UNIVERSITY OF LAGOS & ANOR v. M. I. AIGORO (SC 32/1984) [1984] 10 (30 November 1984);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 30TH DAY OF NOVEMBER 1984

SC 32/1984

BETWEEN

UNIVERSITY OF LAGOS & ANOR ............................................ APPELLANTS

AND

M. I. AIGORO .......................................................... RESPONDENT

BEFORE: Sowemimo C.J.N. Irikefe, Bello, Obaseki, Karibi-Whyte, Kawu, Oputa; JJ.S.C.

The appellant in this appeal failed to file his briefs of argument within the time prescribed by the Supreme Court Rules 1977 and as a preliminary to his argument in support of his application for extension of time in which to file his brief, counsel for the appellant/applicant took the point that the Practice Directions 1982 is unconstitutional in that the powers of the Chief Justice to make rules and give directions under Section 216 of the Constitution are subject to the provisions of any act of the National Assembly and that by virtue of Section 274 of the Constitution the Supreme Court is deemed to be an Act of the National Assembly. It follows therefore that the Chief Justice has no power to give directions which have the effect of putting a shackle to the exercise of the discretion of the Supreme Court.

HELD:

(1) It is clear that upon a proper perusal of the Practice Directions as a whole one would conclude that they were directed to parties and counsel and not to the court. Their intendment and purport was directed to parties and counsel and not to the court. Their intendment and purport was directed to parties and counsel to be alert to their responsibility to comply with the provisions of the Rules in order to enhance efficient administration of justice with despatch.

(2) Since the Directions were not directed to the court, it cannot be said that they have fettered the exercise of judicial discretion of the court to direct or order that any non-compliance with the Rules may be remedied. I am satisfied that the Directions were not intended and did not purport to put a shackle to the exercise of the discretion of the Court under Section 31 (4) of the Supreme Court Act 1960 or under Order 1, rule 5 of the Rules.

Objection Overruled.

Chief F.R.A. Williams, S.A.N. (with him Mr. T. E. Williams) for the Appellant.

Mr. Kehinde Sofola, S.A.N. (with him Miss Ogundare) for the Respondent.

Cases referred to:

(1) Adesanya v. President of Nigeria (1981) 3 S.C. 112.

(2) Akinyede v. The Appraiser (1971) 1 All N.L.R. 318.

(3) Akiwu Motors v. Dr. Songonuga S.C. 97/1983.

(4) Alagbe v. The Oluwo of Iwo (1978) 1 L.R.N. 55.

(5) Chief Benson v. Agip Oil (1982) 5 S.C. 1.

(6) Bowaje v. Adediwura (1976) 6 S.C. 143.

(7) Doherty v. Doherty (1964) 1 All N.L.R. 299.

(8) Echeazu v. Awka Community Council S.C. 18/1983.

(9) Hume v. Somerton (1890) 25 Q.B.D.

(10) Jenkins v. Bushby (1891) 1 Ch. 484 at 495.

(11) Langton v. Langton (1960) All E.R. 657.

(12) Nafiu Rabiu v. The State (1980) 9-11 S.C. 130.

(13) Nattermann International Ltd. v. Defola Chemists Ltd. S.C. 105 1984.

(14) Odusote v. Odusote (1971) 1 All N.L.R. 219 at 222.

(15) Ojora v. Odunsi (1964) N.M.L.R. 12.

(16) Raji v. Apena Ltd. S.C. 56/1983.

(17) Williams v. Hope Rising (1981) 1-2 S.C. 145.

Statutes referred to:

(1) Constitution of the Federal Republic of Nigeria 1979.

(2) Interpretation Act 1964.

(3) Law (Miscellaneous Provisions) Act.

(4) Procedure Direction (1970) 3 All E.R. 70.

(5) Supreme Court Act 1960.

(6) Supreme Court Rules 1977.

(7) The Practice Directions 1982.

Bello, J.S.C. We delivered our rulings in this matter on 11th September, 1984. The full Court unanimously upheld the constitutionality of the Practice Directions issued by the Chief Justice of Nigeria on 26th April, 1982. We held that in issuing the Practice Directions the Chief Justice was exercising his powers under section 216 of the Constitution of the Federal Republic of Nigeria 1979 and that the Directions have not fettered the exercise of discretion by this Court to direct or order that any non-compliance with the Supreme Court Rules 1979 may be remedied. We reserved reasons for ruling to be delivered today. I now state my reasons.

I think, having been the pivot around which the issue and its resolution revolved, it is necessary to set out in full the text of the Practice Direction in question. They were published in (1982) 4 S.C. 76-77 which read:

“1. The Supreme Court Rules, 1977, came into force on 1st September, 1977.

2. Because its provisions were new and in order to give both counsel and litigants ample time to familiarise themselves with them, this Court, over the last four years, has been very lenient with both counsel and litigants in the application of its mandatory provisions.

3. It cannot be emphasised, however, that all Rules of Court are statutory and are, therefore, meant to be complied with, notwithstanding the provisions of Order 10 of the 1977 Rules which give the Court the power to direct that any non-compliance with the Rules may be remedied by either the appellant or the respondent as the case may be. Such a remedy, as is well known, may be by way of waiver or by the granting of extension of time within which to comply.

4. After four years of leniency by this Court, we think the time has now arrived for the Court to be more strict in cases of non-compliance with the provisions of the Rules, particularly in civil cases.

5. Accordingly, both appellants and respondents in civil matters are hereby informed that, except in very exceptional circumstances, the Court will no longer direct or order that any non-compliance with the Rules, such as failure to appeal within the time specified therein or to file briefs of argument within the time allowed, may be remedied either by extension of time or by any other means whatsoever.

6. With these Directions, it is hoped that parties and/or their counsel will comply promptly with the provisions of the Rules and thereby make the hearing of cases in this Court possible on the dates for which they are fixed for hearing. As the saying goes, justice delayed is justice denied.”

Chief Williams challenged the constitutionality and legality of the Directions and their application to recent decisions of this Court on applications for extension of time within which to appeal or to take a step in processing appeal for hearing. The gravamen of his contention was that the Directions were ultra vires and unconstitutional and that past decisions of this Court based on the Directions were given per incuriam. Chief Williams launched his attack on two fronts which raised two very important constitutional questions for determination. The first fundamental question for consideration was whether the Chief Justice of Nigeria is vested with the power to give directions on matters relating to the practice and procedure of this Court. The second question was, if the answer to the first question was in the affirmative, whether the Chief Justice exceeded his powers in issuing the particular Practice Directions at issue.

Chief Williams’ contention on the first question was short. After he had referred us to the provisions of section 216 of the Constitution which, according to him, confer on the Chief Justice limited legislative power to make rules for regulating the practice and procedure of the Supreme Court, he contended that the Practice Directions at issue were not made by the Chief Justice in the exercise of his legislative power under the section. He buttressed his contention by relying on the fact that the Directions were never published in the Gazette to accord to them judicial notice under section 29 of the Law (Miscellaneous Provisions) Act. He concluded that the Directions had no legal basis and the Chief Justice had no power to regulate the practice and procedure of the Supreme Court by directions.

