Olawoyin J. S. Vs Commissioner Of Police (1961)
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The following questions have been referred to this Court by the High Court of the Northern Region in accordance with section 108 of the Constitution of the Federation:-
“(1) Whether the provisions of section 59c of the Northern Region High Court Law in so far as they make the Grand Kadi or the Deputy Grand Kadi or an appointee of the Grand Kadi capable to sit as a member of the Appellate Division of the High Court have not been invalidated by the provisions of Chapter IV of the Third Schedule to the Nigeria (Constitution) Order in Council, 1960.
“(2) Whether the Appellate Division of the High Court is properly and adequately constituted by two Judges of the High Court; or
“(3) Whether the Appellate Division of the High Court is properly and adequately constituted by three Judges of the High Court.”
Section 59c of the Northern Region High Court Law was enacted by the Northern Region High Court (Amendment) Law, 1960, which was assented to in Her Majestys name on the 12th July, 1960, and section 59c was brought into operation on the 30th September, 1960 by N.R.L.N. 88 of 1960. It is not suggested that the section was invalid at the time when it was enacted, and before considering the grounds on which it is submitted that it is invalid now it will be convenient to set out the provisions of the Constitution relating to appeals to the High Court of the Northern Region as they were on the 12th July, 1960, and the legislation passed by the legislature of the Region in accordance with those provisions.
The relevant Constitutional provisions were contained in sections 142A, 142B, 142C, 142D and 148 of the Nigeria (Constitution) Order in Council, 1954, (L.N. 117 of 1954, hereinafter referred to as the 1954 Constitution Order) as amended from time to time, and in particular by the Orders in Council published in Nigeria as Legal Notices 58 of 1958, 59 and 228 of 1959, and 19 of 1960. Sections 142A, 142B and 142c established a High Court of Justice for the Region and provided, inter alia, for the appointment, qualifications, tenure of office and removal of the Judges of the Court.
The Judges of the Court were to be appointed by the Governor: The Chief Justice after consultation with the Chief Justice of the Federation and the other Judges on the recommendation of the Judicial Service Commission of the Region. The qualification required was that the person appointed should be or have been a Judge of a Court of unlimited civil and criminal jurisdiction in some part of Her Majestys dominions, or of a Court hearing appeals from such a Court, or should be qualified to practise in such a Court and have been qualified for not less than ten years. A Judge once appointed was to hold office until he attained the age of sixty-two. He could only be removed for inability to discharge his functions or for misconduct, and then only after an independent inquiry and on the advice of the Judicial Committee of the Privy Council.
Section 142D empowered the Regional legislature to establish Courts of justice for the Region in addition to the High Court. Section 148, as set out in section 58 (1) of the Nigeria (Constitution) (Amendment No. 3) Order in Council, 1959 (L.N. 228 of 1959) dealt with appeals to the High Court of the Region from sub-ordinate Courts of the Region, and, without restricting the power of the appro-priate legislature to grant additional rights of appeal, laid down certain rights as part of the Constitution. Generally speaking, an appeal was to lie either as of right or by leave of the High Court from the decisions of subordinate Courts in all criminal matters, in all except minor civil matters, and in all matters involv-ing the Fundamental Rights contained in the Sixth Schedule to the
Constitution Order, but there were two qualifications to this, one permanent and one transitional. The permanent qualification was contained in the proviso to subsection (1), which laid down that, unless a law in force in the Region so prescribed, an appeal should not lie to the High Court as of right from a decision in civil proceedings on a question relating to “Moslem matters”, if the Regional legislature had provided for an appeal as of right to a Court established for the Region solely for the purpose of determining appeals from such decisions. Questions relating to “Moslem matters” were defined as meaning various questions regarding marriage, family relationship, inheritance and other incidents of personal law where the questions fell to be determined according to Moslem law. The transitional qualification to the rights of appeal conferred by section 148 was contained in subsection (2) of section 58 of L.N. 228 of 1959, which provided that until a date to be fixed by the Governor of the Region, the rights of appeal conferred by section 148 should not apply in relation to the decisions of such subordinate Courts of the Region as the Governor might prescribe.
