciate the force of this submission a careful construction of the provisions of the 1979 Constitution governing the exercise by the Supreme Court of jurisdiction in the right of appeal, is a sine qua non. These provisions are contained in sections 213(1), (5), (6), 215, 216. The relevant part of section 213 of the Constitution 1979 provides 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 Court of Appeal”

X X X X

(5) Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall be exerciseable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having interest in the matter ”

(6) Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall, subject to section 216 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”

Section 216 of the Constitution 1979 vests in the Chief Justice of Nigeria, subject to the provisions of any Act of the National Assembly the power to make rules regulating the practice and procedure of the Supreme Court.

Section 213(2) of the Constitution prescribes the circumstances where an appeal will lie to the Supreme Court as of right. These are (a) appeals against decisions on grounds of law alone, whether in civil or criminal cases, (b) decisions, appealed against on questions involving interpretation of the Constitution, (c) decisions appealed against alleging violation or violations of Chapter IV of the Constitution (d) decisions appealed against on grounds of sentence of death, (e) Questions of validity of elections to any office under the Constitution or membership of any legislative house or expiration of term of office in the legislative house, or whether a seat in the legislative house has become vacant.

“(3) Subject to the provisions of sub-section (2) an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”

It seems that this sub-section is not applicable to the question raised in the instant appeal. Whether a Court has jurisdiction in a matter before it is unarguably a question of law and therefore falls within section 213(2)(a) of the Constitution 1979. Besides, the grounds of appeal relied upon by appellant in this appeal are all of law; and also fall within the aforementioned section.

Chief Williams main submission which is founded on the argument that the ruling of the Court of Appeal is not a decision within the meaning of section 277 of the Constitution seems to me difficult to appreciate. It is both a fundamental and elementary principle of our law that the Constitution is the basic law of the land.

It is the Supreme law and its provisions have binding force on all authorities, institutions and persons throughout the country – S.I (1). All other laws derive their force and authority from the Constitution.

It is a well established -principle of the construction of statutes, and indeed the Constitution, that where the definition section, therein has defined a particular word or expression, the meaning so given to the word, unless the con otherwise requires, shall be used throughout that statute. See Ejoh v. I.G.P. (1963) 1 All NLR 250, (1962) 2 SCNLR 102

Section 277 of the Constitution 1979 has defined the word “decision” to mean “in relation to a Court, any determination of that Court, and includes judgment, decree, order conviction, sentence or recommendation.” Thus simply stated, the word “decision” means any determination of a Court. The category is enlarged by the use of the word “includes” to cover any determination of a Court in an application before it. The meaning does not include observation or expressions of opinion not related to issues joined by parties in the dispute.

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In Deduwa & ors v. Okorodudu & Ors. (1976) 9-10 S.C. 329 at p. 341, this Court, in considering what is a “decision” said:

“More light is thrown on the meaning of the words “decisions” and “determination” in the case of the The Automatic Telephone & Electric co. Ltd. v. Federal Military Govt. of the Republic of Nigeria (1968) 1 All NLR. 429 where Ademola C.J.N in giving the ruling of the Court, said;

‘We have been referred to the shorter Oxford Dictionary for the meaning of determination. It means “a bringing or coming to an end” or the mental action of coming to a decision,” or “the resolving of a question.” In Oater v. Auty (1919) 2 KB 278 Bray J at page 284 interprets the word “determine” as meaning “Make an end of the matter.” In our own experience in this (Supreme) Court, we send a matter back to the High Court for rehearing and determination; the word “determination” therein meaning ‘ending of the matter”.’

It is not therefore every indication of the Courts intention or state of mind or repetitive observation or remark made by the Court that qualifies as a decision or determination of the Court.”

This was the meaning given to the word decision in S.117 (1) of the Constitution 1963. Section 165 which contains the interpretation section did not define the word “decision”. The issue in this case was whether the indication by the learned trial Judge that he would proceed with the trial of the case after plaintiffs had requested for a transfer of the case and after the withdrawal of their counsel, was a judicial decision or determination within the meaning of S.117(7) of the 1963 Constitution. The Supreme Court held that since there was no application before the learned trial 1udge and there being no issue before the Court for hearing and determination, the indication to continue with the case was not a judicial decision or determination but merely an observation confirming the Court’s intention not to grant an adjournment and to proceed with the trial without delay. This construction was based on the 1963 Constitution. The construction in 1979 Constitution already reproduced in this judgment is not materially different. Hence in the recent case of this Court in Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172, 211. Oputa, J.S.C. defined a decision as “a determination arrived at after a due consideration of the facts as pleaded and proved by credible evidence.” Hence a “decision” is to be distinguished from an observation or expression of opinion not founded on any issue joined between the parties. Accordingly, “a decision” within the meaning of section 277(1) of the Constitution 1979 envisages any determination on an issue joined by the parties before the Court. – See also Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (pt.14) 47. The con of section 222(a) does not otherwise require. The word must therefore be given the meaning in S.277(1).

I shall now refer to the cases relied upon by Chief Williams. Ex parte Stevenson (1892) 1 Q.B. 609 was an appeal from an arbitral tribunal’s award relying on the provisions of Part 1, Schedule 11, Clause 26(a) of the Housing of the Working Classes Act 1890 of England. The section provides that any party dissatisfied with an award of the tribunal under Part I of the Act “may upon obtaining the leave of the High Court, which leave may be granted by such Court or any Judge thereof at Chambers in a summary manner, and upon being satisfied that a failure of justice will take place if the leave is not granted, submit the question of the proper amount of compensation to a jury.”

The claimant was dissatisfied with the amount awarded and applied to Wright J. at chambers for leave to submit the amount of compensation to a jury under the provision. Wright J refused leave. The claimant appealed to the Divisional Court.

A preliminary objection was raised that no appeal lies from the refusal of the Judge in chambers to grant the leave. The contention was that the Judge’s decision was not an order within the meaning of section 50 of the Judicature Act 1873 so as to bring it within the general provision that orders made in chambers are appealable.

In a unanimous judgment upholding the preliminary objection, it was held that the provisions for leave to be obtained under section 26(a) of Schedule 11 of the Act, as a condition precedent to the right of appeal to the jury is the leave of the High Court. It is not expressed as “leave of the High Court or of a Judge thereof, but the “leave of the High Court only.” Lord Coleridge CJ continued at p.397, and said,

“And although such leave may be granted either by the Court itself or by a Judge thereof at Chambers, where it is granted by a Judge at Chambers it is granted by him, not as his own leave, but as the leave of the High Court.”

In stating the reasons for refusing leave to appeal, the learned Chief Justice, said;

“The Judge when sitting at Chambers for the purpose of hearing an application for leave to appeal to a jury, which leave I have already said would when granted be the leave of the High Court, was sitting at the High Court. And it is clear there can be no appeal from the High Court to itself..”

Cave J. agreed. In his own judgment distinguishing applications under the provisions of section 2 of the Bankruptcy Act of 47 & 48 Vict. C.9 he observed that there is no power here to make two concurrent applications.

“For the leave to be obtained here is not, as in the case of that Bankruptcy Statute, the leave of one or the other of two alternative bodies, but the leave of one body only, namely, the High Court”.

His Lordship stating what he considered the true meaning of the section, said;

” … that the true meaning of the section is, that although the application for leave may be made either to the Court or to a Judge, when once the selection of the tribunal has been made, the selection is final, and the parties are to be bounded by the decision of that tribunal whether it grants the leave or refuses it.”

The basis on which leave was refused was that the High Court cannot act as an appeal Court of its own decision. The additional reason was that allowing an appeal will result in the absurdity of the reason for vesting power to grant or refuse leave. The object of the power is to prevent frivolous appeals. Hence the exercise of the power is final. The issue in these cases was not whether the exercise of jurisdiction was based on the decision of the tribunal. They were all concerned with the finality of the decision. The decision was affirmed on appeal to the Court of Appeal, Lord Esher M.R., Fry, Lopes L.JJ. Chief Williams cited and relied on the dicta of Esher, and Fry L.JJ, at (1892) 1 Q.B at pp. 611, 612 and 613 where the rationale for refusing leave to appeal on an order refusing leave is to prevent frivolous and needless appeals. This view was unanimously approved, adopted, and followed in Bland v. Chief Benefit Officer (1983) 1 W.L.R.262.

Now there is a clear distinction both in the nature and status of the enabling laws relied upon by Chief Williams, and the provisions of the Constitution from which the right of appeal in the instant case is derived. There is no doubt that the meaning of “decision” in section 277(1) applies to the provisions’ of section 222(a) of the Constitution 1979. The definition of the word “decision” in section 277(l) applies to the provisions of section 222(a) of the Constitution 1979.

