National Employers Mutual General Insurance Association v. J.O. Uchay (1973)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

At the beginning of the hearing of this appeal before us at Enugu on 7th March, 1973, Mr A. Obi-Okoye, learned counsel for the respondent raised a preliminary objection, of which he had duly filed notice, that the appeal was not properly before the court and should be struck out or dismissed. The alleged ground of the objection is that “the purported appeal which was against the decision of the High Court (Enugu) in its appellate jurisdiction was entered direct to this court without leave of the said High Court. ”

After ascertaining from the argument of counsel on both sides that the matter would involve an important question of constitutional interpretation, we decided to refer the constitutional issue to the Full Court sitting in Lagos on 28th March, 1973.

Mr Obi-Okoye submitted before the Full Court that the decision of the High Court of Enugu being appealed from was given in the judge’s appellate jurisdiction in an appeal from a magistrate’s court and that, under subsection 117 (4) (c) of the Constitution of the Federation, leave of the High Court of Enugu must be obtained before the appellant can be heard by the Supreme Court; in other words, appeal does not lie as of right in such a case. Subsection 117 (4 ) (c) provides as follows

“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

(a)

(b)

(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 Mr Obi-Okoye’s contention that the appellant must accordingly seek leave either of the High Court of the East-Central State or of the Supreme Court before the appeal could be entertained, and that this is so despite the provision of section 35 of the High Court Law of the East-Central State and, indeed, of the Rivers State and the South-Eastern State, both of which still apply that Law. Now section 35 of the High Court Law provides as follows

“For the purposes of paragraph f) of subsection (2) of section 117 of the Constitution of the Federation, a person aggrieved by a decision of the High Court in a civil appeal in respect of a Regional matter may appeal further to the Supreme Court in the same manner and as if such appeal were from a decision of the High Court in the exercise of its original civil jurisdiction.”

Learned counsel for the respondent argued that this section is inconsistent with subsection 117 (4) (c) of the Constitution and is, therefore, void to the extent of the inconsistency. In support of this submission, learned counsel referred to the following provision of section 1 of the Constitution of the Federation:

“This Constitution shall have the force of Law throughout Nigeria and, if any other law (including the constitution of a State) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

In enacting section 35 of the High Court Law, the former Eastern Nigeria Legislature purported to have acted in exercise of the power granted to it by subsection 117 (2) (f) of the Constitution of the Federation which provides as follows

”An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases