Gamioba Otugor & Ors Vs Esezi Ii, The Onodjie Of Okpe And Others (1961)

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BRETT, F.J 

We think it necessary to strike this matter out, as not being properly before us. The procedure for referring a question as to the interpretation of a constitution to this Court is now prescribed by Order VI of the Federal Supreme Court Rules, which was not available for guidance when the order was made in this case, but it may be of help if we say something about the stage at which a reference should be made and the form which it should take. In this case the plaintiffs brought an action against the defendants in the High Court of the Western Region, claiming a declaration that a certain Trust Instrument was either invalid or void and an injunction restraining the defendants from implementing the Instrument. The writ of summons submitted four grounds for holding the Instrument invalid or void, stating them in the alternative. Two of the four alleged that the Instrument was made in the exercise or purported exercise of powers ultra vires the Nigeria (Constitution) Order in Council or inconsistent with it; the other two were that the Instrument was invalid as an improperly constituted trust or was void for uncertainty.

It would appear that no pleadings had been ordered when counsel on both sides joined in making an application of which the first two paragraphs read as follows:-

The parties to the above matter hereby agree that the above suit raised question as to the interpretation of the Nigeria (Constitution) Order in Council involving substantial question of law and do hereby request the Court to refer such question to the Federal Supreme Court.

2.The question for determination is as follows:-

Whether the power conferred upon the Minister under section 4 of Western Region Law No. 45 of 1958 (Cap. 24) to appoint trustees in respect of Communal Rights is inconsistent with the provisions of the Nigeria Constitution.

The Judge thereupon made an order in the following terms:

Pursuant to section 108 (1) of the Nigerian Constitution Order in Council 1960 Laws of Nigeria No. 159 of 1960, I John Adejumo Kester, Judge of the High Court of Justice of the Western Region of Nigeria, Warri DO HEREBY ORDER that the under mentioned cause be transferred from the High Court of Justice, Warri Judicial Division, to the Federal Supreme Court, Lagos, for hearing and determination.

This order was one which the High Court had no power to make. Where pro-ceedings are instituted in the High Court of a Region, the authority for refer-ring a constitutional question to this Court is s.108 (2) of the Constitution of the Federation, which is contained in the Second Schedule to the Nigeria (Constitution) Order in Council, 1960. The subsection reads as follows

(2)Where any question as to the interpretation of this Constitution or the constitution of a Region arises in any proceedings in the High court of a territory and the Court is of opinion that the question involves a substantial question of law the court may, and shall if any party to the proceedings so requests, refer the question to the Federal Supreme Court. What may be referred to this Court under the subsection is a question of law as to the interpretation of a constitution, and the subsection confers no power to transfer a case for hearing and determination. This is made clear by the subsection next following, which reads –

(3)Where any question is referred to the Federal Supreme Court in pursuance of this section, the Federal Supreme Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision. We consider, however, that the error in the present case goes beyond the mere making of a wrong order, and that even the reference of the question set out in counsel’s application would have been premature. The requirement that the High Court shall refer a question to this Court if any party to the proceedings so requests only comes into force where the question genuinely arises in the proceedings in the High Court, and where the High Court is of opinion that the question involves a substantial question of law. References should not be made lightly and no application for a consent order can relieve the High Court of responsibility for deciding these matters itself.

As to when a question arises for the purpose of exercising the power of reference, we would adopt the reasoning and the conclusion of the Court of Appeal in England in Weed v. Ward, (1889), 40 Ch. D. 555, where it was held, to cite the headnote, that ‘The power given by the Judicature Act, 1873, s.56, to refer “any question arising in any cause or matter” to an Official or Special Referee applies only to questions which must necessarily be decided in the cause or matter, and not to questions which it may prove unnecessary to decide’. Judge by that test, the question set out in counsel’s application has clearly not arisen yet, since if the High Court were to hold the Trust Instrument invalid as an improperly constituted trust, or void for uncertainty, it would be unnecessary to decide the constitutional question. Cf  Burton v. U.S. 196 U.S. 283, where the Federal Supreme Court of the United States said “The Court will not pass on the constitutionality of a statute unless it is necessary to preserve the rights of the parties.”

There is a further test to be applied in a case such as this one. It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the Court should be satisfied that the plaintiff’s legal rights have been, or are in imminent danger of being, invaded in consequence of the law. We dealt with this point at length in Olawoyin v. Attorney-General Northern Region, (FSC. 290/1960), (1961) All N.L.R. 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large the Court has a duty to form its own judgment as to the plaintiff’s locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also it is not yet clear that the question set out in counsel’s application arises.We shall not attempt a complete definition of what amounts to a substantial question of law, but it must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced. It must also be one which is capable of being formulated with precision, and before a question is referred to this court it should be so formulated as to en-able this Court to deal with all points which fairly arise, and at the same time to confine itself to those points. We would draw attention to what was said about this in Oluwoyin v. Police, (F.S.C. 73/1961), (1961) All N.L.R. 203 and to the course followed in Director of Public Prosecutions v. Chike Obi, (F.S.C. 56/1961), (1961) All N.L.R. 186. Any suggestion that a power conferred by a law is inconsistent with the constitution should specify the provisions of the constitution with which it is suggested that the power is inconsistent, and the question set out in counsel’s application in this case is too general in its terms to enable the High Court to decide whether it is really one of substance, or to enable this Court to give a satisfactory answer.

For these reasons we hold that the defect in the present proceedings goes beyond the making of an inappropriate order, and that even if the order were correct in form there would be no properly made reference before us.

The matters to which we have drawn attention point to the conclusion that except where the question involves the jurisdiction of the court or the competency of the proceedings, the proper time for referring a question as to the interpretation of a constitution to this Court will normally be after the Court below has heard and determined the other issues arising in the proceedings, since it will not be possible before then to say with certainty whether any question as to the interpretation of a constitution arises, or to formulate correctly any question that does arise. Without laying down any invariable rule in the matter, we consider the High Courts should be guided by this as a general principle, and should not make interlocutory references where it can be avoided.

ADEMOLA, C.J.F.:

I concur.

MBANEFO, C.J. (East):

I concur.

UNSWORTH, F.J.:

I concur.

TAYLOR, F.J.:

I concur.

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Other Citation: (1961) LCN/0895(SC)