I now consider the alternative submission that the Constitution having committed the question whether or not to grant leave to appeal to a person interested to the decision of the Federal High Court or to the Court of Appeal, the Supreme Court has no jurisdiction to deal with the matter.

It seems to me somewhat difficult to appreciate the logic of this argument. The Supreme Court exercises by virtue of section 213 of the Constitution an entirely appellate jurisdiction subject to the original jurisdiction vested in it by section 212 of the Constitution. It is quite correct that the Constitution has vested the determination of the question whether or not to grant leave to appeal to a “party interested” from a decision of the High Court to that Court, or to the Court of Appeal. But the Constitution did not by that deprive the Supreme Court of the exercise of its appellate jurisdiction in respect of such matters. The Supreme Court still has jurisdiction to the exclusion of any other Court of law under this Constitution to hear and determine appeals from the Court of Appeal. See S.213(1) Constitution 1979. The Federal High Court or the Court of Appeal only exercise jurisdiction to grant leave to appeal to “a person interested” in the decision of the Federal High Court. The right of the Supreme Court to exercise its constitutional judicial jurisdiction cannot be removed by mere implication collected from construction of other provisions. Where the jurisdiction is to be excluded, it must be done expressly and unequivocally. The right of appeal is too fundamental to be removed by mere interpretation. – See Doherty v. Balewa (l961) 1 All NLR 604, (1962) 2 SCNLR 256.

I now turn to the principal contention in the appeal against the ruling of the Court of Appeal. I shall for this purpose consider the two issues together. The kernel of these two issues question the validity of Order 3 rule 3(4) of the Court of Appeal Rules, 1984, and whether by virtue of section 222(a) of the Constitution 1979 a party interested who is not a party to the action can apply directly to the Court of Appeal for leave to appeal against the judgment of the High Court.

The submission of Mr. Oshilaja is that section 222(a) of the Constitution 1979 gives an option to a party interested who is not a party in the Judgment of the High Court to apply to the Court of Appeal for leave to appeal against such judgment. For this submission learned counsel relied on the provisions of section 222(a) of the Constitution 1979 and the decisions of Thanni & Ors v. Adegboyega (1971) NSCC. 359, (l971) NMLR 369 decided under section 117(6)(a) of the 1963 Constitution which is in pari materia with S.222(a). Learned counsel also relied on Otapo v. Sun manu (1986) 1 NWLR (pt.16) 344 as having been decided under S.222(a) of the 1979 Constitution. Learned counsel submitted that the Court of Appeal (Amendment) Rules 1984 is not an Act of the National Assembly and even if it was it could not confer on the party interested, any rights which is inconsistent and in conflict with the provisions of the Constitution. It was submitted that the practice and procedure of the Court of Appeal shall be subjected to the Court of Appeal Act and in accordance with Court of Appeal Rules. Learned counsel argued that the Court of Appeal was in error to have described Order 3 Rule 3(4) of the Court of Appeal Rules as an Act of the National Assembly. It was contended therefore that applicant (as a person interested has therefore not yet acquired the status to be formally admitted as an appellant. Learned counsel relied on Thanni &. Ors v. Adegbayega &. Ors. (l971) NSCC 359, (1971) NMLR 369, Nta &. ors v. Okachi &. ors. (1964) 1 All NLR 36 for this submission. It was therefore submitted that the provisions of Order 3 Rule 3(4) of the Court of Appeal were not applicable.

Learned counsel has construed section 222(a) of the Constitution 1979 to mean that seeking leave of the High Court or the Court of Appeal as a person interested pursuant to section 222(a) of the Constitution is not by itself the exercise of the right of appeal within section 222 of the Constitution. It was argued that a careful reading of sections 222(a) and (b) of the Constitution 1979 shows that they provide for the acquisition and exercise of right of appeal, and this does not include persons interested in the judgment who are not parties to the decision. This is because, it was submitted, the word appellant, does not come within the purview of the section.

Learned counsel submitted that the exercise of seeking leave under section 222(a) of the Constitution is not subject to the operation of Order 3 Rule 3(4) Court of Appeal Rules because the Court of Appeal Rules do not anywhere in its provisions specifically require the person interested to seek leave of the High Court or of the Court of Appeal, to appeal.