In their submissions as learned amici curiae, both Mr. Anyamene and Chief Fawehinmi endorsed the contention of Chief Williams. Referring to Hume v. Sommerton (1890) 25 Q.B.D. 239 at 243 and Langton v. Langton (1960) All E.R. 657, Chief Fawehinmi amplified his submission that in England practice directions have no statutory basis and in the same vein they have neither constitutional nor statutory foundation here in Nigeria. He, however, maintained that absence of publication of a statutory instrument does not affect its validity but only goes to its admissibility in evidence and taking its judicial notice.

In response, Mr. Sofola, of learned Counsel for the Respondent with whom Messrs Molajo and Onomijbo-Okpobo as amici curia agreed, said the Supreme Court has power to issue the Practice Directions which he described as commendable. On his part, Mr. Molajo contended that the Chief Justice is vested with legislative power to issue practice directions which in England are traditionally published in the law reports, that since the Practice Directions at issue were published in our Supreme Court Report they were sufficiently published.

Now, I consider it pertinent to define “practice direction” which may be defined as a direction given by the appropriate authority stating the way and manner a particular rule of court should be complied with, observed or obeyed. In all the common law jurisdictions there has always been an authority vested with the power to issue such directions. Thus the appeal committee of the House of Lords in England issues directions on matters relating to the procedure of the House: see Procedure Direction (1970) 3 All E.R. 70 and (1971) 2 All E.R. 736. Order 34, rule 4 of the Rules of the Supreme Court 1965 of England preserves the inherent powers of the Lord Chief Justice and the Vice-Chancellor as respects actions in the Queen’s Bench Division and the Chancery Division respectively to give directions on the matters specified by the said rule. Again, in the Queen’s Bench Division the Practice Master was empowered by the Supreme Court of Judicature (Consolidation) Act 1925 section 104(2) (now repealed) to issue directions. The Practice Master’s powers have been preserved by Order 33, rule 2 of the Rules of the Supreme Court 1965.

Now coming home, it may be observed that the provisions of our Supreme Court Rules 1977 Order 1, rules 8, 9, 10 (1), 14 and 15 are clear and unambiguous. The rules in clear terms empower the Chief Justice to give directions on the matters stated by the rules which speak for themselves and I may as well set them out:

“8. The Registry of the Court shall, subject to the directions of the Chief Justice, be open to the public on every day in the year from eight o’clock in the forenoon to one o’clock in the afternoon, except:

(a) on Sundays or on any day declared in Lagos as a public holiday by virtue of the Public Holiday Act (Cap. 166); or

(b) on Saturdays when the Registry shall be open to the public from eight o’clock to eleven o’clock in the forenoon.

9. Sessions of the Court shall be convened and constituted and the time, venue and forum for all sessions and for hearing interlocutory applications shall be settled in accordance with directions to be given by the Chief Justice.

10.

(1) The sittings of the Court and the matters to be disposed of at such sittings shall be advertised and notified in such manner as the Chief Justice may direct:

Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been advertised.

14.

(1) Subject to the provisions of this rule, the Seal of the Court and any duplicate thereof shall be kept in the custody of the Chief Registrar, and except as the Chief Justice may otherwise direct shall not be affixed to any writ, rule, order or other process or to any document without the express authority of the Chief Registrar.

(2) If at any time a session of the Court is held outside Lagos, a duplicate of the Seal of the Court may, on the instructions of the Chief Justice, be entrusted to and kept in the custody of a Registrar of the Court for the purpose of that session and may be used for such purposes in accordance with any directions given by the Chief Justice or by the Judge presiding at that session.

15. Except as may be otherwise provided in the Constitution of the Federation, or in any other enactment, the Chief Registrar shall have such jurisdiction, powers and duties as are given him by these Rules or such further powers and duties as the Chief Justice may direct.” (Italics mine).

It may be observed that the Supreme Court Rules 1977 were made by the Supreme Court of Nigeria upon which the Republican Constitution 1963 conferred the power to make rules regulating the practice and procedure of the court. In those circumstances it was expedient for better and efficient administration of justice that the Supreme Court should delegate or empower the Chief Justice as the Court did to issue directions on the matters specified in the aforesaid rules. However, different consideration prevails under the 1979 Constitution which by section 216 confers the power for regulating the practice and procedure of the Supreme Court on the Chief Justice only. I think the provisions of section 216 should be broadly construed within the principle enunciated in Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 and Adesanya v. President of Nigeria (1981) 5 S.C. 112 as conferring on the Chief Justice not only the power to make rules but also the power to issue directions which are incidental to the making of the rules. Section 10 (2) of the Interpretation Act 1964 permits such broad construction. Accordingly, I construe the power to make rules under section 216, which provides:

“216. Subject to the provisions of any Act of the National Assembly or Decree the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.” (Italics added by Decree No. 1/1984).

includes the power to give and issue directions as to the mode of complying with or operating the rules made thereunder. My conclusion on the first question is that the Chief Justice has the power under section 216 of the Constitution to give and issue practice directions.

Before dealing with the second question on the constitutional issue, I consider it necessary to state briefly, as Chief Williams has done though comprehensively in his brief, the law relating to the discretion of this Court to extend time and the practice and attitude of the Court in exercising its discretion.

The power of this Court to extend time within which to appeal or to apply for leave to appeal whether in civil or criminal matters is conferred by statute. Section 31 (2) of the Supreme Court Act 1960 prescribes the time within which a party shall file his notice of appeal or notice of application for leave to appeal. Section 31 (4) however empowers the Court to extend the time thus:

“(4) The Supreme Court may extend the periods prescribed in sub-section (2) except in the case of a conviction involving sentence of death.”

In the case of extension of time within which to take a step in processing an appeal for hearing the Court derives its powers from the Supreme Court Rules 1977. Order 3, rule 4, Order 7, rules 3 (3), 6 (1), 13 (4) and Order 9, rule 3 may be mentioned as some of the rules which prescribe the time within which a particular step shall be taken towards the prosecution of an appeal. However, Order 1, rule 5 provides:

“5. The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.”

Special attention may be given to Order 9 which for the first time in the history of the practice of this Court introduces the filing of briefs of argument by parties in all matters whether civil or criminal in respect of which jurisdiction is conferred upon the Court. Rule 3 thereof prescribes the time within which the parties shall file their respective briefs in the Court and Order 9, rule 7 enacts:

“7. If an appellant fails to file his brief within the time provided for in rule 3 above, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court.”

Since the publication of the Practice Directions in April 1982, Order 9 has been causing serious headache to counsel. To the dismay of learned Counsel and bewilderment of their clients, many appeals were dismissed by this Court for want of prosecution under Order 9, rule 7 simply because by their carelessness, negligence or inadvertence counsel had failed to file briefs within the time prescribed by Order 9, rule 3 and the Court had refused to exercise its discretion under Order 1, rule 5 to extend the time.