Among the Courts established for the Northern Region by the legislature of the Region are a number of Native Courts established by warrant under the Native Courts Law, 1956. These exercise varying degrees of original or appellate jurisdiction in civil and criminal matters. There is also a Court known as the Sharia Court of Appeal, established by the Sharia Court of Appeal Law, 1960. The long title of the Law is “A Law to establish a Sharia Court for the hearing of appeals from Native Courts in cases governed by Moslem personal law, and for matters ancillary thereto”, and the Court is one set up for the purposes referred to in the proviso to section 148 (1) of the 1954 Constitution Order to which reference is made above. The members of the Court are a Grand Kadi, a Deputy Grand Kadi and two other Judges, and they are required to be Moslems of not less than thirty-five years of age, and possessed either of recognised academic qualifications in Moslem law, or of at least ten years’ practical experience in administering it.
It is now possible to turn to the subject-matter of this reference. As the Constitution stood in July 1960, subsection (13) of section 142A, inserted with effect from the 13th February, 1960 by L.N. 19 of 1960, read as follows:-
A law enacted by the legislature of the Northern Region may provide that, when the High Court of that Region is exercising jurisdiction on appeals from decisions of a native Court in such cases as may be prescribed by any such law, members of any such Court as is referred to in paragraph (b) of the pro-viso to subsection (1) of section 148 of this Order may sit as additional mem-bers of the High Court.
Among the purposes of the Northern Region High Court (Amendment) Law, 1960 (N.R. No. 14 of 1960) was to exercise the power conferred by this pro-vision of the Constitution, and a new Part IVA was inserted in the principal Law, under the crossheading “Appeals from Native Courts”. It contained four sec-tions, of which the following are material:-
59B. There shall be a division of the High Court which shall be called the Native Courts Appellate Division of the High Court which 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 Grade A and Grade A limited native Courts and Provincial Courts.
59C. (1) A Court of the Native Courts Appellate Division of the High Court shall be constituted of three Judges, two of whom shall be Judges of the High Court and one of whom shall be the Grand Kadi, or the Deputy Grand Kadi or such other Judge of the Sharia Court of Appeal as the Grand Kadi shall appoint.
(2) The member of the Court constituted in accordance with subsection (1) who is considered by a majority of the Judges of such Court to have the greatest knowledge of the law to be administered in a particular appeal shall preside at the hearing of such appeal.
This amendment was brought into operation on the 30th September, 1960, together with a number of other Laws, including the Sharia Court of Appeal Law. Collectively the Laws brought into operation on this date constituted a sub-stantial reorganisation of the jurisdiction and procedure of the Courts of the Region, and the establishment of the new Native Courts Appellate Division of the High Court was part of this reorganisation.
On the 1st October, 1960, the Nigeria (Constitution) Order in Council, 1960 (hereinafter referred to as the 1960 Constitution Order) came into operation, revoking and replacing all previous Constitutional provisions. It contains eighteen sections and five Schedules, of which the Second is the Constitution of the Federation and the Third the Constitution of Northern Nigeria. Chapter IV of the Third Schedule contains provisions relating to the Courts of Northern Nigeria, and except in one respect reproduces the substance of the relevant Constitutional provisions relating to the composition and jurisdiction of the Courts, as they existed immediately before the 1st October, 1960, though it takes account of what has been done by referring to the Sharia Court of Appeal by name. The exception is that the Constitution of Northern Nigeria now contains no provision similar to that formerly contained in section 142A (13) of the 1954 Constitution Order. It is because of this omission that the question has arisen whether section 59c of the Northern Region High Court Law remains valid as it stands.
The following appear to be the relevant Constitutional provisions:-
Other Citation: (1960) LCN/0863(SC)