Appellants alternative submission is that this Court should regard the factors of the interest of the applicant in the subject matter of this appeal, that he was unaware of the particular action at the Court of first instance, and that he was not named as a party to the action as special circumstances which made it impossible or impracticable to the Court below. It was submitted that the non-compliance with Order 3, Rule 3(4) was not wilful. Counsel urged the Court to waive the noncompliance in the interest of justice. Learned counsel urged the Court to avoid reliance on technicalities in the interest of doing substantial justice.

It was submitted that if non-compliance with the provisions of Order 3 Rule 3(4) of the Court of Appeal Rules is regarded as an irregularity, it should be considered excusable having regard to the option granted to the person interested under the provisions of section 222(a) of the Constitution 1979.

Learned counsel contended that persons interested within section 222(a) of the Constitution 1979 are obliged by section 25 of the Court of Appeal Act to comply with the procedure directed by the Rules of Court within the period prescribed in section 25(2) of the Court of Appea] Act. Appellant complied with Order 3 Rule 3(1)(2) and (7) (a), (b) and (c) applicable to the case.

In his reply, Chief Williams S.A.N., learned counsel to the respondent considered the provisions of sections 222, 221, of the Constitution 1979 and Order 3 Rule 3(2) Court of Appeal Rules. It was submitted that the power to grant leave to appeal from the decision of a High Court is regulated by section 221(1) of the Constitution 1979. Although the procedure to be followed is not laid down in the Constitution, the Constitution contains enabling powers.

Chief Williams relying on the English case of Attorney-General v. Swansea improvements Company (1878) 9 Ch. D. 46 submitted that the jurisdiction conferred by the Constitution on the High Court is concurrent with that conferred on the Court of Appeal. It was submitted that the High Court cannot in the circumstance be described as a Court of co-ordinate jurisdiction. Learned counsel referred to the definitions of the word “co-ordinate” and “concurrent” in Black’s Law Dictionary, and the Oxford English Dictionary. It was that the power of the Court of Appeal to grant leave to appeal is concurrent but not co-ordinate with that of the High Court. Chief Williams pointed out the wisdom of the provision which enables appeal to the Court of Appeal by persons interested in respect of applications for leave refused by the High Court. Learned counsel pointed out the anomaly if the provision were otherwise; that is if an application can be made first to the Court of Appeal. It was submitted that the only construction of section 221(1) of the Constitution 1979 which makes sense is that which supports that an application should first be made to the Federal High Court, and if refused another application to the same effect may be made to the Court of Appeal.

Chief Williams set out, Order 3 sub-rules (2) and (3) of the Court of Appeal Rules, as the applicable rules. He submitted that rather than Order 3 Rules 3(4), it is the former which ought to have been relied upon by the Court of Appeal in their ruling.

I have endeavoured to reproduce the arguments of counsel fairly comprehensively. I think however that the resolution of the issues for determination requires a construction of the relevant provisions of the Constitution and rules of Court.

Section 220 which provides for the exercise of the right of appeal as of right is not applicable to the facts of this case.

Section 221(1) provides for the exercise of the right of appeal with leave of the High Court or of the Court of Appeal.

Section 222 which is applicable provides;

“222. Any right of Appeal to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution –

(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal al the instance of any other person having an interest in the matter……”

(b) shall be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal”

Section 227 of the Constitution 1979 has provided for the making of rules regulating the practice and procedure of the Court of Appeal as follows”

Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal”

On a literal reading of the words of section 222(a) it seems to me natural and inescapable that the exercise of a right of appeal with leave of the Court, shall only be in accordance with the provisions of any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. It is this construction that should be given to the section – see A.G v. Uwaifo (1982) 7 S.C. 84.

The words must be given their ordinary plain meaning and construed without any glosses or interpolations. – See Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 296, Nwokocha v. Governor of Anambra State (1984) 1 SCNLR 634. The word “shall” in this section should be read as directive and not merely permissive. It is mandatory. But I think the conjunction “and” between the phrases “any Act of the National Assembly” “rules of Court for the time being in force;” is intended to be conjunctive. It seems to me to make sense if it is read as, “or”, and therefore disjunctive. This is why it is submitted, the powers of the President of the Court of Appeal to make rules of practice and procedure is made “subject to the provisions of any Act of the National Assembly.” This is because rules of practice and procedure can be made by Act of National Assembly or by the Rules made by the President of the Court.

Section 222(a) of the Constitution provides for two situations requiring the exercise of the right of appeal in civil proceedings. These are

(i) at the instance of a party to the proceedings, and

(ii) at the instance of a person having interest in the matter, but not being a party thereto. – See Ayeni v. Sowemimo (1982) 5 S.C. 60 Ubagu & Ors v. Chief Okachi & Ors. (1964) 1 All NLR 35; (1964) 1 SCNLR 81.

A person having interest in the matter not being a party thereto can only exercise right of appeal with the leave of the High Court or of the Court of Appeal. This leave to appeal is distinct from the leave to be obtained by an appellant relying on grounds of fact or mixed law and facts under section 221 of the Constitution. Section 221 is the general case. The requirement of leave under section 222(a) in respect of a person having an interest in the matter is sui generis. The expression “another person having interest in the matter” was construed by me in In re Ugadu, Christopher Ede (Representing Amaofia Village, Eha-Amufu) v. Ogenyi Nwidenji & Ors. (representing Amagu Village, Nkaliha) (1988) 5 NWLR. (Pt.93) 189. In that case S.213(5) of the Constitution which is in pari materia with section 222(a) of the Constitution in this case was the subject matter for construction. I said at p.199;

“the exercise of the right of appeal under section 213(5) of the 1979 Constitution, the interest contemplated can only be that of those directly and not obliquely affected by the adverse decision. It cannot be a general interest which every person has in seeing that justice is done to a party.”

I still maintain the construction of the phrase I gave in that case. There is no dispute that appellant is a person having interest in the matter. It is also not in dispute that appellant requires the leave of either the High Court or the Court of Appeal for the exercise of the right of appeal. The subject matter of contention is whether appellant is entitled to apply to the Court of Appeal for the requisite leave without first applying to the High Court for leave Appellant contends that the constitutional provision gives him an option as to which Court he should apply. He contends that there is no provision of the Constitution which makes application to the High Court for leave a precondition of the exercise of his right of appeal as a person interested.

I think Mr. Oshilaja has misconceived the legal position of the person interested. He is stricto sensu a person who could have been a party to the action subject matter of his application. He is therefore entitled to all the rights and privileges to the parties to the action. The contention of Mr. Oshilaja that the right of a person interested has not ripened to that of an appellant ignores the definition of the word “Appellant” in Order 1 r.2 Rules of the Court of Appeal where the word is defined to mean

“any person who desires to appeal or appeals from a decision from the Court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf.”

According to this definition a person interested is a person who applies for leave to so appeal, and is therefore an appellant within the meaning of the Rules.

An interesting contention is the argument that Order 3 rule 3(4) on which the Court of Appeal relied is not an Act of the National Assembly, and to the extent to which it purports to derogate from the constitutional rights of appeal conferred on the person having interest in the matter it is void.

I have already discussed in this judgment the provisions of section 227 of the Constitution which vests in the President of the Court of Appeal the power to make rules for regulating the practice and procedure of the Court of Appeal. The rules made by virtue of powers so conferred are laws made by powers derived directly under the Constitution. Although they are made subject to the provisions of any Act of the National Assembly, they have the same force of law as the Constitution itself. Thus the Court of Appeal Rules 1984 are valid and enforceable in so far as they are not inconsistent with the provisions of the Constitution or an Act of the National Assembly. – See Akanbi v. Alao (1989) 3 1.FWLR (pt. 108) 118.

The power to grant leave to appeal from the decision of the High Court is regulated by section 221(1) of the Constitution. The procedure for application for leave is not provided in the Constitution. The procedural provisions in the Court of Appeal Act, 1976; are limited to time for appealing, in section 25. However, section 222(b) of the Constitution provides that the right of appeal to the Court of Appeal shall be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force.

Mr. Oshilaja has submitted that Constitution has provided “the person interested” with a choice whether to seek leave of the High Court or of the Court of Appeal. I do not think the provision of section 222(a) can be so construed. I agree entirely with the submission of Chief Williams that appeal lies from the High Court to the Court of Appeal. It is only reasonable in the absence of any contrary specific provision, for a person seeking leave to appeal to apply to the Court which has given the decision. Further, it seems that both the High Court; and the Court of Appeal have concurrent jurisdiction in such matters. The anomaly that will result from the failure of a first application to the Court of Appeal, clearly demonstrates that the intention of the provision is that application should be made first to the High Court. The rationale is that the person interested will still have the opportunity of exercising his constitutional right of appeal to the Court of Appeal. In the reverse case as Mr. Oshilaja contends, a refusal to grant leave by the Court of Appeal terminates and exhausts the exercise of the right of appeal. This will clearly be preposterous and ought not be attributed to the Constitution. The provisions of a statute, constitutions not excepted, shall not be so construed as to lead to an absurdity – See Minister of Local Government (EN) v. Akpagu (1964) 1 All NLR 208; (1964) 1 SCNLR 352. In fact where a provision is capable of two interpretations the well settled practice is to adopt the construction which will bring about an effective result rather than that which leads to absurdity and futility- See Ifezue v. Mbadugha (1984) 1 SCNLR 427.