I think Chief Williams was quite right when he pointed out in his submission that before the publication of the Practice Directions the attitude of the Court, in exercise of its discretion to applications for extending the time within which to appeal under the Act or within which to take steps in the appeal under the Rules, has been that the Court would readily exercise its discretion to extend the time if it has been shown to its satisfaction that the failure by a party to do an act within the period prescribed was caused by his counsel’s carelessness, negligence, inadvertence or misconception of law: see Ojora v. Odunsi (1964) NMLR 12; Doherty v. Doherty (1964) 1 All N.L.R. 299; Bowaje v. Adediwura (1976) 6 S.C. 143; Akinyede v. The Appraiser (1971) 1 All N.L.R. 162; Ahmadu v. Salawu (1974) 1 All N.L.R. 318 and Alagbe v. The Oluwo of Iwo (1978) 1 L.R.N. 55. In parenthesis, it may be noted that the pre-1977 decisions mentioned herein were based on Order 1, rule 5 of the Supreme Court Rules 1961 which was identical with the present Order 1, rule 5 of the 1977 Rules.

I think, there is substance in the submission of Chief Williams and I am inclined to agree with him, that since the publication of the Practice Directions the Court has or at least some of its Justices have appeared to have construed the Practice Directions to mean that its previous decisions on the principles upon which applications for extension of time were granted prior to the Practice Directions are no longer applicable. Some recent decisions of this Court appear to depart from the decisions mentioned in the foregoing paragraph. The Court has held in numerous cases since the publication of the Practice Directions that counsel’s carelessness, negligence, inadvertence or misconception of the law are not exceptional circumstances or reasons to grant extension of time: see Chief Benson v. Agip Oil (1982) 5 S.C. 1; Echeazu v. Awka Community Council S.C. 18/1893 delivered on 6th March, 1984; Raji v. Apena Ltd. S.C. 56/1983 delivered on 19th March, 1984; Nattermann International Ltd. v. Defola Chemists Ltd. S.C. 105/1984 delivered on 18th June, 1984 and Akiwu Motors v. Dr. Sangonuga S.C. 97/1983 delivered on 2nd July, 1984–none reported. It is apparent from the pronouncements of some Justices in these decisions that they were influenced by the Practice Directions in the exercise of their discretion in the matters.

The foregoing is the base upon which Chief Williams attacked the Practice Directions on the ground that the Directions are ultra vires the powers of the Chief Justice, unconstitutional and void for the reasons which he stated in his brief as follows:

“(a) In so far as it (The Practice Direction No. 5) purports to be a legislation, it goes beyond the regulation of practice and procedure and purports to direct the Justices of the Supreme Court as to the manner in which they should exercise judicial discretion conferred on them by law thereby encroaching on the exercise of judicial powers conferred on the Supreme Court.

(b) The Chief Justice of Nigeria with or without the concurrence of the other members of the Supreme Court acting extra-judicially and not sitting as a court have no power under the law or the Constitution of Nigeria to issue a statement purporting to have the force of law or purporting to overrule, reverse or nullify the effect of the previous decisions of the Court or even of any other court in the land or purporting, in effect, to direct how the present or future members of the Court shall exercise the discretion vested in the Court by law.

(c) Apart from a law enacted by the National Assembly prior to the 31st of December, 1983 or a Decree enacted by the Federal Military Government on or after that date, it is not competent for the Chief Justice of Nigeria acting with the concurrence of the other Justices of the Supreme Court or a majority of them to reverse or overrule or nullify previous decisions of the Court except when they are sitting as a duly constituted court and when that Court or a majority thereof is satisfied that such previous decisions were given per incuriam.

(d) The Supreme Court, being a court of law, is obliged to adjudicate on cases and controversies before it on the basis of pre-determined rules of law. It has no power to determine such cases and controversies on policy grounds or on the basis of expediency. It had previously determined that the law embodied in section 31 (4) of the Supreme Court Act or in Order 1, rule 5 of the Supreme Court Rules gave it a discretion to extend time in certain circumstances. It has no power to determine thereafter that in similar cases it has no discretion to extend time in the very same or similar circumstances, save on the basis that the provisions of the enactment or rule of court under consideration have been altered.” (Bracket mine).

The central theme of Chief Williams’ submission is that the judicial powers, including the interpretative jurisdiction, vested in the Supreme Court by section 6 of the Constitution is only exercisable in cases and controversies which come before the Court and is not exercisable extra judicially. He contended that the Court as the apex of the Judicature in the country ought to ascertain the law in order to provide some degree of certainty upon which persons may rely in the conduct of their affairs; and in such ascertainment of the law the Court is, under the common law doctrine of stare decisis, bound by its own previous decisions.

It is only an Act of the National Assembly enacted before 1984 or a Decree promulgated by the Supreme Military Council thereafter or unless the Court is persuaded in a proper case brought before it that its previous decision was given per incuriam, argued Chief Williams, that can validly enable this Court to change the law and pronounce that what it has consistently declared to be the law is no longer the law.

Chief Williams further argued that the powers of the Chief Justice to make rules and give directions under section 216 of the Constitution are subject to the provisions of any Act of the National Assembly and that by virtue of section 274 of the Constitution the Supreme Court Act 1960 is deemed to be an Act of the National Assembly. It follows therefore that the Chief Justice has no power to give directions which have the effect of overruling, reversing or nullifying previous decisions of this Court decided on the basis of section 31 (4) of the Act.

Relying on Professor Nwabueze’s Presidential Constitution of Nigeria and the same author’s Federalism in Nigeria Under The Presidential Constitution, Chief Williams further contended that the common law rule of stare decisis is deemed to be a law enacted by the National Assembly and consequently the Chief Justice would be acting ultra vires in purporting to make rules or give directions which are inconsistent with the common law rule of stare decisis.

In their submissions, Mr. Sofola for the respondent and Mr. Anyamene and Chief Fawehinmi as amici curia support the contention of Chief Williams that the Chief Justice is incompetent to give a practice direction which fetters the exercise of judicial discretion. Chief Fawehinmi contended that by virtue of section 216 of the Constitution read with section 27 of the Interpretation Act 1964, Order 1, rule 5 is a subsidiary instrument and it cannot be overruled by a practice direction. In his contribution Mr. Anyamene emphasised that since the decision in Odey v. Akam (1940) 6 WACA 63 at 64 substantial justice to the parties has always been the cardinal determinant factor in the exercise of the judicial discretion to extend time.

On the other hand, Messrs. Molajo and Onomijbo-Okpoko took a different turn. The effect of their submissions is that the Practice Direction is a rule of practice within the contemplation of section 216 of the Constitution which the Chief Justice is empowered to make. According to Mr. Molajo the Practice Direction only made stringent the exercise of the discretion of the Court under Order 1, rule 5 by stating the conditions that an applicant must satisfy for the Court to grant him indulgence. He said the Practice Direction did not tie the Court and did not fetter its discretion.

There appears to be consensus among learned Counsel on the general principles of constitutional law upon which Chief Williams rested his submission. I shall reiterate these principles. I entirely agree with the submission that this Court has no power extra judicially to overrule, reverse or nullify its previous decisions whether on questions of substantive law or procedural law. Such decisions can only be annulled by legislation, to wit by the National Assembly before 1984 or by a Decree of the Supreme Military Council thereafter or by the Chief Justice in respect of rules regulating the practice and procedure, and by a judicial decision of the Court given intra judicially when it is satisfied that its previous decision was given per incuriam or would perpetuate injustice: Bucknor-Maclean v. Bucknor (1980) 8-11 S.C.1.

