Oladunni Akerele Vs Jimoh Alapata (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, JSC.

This case originated in the Upper Area Court at Lokoja in the Kwara State. In that court, the plaintiff claimed from the present defendant/appellant and another defendant, jointly and severally, the sum of £932:16/- as money received from the plaintiff by the defendants for the purchase of salt for the plaintiff. The defendants failed to purchase the salt as agreed and also refused to return the said amount to the plaintiff.

At the hearing on 3rd June, 1969, the plaintiff indicated that he did not wish to proceed with the claim against the second defendant, Gabriel Omosebi. The case then proceed against the first defendant, i.e. the present appellant. On 20th August, 1969, the Upper Area Court, after hearing evidence, gave judgment in favour of the plaintiff for the amount claimed.  

An appeal to the Ilorin High Court against the decision of the Upper Area Court was dismissed on 19th February, 1971. Still dissatisfied with the decision, the 1st defendant has appealed to this court.  In order to enable him to appeal to this court, the defendant, pursuant to the provisions of Order VII rule 3 of the Supreme Court Rules, applied, ex parte, for, and indeed, purported to obtain, the leave of the Ilorin High Court (Adesiyun, J.) such leave being required by virtue of the provisions of Section 117 sub-section 4(c) of the Constitution of the Federation.

The section reads – “Subject to the provisions of sub-sections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Supreme Court on 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.”  At the hearing on 22nd May, 1973, Mr. Olanipekun, learned Counsel for the plaintiff/respondent, objected to the hearing of the appeal on the ground that the court which granted the defendant/appellant leave to appeal was not properly constituted. He then explained that the application for leave should have been heard by three Judges and not, as indeed it appeared by only one Judge.

Learned Counsel then referred to the provisions of Sections 62 and 63 of the High Court Law of the Northern States (Cap. 49) in support of his contention. In reply, Mr. Vigo who appeared for the defendant/appellant, indicated that he was not in a position to disagree with the objection of learnd Counsel for the plaintiff/respondent. Mr. Vigo, with commendable candour, further pointed out that the provisions of Section 80 of Cap. 49 clearly draw out the difference in the composition of the High Court when it exercise original jurisdiction and the same court when it exercises appellate jurisdiction as in the case in hand. PAGE| 3 We are also of the view that there is merit in the objection. As we have pointed out earlier, Section 117(4)(c) of the Constitution of the Federation provides that an appeal lies to this court from a decision of the High Court in any civil proceedings in which an appeal has been brought to that High Court from some other court only with the leave of such High Court or of this Court. Order VII rule 3 of the Supreme Court Rules also provides that where an appeal lies only by leave of this Court or of the Court below, any application to the Court for such leave shall be made ex parte by notice of motion. It is further provided in rule 37 of the same Order that whenever an application could be made either to the Court below or to this Court, it shall be made in the first instance to the Court below but, if the Court below refuses the application, the applicant shall be entitled to have the application determined by this Court.

The defendant/appellant, pursuant to the above provisions, duly applied to the Ilorin High Court for leave to appeal against the dismissal of his appeal. The application was heard by Adesiyun, J., alone and was granted. In hearing the application, the learned Judge would appear to have overlooked the provisions of Sections 62 and 63(1) of the High Court Law of the Northern States as amended by Section 69 of the Area Courts Edict of Kwara State (Edict No. 2 of 1967).

The sections, as amended, read – “62. The High Court shall have jurisdiction to hear appeals (other than appeals in respect of matters which are the subject of the jurisdiction of the Sharia Court of Appeal) from Upper Area Court. 63(1). In the exercise of its jurisdiction under Section 62, the High Court shall be constituted of three members two of whom shall be Judges of the High Court and one of whom shall be a Judge of the Sharia Court of Appeal.”  

An application to the High Court of Kwara State for leave to appeal against the decision of that Court in the exercise of its appellate jurisdiction is, without doubt, made to that High Court in its appellate jurisdiction. In dealing with such an application, therefore, the High Court must be duly constituted in the manner provided for in Section 63 of the High Court Law. The court is not properly constituted with only one Judge. Compared with those of Section 63, the provisions of Section 80 of the High Court Law bring out the point we are making more clearly. The section reads – “80. Every proceeding in the High Court in the exercise of its original jurisdiction and all business arising thereout shall, so far as is practicable and convenient and subject to the provisions of any written law, be heard and disposed of by a single Judge, and all proceedings in an action subsequent to the hearing or trial, down to and including the final judgment or order, shall, so far as is practicable and convenient, be taken before the Judge before whom the trial or hearing took place.”

From the above provisions, it seems to us that a single Judge can preside over the proceedings in the High Court in the exercise of its original jurisdiction; in the exercise of its appellate jurisdiction, however, the court must be constituted of three members, two of whom must be Judges of the High Court and the third a Judge of the Sharia Court of Appeal. As the order granting the defendant/appellant leave to appeal was made without jurisdiction, it is null and void.

The consequence of this is that no leave either of the court below or of this court has been obtained before appeal against the decision of the Ilorin High Court given in suit No. KWS/45A/69 on 19th February, 1971. That being the case, the appeal is not properly before this court. Since this is the first time that this objection was taken before us, we were disposed, after hearing the objection, to grant the defendant extension of time within which to apply for leave to appeal and also for leave to appeal against the decision of the High Court.

We thereupon ordered accordingly and reserved our considered ruling on the preliminary objection. After this Mr. Vigo informed us that he had not been properly instructed by his client whom he had not even seen for months. He then asked for leave to withdraw from the appeal. Leave to withdraw was therefore granted. The defendant/appellant was absent throughout the proceedings.

After a meticulous perusal of the record of appeal, we are satisfied that nothing useful could be urged in support of any of the grounds of appeal. The appeal is completely devoid of merit and it is accordingly dismissed with costs assessed at N65. 

Other Citation: (1973) LCN/1698(SC)