Karimu Mabinuori & Ors Vs Samuel Onti Ogunloye (1970)
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In suit LD/56A/65 appeal was made to the Lagos High Court from a determination of the Registrar of Titles after objection that the applicant before him was not entitled to registration as the free-hold owner of certain premises at Lagos Street, Ebute Metta, and Taylor, C.J. on the 8th of December, 1965, allowed the appeal and ordered registration of the title of the applicant. Against that decision the objectors before the Registrar of Title have appealed to this Court, but the respondent, the original applicant, took a preliminary objection that the appeal was not properly before us and that this Court had no jurisdiction to determine the appeal.
The submission of Mr Awopeju, counsel for the respondent, initially was that by virtue of section 117(4) (c) of the Constitution of the Federation which reads:-
“(4) Subject to the provisions of subsections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Supreme Court with the leave of the High Court or the Supreme Court in the following cases:-
(c) decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court;”,
it was necessary for the appellants to have leave to appeal as the decision of the Registrar of Titles was in his submission to be treated as that of a court, and this had not been granted. When however this Court pointed out to him the provision of section 98(6) of the Registration of Titles Act (Cap. 187 of the Laws of the Federation of Nigeria and Lagos 1958), which reads:-
“98(6) Every person aggrieved by an order of the court may appeal to the Supreme Court within such time and in such manner as may be provided by the law and rules of court for the time being in force relating to appeals to that court in civil cases.”,
Mr. Awopeju did not pursue his original submission, but then submitted that the issue was not determined by section 117(4) (c) of the Constitution of the Federation but by section 117(4)(d), which reads:-
“(4) Subject to the provisions of subsections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Supreme Court with leave of the High Court or the Supreme Court in the following cases:-
(d) such other cases as may be prescribed by any law in force in the territory.”, so that in his submission leave was still required and had not been obtained.
Mr. Augusto for the appellants did not dispute that leave had never been obtained, but submitted that leave was not necessary as there was an appeal as of right by virtue of the provisions of section 117(2)(j) which reads:-
“(2) An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases:-
(j) such other cases as may be prescribed by any law in force in the territory.”, and that this rather than section 117(4)(d) was the applicable provision.
The short constitutional point therefore that has to be determined here is whether the provision of section 98(6) of the Registration of Titles Act gives ipso facto the right of appeal to the Supreme Court or whether whilst the right of appeal is given, leave is still required.
We have no doubt that it would be quite wrong to read into section 98(6) words that are not there. The Act makes specific provision for appeal to the Supreme Court and we think that the words should be given their natural meaning which must be that the appeal is as of right.
To read in a requirement for leave would be to put a possible fetter on the right of appeal and when power is given by the Constitution to make provision by legislation for cases, other than those already provided for in the Constitution, where appeal may be made to the Supreme Court we think that provision so made will be as of right under section 117(2)(j) of the Constitution of the Federation unless the contrary is specifically provided for in the legislation concerned.
We do not consider it necessary, as was submitted to us, for the legislation to state specifically that the appeal shall be as of right, because a provision enabling an appeal to be brought should be read as being “as of right” unless the contrary is stated, as the granting of the right of appeal where it would not otherwise exist implies of itself in our view that it shall be exercised without further fetter unless the legislation states to the contrary.
There was therefore no need to obtain leave to appeal here as it lies as of right, and the preliminary objection is accordingly dismissed with 30 guineas costs to the objectors/appellants.
Other Citation: (1970) LCN/1835(SC)