Both Chief Williams and Mr. Oshilaja agree for different reasons that the Court of Appeal was wrong to have relied on Order 3 Rule 3(4) in striking out the application of the appellant. Mr. Oshilaja relies on section 25 of the Court of Appeal Act. In his submission Order 3 r. 3(4) is repugnant to the provisions of section 25 of the Court of Appeal Act, and 222(a) of the Constitution. It is therefore ultra vires and void.

I have already pointed out that Order 3 r. 3(4) was made by virtue of powers conferred by S.227 of the Constitution, and made subject to the Act of the National Assembly. Accordingly it is merely complimentary to both the Court of Appeal Act, and the Constitution. It provides for the machinery for enjoying rights created under the Constitution. It fills up a gap created by the Court of Appeal Act. 11 is therefore not repugnant to any of these.

Chief Williams prefers the provisions of Order 3 r.3(2)(3) of the Court of Appeal Rules. He submitted that these rules were overlooked by all concerned.

The provisions he relies on are as follows-

“(2). Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be made by notice or motion which shall be served on the party or parties affected.

(3) Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal”

I do not think there is any substantial difference in the result whether application was made under Order 3 r. 3(4) or on any of the other two provisions referred to by Chief Williams. Whereas Order 3 Rule 3(2) merely speaks of applications for leave by motion, Rule 3(3) specifically refers to bringing applications in the Court of Appeal fifteen days after refusal in the Court below. Order 3 r. 3(3) clearly demonstrates that application has to be made first in the Court below, and it is only after refusal can it be validly made in the Court of Appeal.

But Order 3 r.3(4) is unequivocal and spells it out clearly, that when an application may be made to either the High Court, or the Court of Appeal it shall not be made in the first instance to the Court of Appeal. The rule prescribes circumstances when application could be made in the first instance to the Court of Appeal.

These are when it is either impracticable or impossible to make the application to the High Court.

The gravamen of appellant’s contention is that it was not necessary to apply to the High Court for leave. The question of impracticability or impossibility was not a consideration. Appellant was on this view of the law exercising a non-existent Constitutional option to apply for leave. I am satisfied he misconceived the legal position. – See Bashorun v. Chief of Army Staff (1989) 5 NWLR (Pt.123) 590. The Court of Appeal was therefore right in its ruling of the 12th December, 1991 on the preliminary objection to strike out the application of Onwuka Kalu, for leave to appeal as a person interested in the judgment of the Federal High Court in suit No.FHC/M/L104/91.

From the above analysis of the issues in this appeal, I have come to the conclusion that the Court of Appeal (Amendment) Rules 1984 was made by virtue of powers conferred under S.227 of the Constitution 1979. The legal effect is that once it is shown that the Rules are made under powers conferred by the Constitution, they would have the same force of law as the Constitution itself. Order 3 rule 3(4) of the Court of Appeal (Amendment) Rules 1984 is applicable to the facts and circumstances of appellant’s case.

A person interested in the subject matter of civil proceedings in the High Court is not by virtue of Order 3 rule 3(4) of the Court of Appeal (Amendment) Rules 1984, entitled to apply directly to the Court of Appeal for leave to appeal, without having applied in the first instance to the High Court for such leave.

The defects in the preliminary objection by the Respondent are not matters which are incurable. They are irregularities which do not render the proceedings void. They are not irregularities which cannot prevent the Court of Appeal from the valid exercise of its jurisdiction.

The Supreme Court has jurisdiction to entertain an appeal from a decision of the Court of Appeal declining to grant leave to appeal from a decision of the Federal High Court.

Having determined all the issues against the appellant the appeal of the appellant is accordingly dismissed. Appellants will therefore pay N1,000 as the cost of this action to the respondents.


Other Citation: (1992) LCN/2536(SC)

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