By the combined effect of the definition of “enactment” which “means provision of any law or a subsidiary instrument” under section 277 (1) of the Constitution and section 27 of the Interpretation Act 1964, which provides:

“‘subsidiary instrument’ means any order, rules, regulations, rules of court or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act.”

the Supreme Court Rules 1977 is an enactment while the Practice Directions do not qualify as such. Consequently, a practice direction has no force of law and cannot fetter a rule of court such as Order 1, rule 5 and cannot tie the Court in the exercise of its discretion. Where there is a conflict between a rule of court and a practice direction, the rule must prevail.

Finally, on the issue of the common law doctrine of state decisis, I appreciate that the use of precedent is an indispensable foundation upon which certainty of the law is assured. However, it has long been established since Jenkins v. Bushby (1891) 1 Ch. 484 at 495 per Kay L.J. that the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion. This statement of law was quoted with approval by this Court in Odusote v. Odusote (1971) 1 All N.L.R. 219 at 222, wherein the Court observed that exercise of judicial discretion depends on the facts and circumstances of each case and, in matters of discretion, no one case can be authority for another. Accordingly, I hold that the doctrine of stare decisis cannot strictly be applied to matters of discretion.

It remains to determine whether Practice Direction No. 5, which is the bone of contention, offends the aforestated principles. I think, for such proper determination, all the Directions must be read together. I shall examine them in seriatim. Directions 1 and 2 are simple statements of facts that the Supreme Court Rules came into force on 1st September, 1977 and since then because some of its provisions, particularly those relating to filing of briefs, were new the Court had been lenient in the application of its mandatory provisions. Direction No. 3, which emphasised that Rules of Court must be obeyed, did no more than to re-echo the pronouncement of this Court in Williams v. Hope Rising (1981) 1-2 S.C. 145 at 152. Direction No. 4 announced the demise of the period of leniency and accordingly, by Direction No. 5, parties were informed that except in very exceptional circumstances the Court would no longer remedy any non-compliance with the Rules either by extension of time or by any other means. Direction No. 6 expressed the hope that parties and counsel would promptly comply with the provisions of the Rules.

In my view, it is clear that upon a proper perusal of the Practice Directions as a whole one would conclude that they were directed to parties and counsel and not to the Court. Their intendment and purport was directed to parties and counsel to be alert to their responsibility to comply with the provisions of the Rules in order to enhance efficient administration of justice with despatch. In my opinion the Practice Directions may be said to be the first judicial shot fired by the Chief Justice in the war against indiscipline, now nationally publicised as WAI, in order to compel counsel and litigants to comply with the Rules of Court.

It follows, therefore, that since the Directions were not directed to the Court it cannot be said, as contended by Chief Williams, that they have fettered the exercise of judicial discretion of the Court to direct or order that any non-compliance with the Rules may be remedied.

Furthermore, although I am convinced that since the publication of the Practice Directions the pronouncements of some of us, the Justices of this Court, appear to have over-emphasised the efficacy of the Directions, nevertheless, I am satisfied that the Directions were not intended and did not purport to put a shackle to the exercise of the discretion of the Court under section 31 (4) of the Supreme Court Act 1960 or under Order 1, rule 5 of the Rules.

In conclusion, I am satisfied that the Practice Directions have not offended any of the principles of constitutional law that I have earlier on stated. These are my reasons for over-ruling the objection of Chief Williams in these proceedings.

Sowemimo, C.J.N. I have had the privilege to read, in draft, the reasons for judgment given by my learned brothers Bello, Obaseki, Karibi-Whyte, Kawu and Oputa. I have nothing to add to the reasons set out when the ruling in this matter was delivered.

When this matter came before this Court, the first contention by Chief Williams, S.A.N., was that the Practice Direction does not set out a rule of the court which is to be made by the Chief Justice under section 216 of the Constitution. In our view, the Practice Direction is the same as a rule of court and in exercising his powers, the Chief Justice is entitled to make that Practice Direction.

The second contention was that the Practice Direction inhibits the exercise of discretionary powers by judges. In this respect, our attention was directed to the provision which gives the Court discretion to extend time. It is our view that on a proper consideration of the Practice Direction, it did not inhibit the discretionary powers of the Court. What the Practice Direction draws attention to is the abuse of the rule which sets out specific time for the filing of briefs, and all that it is intended to do is to bring back the principle that a rule of court is not observed in the breach, otherwise there will be no need for making a rule of court for guidance of that principle. There must be some certainty in practice and procedure.

There is no doubt that the Supreme Court of Nigeria is the final court in the land for the adjudication of the rights of individuals or corporations. It is, therefore, the right of any aggrieved person coming before that Court to have his grievances properly argued on the merits. But the adjudication of such rights must be based on the proper arguable grounds put forward in conformity with the rules of court. It is in the observance of that rule that this Court will be competent, in the exercise of its jurisdiction, to determine the rights. After all, it is not the appellant alone that comes before the Court, there is the respondent who sometimes has had his rights determined either in the two lower courts or in the Courts of Appeal and, therefore, is entitled to enjoy the presumption that the decisions of the lower courts are right.

It is ideally suitable that matters which come before the Supreme Court should be determined on their merits. Therefore, the decisions on the merits must be based on the proper adjudication of an appeal on the part of the appellant as well as that of the respondent. If the appeal is dismissed, the respondent does not complain of injustice. The unsuccessful party does, and this is usually the appellant. It is, therefore, essential as I had earlier remarked, that the determination of the merits of a case should not be one-sided.

The reasons given by my learned brothers, whose judgments I have read in draft, are all-embracing and touch on all the contentions raised in argument before this Court.

Irikefe, J.S.C. On 11th September, 1984, we gave our ruling in this matter and adjourned to this date for reasons to be given for the said ruling. I have since been privileged to read the reasons given by my other learned brethren who sat in the case and these adequately reflect mine on the various points argued by counsel before us. I have nothing further to add.

Obaseki, J.S.C. The appellant in this appeal failed to file his briefs of argument within the time prescribed by the Supreme Court Rules 1977 and as a preliminary to his argument in support of his application for extension of time in which to file his brief, learned Counsel for the appellant/applicant took the point that the Practice Directions 1982 published in (1982) 4 Supreme Court Law Reports at pages 76 and 77 thereof is unconstitutional. After hearing the submission of counsel on the objection on the 11th of September, 1984, I dismissed the objection and reserved my reasons for the ruling till today. I will now proceed to give them.

The gravamen of learned Counsel’s objection centres around the alleged restriction the Practice Directions placed on the exercise of the court’s discretion in all applications for extension of time in which to appeal and extension of time for filing briefs of argument. That being so, it is desirable to examine the provisions of the Practice Direction and see whether thee is constitutional authority for their promulgation and whether its provisions are in conflict either expressly or impliedly with any of the provisions of the 1979 Constitution and in particular whether it in any way restricts the exercise of the court’s discretion. It will also be desirable to consider whether any of the provisions is in conflict either expressly or impliedly with the provisions of the Supreme Court Act or the Supreme Court Rules. The basis from which Chief Williams launched his attack are the various previous obiter dicta of this Court in previous interlocutory applications for extension of time which read:

“that the court would readily exercise its discretion to extend the time if it had been shown to its satisfaction that the failure by a party to do an act within the period prescribed was caused by his counsel’s carelessness, negligence, inadvertence or misconception of the law.”

It must be said and appreciated that the court by the obiter dicta did not deprive itself of the discretion it has in each case and I venture to say that it was far from the mind of the court to encourage carelessness, negligence, inadvertence or misconception of the law in the practice of law by enrolled legal practitioners. It does no credit to any counsel for any court to pronounce him guilty or carelessness, negligence or inadvertence. Neither is there any credit in misconstruing simple straightforward rules of court.

These defaults were spotlighted in the hidden lights of the first four paragraphs of the Practice Directions issued on Monday, 26th April, 1982. The Practice Directions (1982) 4 S.C. 76 being challenged contains six paragraphs or sections and I propose to set them out in full hereunder. They read:

“1. The Supreme Court Rules, 1977 came into force on 1st September, 1977.

3. It cannot be over-emphasised, however, that all Rules of Court are statutory, and are, therefore, meant to be complied with, notwithstanding the provisions of Order 10 of the 1977 Rules which give the court the power to direct that any non-compliance with the rules may be remedied by either the appellant or the respondent as the case may be. Such a remedy, as is well known, may be by way of waiver or by the granting of extension of time within which to comply.

4. After four years of leniency by this Court, we think the time has now arrived for the Court to be more strict in cases of non-compliance with the provisions of the Rules, particularly in civil cases.

5. Accordingly, both appellants and respondents in civil matters are hereby informed that, except in very exceptional circumstances, the court will no longer direct or order that any non-compliance with the Rules, such as failure to appeal within the time specified therein or to file briefs of argument within the time allowed, may be remedied either by extension of time or by any other means whatsoever.

6. With these directions, it is hoped that parties and or their counsel will comply promptly with the provisions of the Rules, and thereby make the hearing of cases in this Court possible on the dates for which they are fixed for hearing. As the saying goes, ‘justice delayed is justice denied.’ ”

Those are the Directions which learned Counsel, Chief F.R.A. Williams, S.A.N. contended that the 1979 Constitution as amended by Decree No. 1 of 1984 does not empower the Chief Justice of Nigeria to make. In other words, the Practice Directions are ultra vires the powers of the Chief Justice of Nigeria and therefore null and void.

In view of the impression that gained ground in the minds of a good number of counsel that the Practice Directions were issued without constitutional authority and that they conflict with the expressed provisions of section 6 (6) (b) of the 1979 Constitution, a detailed consideration of the hidden causes for the issue of the Practice Directions will reveal the misconception.

In passing, I must say that the circumstances that necessitated the issue of the Practice Directions 1982 must have given cause for great concern. Ex facie the Practice Direction 1982 is a bold step to give life to the relevant rules of court which were becoming dead letters due to non-observance by many litigants. In particular, mention may be made of Order 9, rule 3 sub-rules (1) and (2). These provisions read:

(1) The appellant shall within eight weeks of the receipt of the record of appeal referred to in Order 7, rule 8 and Order 8, rules 10 and 11 respectively, file in the Court and serve on the respondent a written brief being a succinct statement of his argument in the appeal...

(2) The respondent shall file in the Court and serve on the appellant his own brief within six weeks after service on him of the brief of the appellant.

Chief F.R.A. Williams, S.A.N., learned Counsel to the appellant/applicant, both in his brief and at the oral hearing, submitted that the Practice Directions are ultra vires and unconstitutional and that past decisions based on them were given per incuriam. He contended that the Supreme Court should have followed its previous decisions and should have ignored the Practice Directions. He observed that the Practice Directions dealt with two separate and distinct matters, viz:

(1) Extending time within which to comply with any of the provisions of the Supreme Court Rules pursuant to Order 1, rule 5 of the Supreme Court Rules 1977.

(2) Extending time within which to file a notice of appeal or a notice of application for leave to appeal under section 31(4) of the Supreme Court Act.

Section 31(4) of the Supreme Court Act by its provision which reads:

‘The Supreme Court may extend the periods prescribed in sub-section (2) except in the case of a conviction involving sentence of death.”

does nothing more than confer jurisdiction on the Supreme Court to enlarge the periods prescribed in exercise of its discretion. The method of appealing and of approaching the court for the exercise of its discretion to enlarge the time prescribed by sub-section 2 of section 34 is governed by the Supreme Court Rules; sub-section 1 of section 31 makes this very clear. It reads:

“Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by sub-section (2) of this section that is applicable to the case.”

Sub-section 2 reads:

“The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are—

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

Rules 3 (1) and 4 (2) of Order 7 of the Supreme Court Rules 1977 are complimentary to section 34(4) of the Supreme Court Act. Order 7, rule 3(1) of the rules of the Supreme Court reads:

“Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought.”

Order 7, rule 4(2) of the Supreme Court Rules 1977 reads:

“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

Order 1, rule 5 of the Supreme Court Rules 1977 empowers the Court to exercise its discretion to enlarge the times provided by the Rules for the doing of anything to which the Rules apply or to direct a departure from the Rules in any other way when this is required in the interest of justice. In other words, the Rules regard enlargement of time as a form of departure from the rules.

Learned counsel submitted that section 31(4) of the Supreme Court Act confers on the Court very wide discretionary powers in unlimited terms to grant extension of time. I would say the Supreme Court is conferred absolute power by the said sub-section to enlarge or extend the periods in exercise of its own absolute discretion. The discretion must be judicially exercised however.

The use of the word “may” connotes a surrender of the matter to the discretion of the court. The court does not have to extend time as a matter of course. Learned counsel submitted, quite rightly, in his brief that the burden to be discharged in an application for extension of time to appeal is greater than the burden to be discharged in an application for extension of time to initiate proceedings at first instance and referred to the dictum of Lord Guest in Ratnam v. Cumarasamy (1965) 1 WLR. 8 at p.12 where he said:

“In the one case, the litigant has no trial at all in the other he has had a trial and lost.”

Learned counsel further contended that the courts have always adopted and applied the same guiding principles to all category of applications, where, proceedings having been duly initiated within the prescribed time, extension of time within which to do anything required to be done by the Rules of Court is sought.

Learned counsel relied heavily on both the majority and the minority judgments in Collins v. The Vesty of Waddington (1880) 5 QBD 368 and particularly the judgment of Baggalay, C.J. and Thesiger, L.J. where the learned Lord Justices expressed the view that “applications for extension of time” appointed for the doing of an act or taking any proceeding in an action “from its commencement to judgment” should be freely granted while they expressed the opinion that applications for enlargement of time within which to appeal should be granted with caution. Barnwell, L.J. on the other hand made no distinction and preferred to apply the less stringent standard of indulgence to both category of cases. Learned counsel commended the reasoning of Thesiger, L.J. at pp. 381-382:

“I agree that until a judgment has been arrived at upon the merits, and extension of time may be allowed for rectifying a mistake or oversight. Up to that time both parties may be standing upon an equal footing; the questions between them are still open and it is doubtful which of the opposing contentions is correct; each party has a right to have the dispute determined on the merits, and courts should do everything to favour a fair trial of the questions between them. Blunders must take place from time to time and it is unjust to hold that because a blunder during interlocutory proceedings has been committed the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.”

Learned counsel conceded that a party seeking to apply for extension of time within which to appeal is in a totally different position. Counsel, citing Cotton, L.J. in Polini v. Gray 12 Ch D 438 at 446 submitted that

“when there is an appeal about to be prosecuted, the litigation is to be considered as not at an end.”

I entirely agree with the submission that the litigation is to be considered not at an end but the parties are no longer standing on an equal footing as was the case before judgment. Furthermore, when a judgment is delivered in the lower court, it is presumed to be correct until the contrary is shown. [See Odiase and Another v. Agho and Ors. (1972) 1 All NLR. (Part 1) 170 at 175]. In the one case, i.e. before hearing and judgment, the litigant has no trial at all; in the other, when he lodges an appeal, he has had a trial and lost [see Ratnam v. Cumarasamy (1965) 1 WLR. 8 at 12 per Lord Guest].

Learned counsel commended the dictum of my learned brother, Bello, J.S.C. in Bowaje v. Adediwura (1976) 6 S.C. 143 at 147 prior to the Practice Directions. In that case, Bello, J.S.C. said:

“The court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel [see T.A. Doherty and Another v. R.A. Doherty (1964) 1 All NLR 299, G.B.A. Akinyede v. Appraiser (1971) 1 All NLR. 162].”

Counsel also specifically cited Ojora v. Odunsi (1964) NMLR 12, Ahmadu v. Salawu (1974) 1 All NLR 318 and Alagbe v. Oluwo of Iwo (1978) 1 NLR. 55. I do not think the court today will depart from the course of justice if culpable negligence or inadvertence of counsel is established by any litigant. That amounts to exceptional circumstances deserving of the court’s most sympathetic consideration. The dictum, however, was not meant as a licence for counsel to allege negligence or inadvertence in himself or a shield or sanctuary for carelessness, negligence, or in advertence.

Learned counsel are, by the calling of their profession, responsible men in whom the vice of negligence or inadvertence is a rare attribute. And when, in the exceptional cases, counsel is established to be guilty of negligence, a situation deserving of the most favourable consideration arises if and only if the litigant has not himself been guilty of negligence. If both the litigant and his counsel are guilty of negligence, the burden to be discharged of showing that the litigant is entitled to the exercise of the discretion of the court is a very heavy one indeed. Any litigant who fails to check on his counsel to ascertain if necessary steps have been taken to comply with the rules of court is as guilty as his counsel.

Learned counsel submitted that the 5th paragraph of the Practice Directions purports to modify existing law and practice and that the reasons which were considered adequate to merit extension of time in Bowaje v. Adediwura (1976) 6 S.C. 143; Doherty v. Doherty (1964) 1 All NLR 299; Akinyede v. the Appraiser (1971) 1 All NLR. 162; Ojora v. Odunsi (1964) 1 All NLR. 318 and Alagbe v. Oluwo of Iwo (1978) 1 NLR. 55 and other cases which were considered good law from 1961 to 1982 were to be regarded as no longer good law.

Learned counsel went on to submit that the Practice Direction is unconstitutional and void on 4 grounds or reasons:

(1) It purports to be a legislation directing the Justices of the Supreme Court as to the manner in which they should exercise judicial discretion conferred on them by law. By so doing, it goes beyond the regulation of practice and procedure and encroaches on the exercise of judicial powers conferred on the court;

(2) The Chief Justice of Nigeria with or without the concurrence of the other members of the Supreme Court acting extra-judicially have no power under the law or the Constitution of Nigeria to issue a statement purporting to have the force of law or purporting to overrule, reverse or nullify the effect of the previous decisions of the court or even of any other court in the land or purporting, in effect, to direct how the present or future members of the court shall exercise the discretion vested in the court.

(3) Apart from a law enacted by the National Assembly prior to the 31st of December, 1983 or a Decree enacted by the Federal Military Government on or after that date, it is not competent for the Chief Justice of Nigeria acting with the concurrence of the other Justices of the Supreme Court or a majority or them to reverse or overrule or nullify previous decisions of the court except when they are sitting as a duly constituted court and when that court or a majority thereof is satisfied that such previous decisions were given per incuriam.

(4) The Supreme Court, being a court of law, is obliged to adjudicate on cases and controversies before it on the basis of pre-determined rules of law. It has no power to determine such cases and controversies on policy grounds or on the basis of expedience. It had previously determined that the law embodied in section 31(4) of the Supreme Court Act or in Order 1, rule 5 of the Supreme Court Rules gave it a discretion to extend time in certain circumstances. It has no power to determine thereafter that in similar cases it has no discretion to extend time in the very same or similar circumstances, save on the basis that the provisions of the enactment or rule of court under consideration have been altered.

Counsel finally submitted in his brief that unless “persuaded that a previous decision was given per incuriam, the Supreme Court is, under the common law doctrine of stare decisis, bound by its own previous decisions. Learned counsel urged that since 1st October, 1979 the common law is to be deemed to be a law enacted by the National Assembly and referred to page 56 of Nwabueze ... The Presidential Constitution of Nigeria and Nwabueze’s Federalism in Nigeria under the Presidential Constitution’ page 46. They are aids in the administration of the rules of court. Chief F.R.A. Williams, S.A.N. was supported in his submission by Kehinde Sofola, S.A.N. (who was ambivalent in his submission), Chief Gani Fawehinmi, Chief Anyamene, S.A.N.

Mr. E.O. Molajo, S.A.N. in opposition submitted that the issue of the Practice Directions 1982 by the Chief Justice of Nigeria is squarely within the powers conferred on him by section 216 of the Constitution. He submitted that the Practice Direction clarifies the conditions for the exercise of the discretion in Order 1, rule 5 Supreme Court Rules 1977 and that the Practice Direction does not purport to and cannot apply to the provisions of section 31(4) of the Supreme Court Act. He was fully supported by Mr. T.J.O. Okpoko and partly by Kehinde Sofola, S.A.N. Mr. Okpoko submitted that complaints by members of the Bar about the Practice Directions may go to the amendment of the rules prescribing periods and not to the constitutionality of the Practice Directions.

Learned counsel for the appellant readily conceded that the Chief Justice of Nigeria has power under section 216 of the 1979 Constitution to make rules for regulating the practice and procedure of the Supreme Court. Section 213 (4) of the Constitution is apposite and worthy of mention and consideration in view of the fact that the Practice Direction is principally aimed at enforcing compliance with the 1977 Rules of the Supreme Court. It reads:

“Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall, subject to section 216 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”

By virtue of section 274 (1) (a) of the Constitution, the Supreme Court Act is deemed to be an Act of the National Assembly and the Rules of the Supreme Court 1977 as well as the Supreme Court Act are existing laws by virtue of sub-section 5 of section 274. Section 216 of the Constitution which it is conceded empowers the Chief Justice of Nigeria to make rules reads:

“subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.”

Liberalism is the hallmark of the attitude of this Court towards the interpretation of the Constitution. See Nafiu Rabiu v. The State (1980) 8-11 S.C. 130; Adesanya v. President of the Federal Republic of Nigeria and Another (1981) 5 S.C. 112. For the interpretation of this section, section 277 (4) of the Constitution provides:

“The Interpretation Act 1964 shall apply for the purposes of interpreting the provisions of this Constitution.”

Section 10 of the Interpretation Act 1964 provides the guidelines for the interpretation of enactments conferring statutory powers and duties. sub-sections (1) and (2) thereof will be helpful and of great assistance in seeking the proper construction of section 216 of the 1979 Constitution. They read:

“(1) Where an enactment confers a power or imposes a duty the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2) An enactment which confers power to do any act shall be construed as also conferring all other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.” (Italics mine).

What is a ‘Rule’ in the context in which it is used? Osborne’s Concise Law Dictionary 6th Edition by John Burke defines a ‘Rule’ at page 296 thus:

(1) A regulation made by a court of justice or a public office with reference to the conduct of business thereon. Rules made under the authority of an Act of Parliament have statutory effect. Rules of Court are made by judges under the Judicature Acts for the regulation of practice and procedure.

(2) An order or a direction made by a court of justice in an action or other proceeding;

(3) A principle of law, e.g. the rule against perpetuities, or the rule in Howe v. Lord Dartmouth.

Of Rules of Court, Words and Phrases Legally Defined 2nd edition Vol. 4 p. 357 quotes section 14 of the Interpretation Act 1889 as follows:

“In every Act passed after the commencement of this Act, unless the contrary intention appears, the expression ‘rules of court’ when used in relation to any court shall mean rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court ... The power of the said authority to make rules of court as above defined shall include a power to make rules of court for the purposes of any Act passed after the commencement of this Act and directing or authorising anything to be done by rules of court.”

The power to issue the Practice Directions, in my view, is included in the power to make rules regularising the practice and procedure in the Supreme Court. Practice Directions do not have the authority of rules of court although they are instructions in aid of the practice in court. They cannot by themselves overrule court decisions.

Turning to the 4 grounds of unconstitutionality given by the learned Counsel for the appellant, I find myself unable to agree with counsel that they are valid grounds for declaring the Practice Direction 1982 ultra vires, unconstitutional, null and void and of no effect. Paragraph 5 of the Practice Direction does not direct the Justices of the Supreme Court as to the manner in which they should exercise judicial discretion conferred on them by law. The wordings are clear and simple and in their natural meaning, the Practice Direction does not direct the Justice of the Supreme Court in respect of any matter. On the contrary, it directs litigants and their counsel to keep to the times and period prescribed by the Rules.

Secondly, it does not overrule or purport to overrule, reverse or nullify the effect of previous decisions of this Court. Granting extension of time is in the absolute discretion of the court in applications properly before it. In matters requiring the exercise of the discretion of the court, each application is considered in the light of its own peculiar facts and no one interlocutory order in such applications is precedent for another one. See Jenkins v. Bushby (1891) 1 Ch 484 at 495; Odusote v. Odusote (1971) 1 All NLR. 219 at 222. The Chief Justice of Nigeria has not, with or without the concurrence of a majority of or all the justices, attempted by the Practice Direction or proceeded by the Practice Direction to overrule, reverse or nullify previous decisions of the Supreme Court. Such a meaning cannot by any stretch of imagination be read into any of the six paragraphs of the Practice Directions.

The Practice Direction has not deprived the Supreme Court of its discretion in applications for extension of time either under section 31(4) of the Supreme Court Act or under Order 1, rule 5 of the Supreme Court Rules 1977. It cannot be presumed that rules of court are not complied with except under exceptional circumstances. It is necessary to observe that during the oral hearing, learned Counsel repeatedly conceded that rules of court have to be obeyed and that his submissions should not be construed to support the contrary. That being so, there seems to be no construed to support the contrary. That being so, there seems to be no conflict between the objective of the Practice Direction, 1982 and the repeated declarations of counsel. And if the rules of court are obeyed, not treated as a deed letter or denied compliance with reckless abandon in the hope that applications to court to amend the breach would be granted as a matter of course, the unfavourable treatment of applications for compliance outside the periods prescribed by the Rules on which learned Counsel has founded his complaints and in the main his challenge to the constitutionality of the Practice Direction would not be called for.

Kehinde Sofola, S.A.N., despite his bitter recollection of his experiences in court after the issue of the Practice Directions, could not but praise the laudable aims and objective of the Practice Directions.

Let us not present negligence, carelessness, inadvertence and misconception of law as a banner of excellence in our legal profession. Let these defaults disappear from the arena of practice of the law by lawyers in our courts.

In Williams v. Hope Rising (1982) 1-2 S.C. 145 at 152, this Court (per Idigbe, J.S.C.) emphasised the need of providing material upon which to exercise its discretion in granting extension of time when the learned justice said:

“when a court is called upon to make an order for extension of time within which to do a certain thing (i.e. extension of the time prescribed by the rules of court for taking certain procedural steps) the court ought always to bear in mind that rules of court must prima facie be obeyed and that it therefore follows that in order to justify the exercise of the court’s discretion in extending the time within which a procedural step has to be taken, there must be some material upon which to base the exercise of the court’s discretion; any exercise of the court’s discretion; where no material for such exercise has been placed before the court would certainly give a party in breach of the rules of court the uninhibited right of extension of time and the provisions as to time within which to take procedural steps would indeed in such circumstances have no legal content.”

I do not think any court would stand by and see the legal content of its rules made a dead letter or violated recklessly as if the rules do not exist or exist to be broken.

The object of section 31(4) of the Supreme Court Act and Order 1, rule 5 of the Supreme Court Rules is to give the Court a discretion to extend time with a view to the avoidance of injustice to the parties [Schafer v. Blyth (1920) 3 KB 143]. Wide though the discretion is, it is a judicial discretion and must be exercised on fixed principles, that is according to rules of reason and justice, not according to private opinion [Sharpe v. Wakefield (1891) A (173] or even benevolence [Kierson v. Joseph (Thompson & Sons Ltd.) (1913) 1 KB 58] or sympathy [Bevington v. Perks (1925) 2 KB p. 231] and the exercise of the discretion must be justifiable [Ritter v. Godfrey (1920) 2 KB 46].

Sir Udo Udoma, J.S.C. dealing with matters of discretion in the case of Odusote v. Odusote (1971) 1 All NLR. 219 at 222 said:

“The question of adjournment is a matter of discretion of the court concerned and must depend on the facts and circumstances of each case. For in matters of discretion, no one case can be authority for another and

‘the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion’ per Kay, JJ. in Jenkins v. Bushby (1891) 1 Ch 484 at 495 ...

The short answer to Mr. Sonoiki’s contention is that however wide the discretion of the court may be under this rule, the cardinal principle is that such power must be exercised judicially.”

This Court is fully conscious of its inherent power to act intra-judicially, to overrule its previous decision given per incuriam or shown to be defeating the ends of justice. See Bucknor McLean v. Inlaks Ltd. (1980) 8-11 S.C. 1 at p. 24 and 25. However, since a court is not bound by a previous decision to exercise its discretion in a particular way because that will be in effect putting an end to the discretion, the need for the court to sit and overrule its previous decisions given in exercise of its discretion does not arise.

It is my view that the Practice Directions more than anything else enhance the prospect of securing compliance with the provisions of the Rules and limit the incidence of non-compliance thereby securing quick dispensation of justice. The court’s principal function is the adjudication of cases coming before it with justice and fairness. The rules of court are designed to secure the ends of justice in each case within a reasonable time. That was the expressed principal aim of the Practice Directions (as contained in paragraph 6 thereof) in consonance with the entrenched rights of parties in section 33 (1) of the 1979 Constitution.

It was for the above reasons that I dismissed the objection of counsel to the constitutionality and validity of the Practice Directions, 1982.

Karibi-Whyte, J.S.C. On the 10th September, 1984, counsel for the appellants, Chief F.R.A. Williams, S.A.N, brought an application calling upon this Court to “examine the constitutionality and legality of the Practice Direction issued by this Court on Monday the 26th April, 1982 and its application to recent decisions of the Supreme Court on applications for extension of time within which to appeal or to take a step in processing an appeal for hearing.”

Because any ruling of this Court on the application was bound to affect other appeals now before this Court in which counsel for the appellant is appearing counsel in all the appeals likely to be affected were heard in argument for or against the legal propositions sought to be determined in this application.

Chief F. R. A. Williams, S.A.N., and Chief Gani Fawehinmi filed briefs in respect of the application, Kehinde Sofola, S.A.N., for the respondents and E.A. Molajo, S.A.N., Mr. A. N. Anyamene, S.A.N., and T.J. Nnomigbo-Okpoko as amici curiae did not file any briefs. The contention of the applicants/appellants is that the Practice Direction made by the Chief Justice of Nigeria dated 26th April, 1982, is ultra vires and unconstitutional, and that decisions given on it were given per incuriam. On the 11th September, we delivered our ruling upholding the constitutionality of the practice directions issued by the Chief Justice of Nigeria on the 26th April, 1982 and dismissed the objection. I reserved the reasons for my ruling to today. I now state the reasons for my dismissing the objection.

It is necessary to set out at once and verbatim the full test of the Practice Direction challenged. It is as follows—

“1. The Supreme Court Rules, 1977, came into force on 1st September, 1977.

3. It cannot be emphasised, however, that all Rules of Court are statutory and are therefore meant to be complied with, notwithstanding the provisions of Order 10 of the 1977 Rules which give the Court the power to direct that any non-compliance with the Rules may be remedied by either the appellant or the respondent as the case may be. Such a remedy, as is well known, may be by way of waiver or by the granting of extension of time within which to comply.

5. Accordingly, both appellants and respondents in civil matters are hereby informed that, except in very exceptional circumstances, the Court will no longer direct or order that any non-compliance with the Rules, such as failure to appeal within the time specified therein or to file briefs of argument within the time allowed, may be remedied either by extension of time or by any other means whatsoever.

The powers of the Chief Justice to make rules for regulating the practice and procedure of the Supreme Court are derived from section 216 of the Constitution 1979, which came into force on the 1st October, 1979. Accordingly, for the powers to be intra vires and constitutional they must fall within the purview of the meaning of” rules ... for the practice and procedure of the Supreme Court.” The contention forcefully urged by the protagonists of the ultra vires and unconstitutional view is the enabling constitutional provision i.e. s. 216, neither contemplated nor covered the making of Practice Directions. The contention is that only RULES OF COURT were contemplated. Chief Williams, in a fairly comprehensive brief traced the sources and legislative history of the section of the Constitution on which the practice direction is founded; analysed the judicial decisions on extension of time and set out the judicial view as to the guiding principles governing exercise of the discretion. Chief Williams, in criticising the practice direction, referred to certain historical inaccuracies therein in paragraphs 1 and 2, relating to the exercise of discretion by this Court. He submitted that the provisions were not new and that the principles for the exercise of the discretion have been developed and applied by this Court for over twenty years (and not merely four years) without any change. Chief Williams summed up his submissions at pp. 14-15 and paragraph 5.2 of his brief as follows—

“5.2

Unconstitutionality of the Practice Direction:

The appellants will submit that the Practice Direction is unconstitutional and void for the following reasons:

(a) In so far as it purports to be a legislation, it goes beyond the regulation of practice and procedure and purports to direct the Justices of the Supreme Court as to the manner in which they should exercise judicial discretion conferred on them by law thereby encroaching on the exercise of judicial powers conferred on the Supreme Court.

(c) Apart from a law enacted by the National Assembly prior to the 31st December, 1983 or a Decree enacted by the Federal Military Government on or after that date, it is not competent for the Chief Justice of Nigeria acting with the concurrence of the other Justices of the Supreme Court or a majority of them to reverse or overrule or nullify previous decisions of the Court except when they are sitting as a duly constituted court and when that court or a majority thereof is satisfied that such previous decisions were given per incuriam.

(d) The Supreme Court, being a court of law, is obliged to adjudicate on cases and controversies before it on the basis of pre-determined rules of law. It has no power to determine such cases and controversies on policy grounds or on the basis of expediency. It has previously determined that the law embodied in section 31(4) of the Supreme Court Act or in Order 1, rule 4 of the Supreme Court Rules gave it a discretion to extend time in certain circumstances. It has no power to determine thereafter that in similar cases it has no discretion to extend time in the very same or similar circumstances, save on the basis that the provisions of the enactment or rule of court under consideration have been altered.”

Chief Gani Fawehinmi also supported the application and in his brief made four submission, on the same lines as follows—

“1. PRACTICE DIRECTION IS NOT A RULE OF COURT.

2. PRACTICE DIRECTION, IF IN CONFLICT WITH A RULE OF COURT, IS VOID.

3. THE CHIEF JUSTICE OF NIGERIA HAS NO CONSTITUTIONAL POWER TO REGULATE THE PRACTICE AND PROCEDURE OF THE SUPREME COURT BY PRACTICE DIRECTION BUT ONLY BY RULES OF COURT.

4. CONSEQUENTLY, THE PRACTICE DIRECTIONS IN QUESTION OR ANY OTHER PRACTICE DIRECTIONS MADE BY THE CHIEF JUSTICE ARE UNCONSTITUTIONAL.”

The contention of the applicants may be accurately formulated by finding answers to the following questions. First, does section 216 of the Constitution 1979 invest the Chief Justice of the Federation with the powers to make PRACTICE DIRECTIONS as distinguished from Rules for regulating the PRACTICE AND PROCEDURE of the Supreme Court? Secondly, if it does, is the Practice Direction as made within the constitutional powers of the Chief Justice to make?

I have designedly framed these questions positively to contrast with the negative stance of the applicants. The hub of the contention so forcefully canvassed before us is that the making of the Practice Direction is unconstitutional and its content ultra vires the Chief Justice. There is no doubt in my mind that if the first question is answered in the negative, it becomes unnecessary and irrelevant to consider the second. But immediately the first question is in the affirmative, it will be necessary to consider whether the exercise of the powers in the Practice Direction is within the constitutional powers of the Chief Justice to make and for the Court to exercise. This is because of the legal effect of the distinction between the Constitutional powers of the Chief Justice to make the Practice Direction, and the scope of his power to control the court in the exercise of a discretion invested in it by statute. It is necessary for the correct answers to the question posed in this ruling to make this distinction. I concede that there are circumstances when the exercise of a power to make rules may be constitutional yet the rules made may be ultra vires and unconstitutional. This distinction occurs between laying down a general rule which guides the exercise of a discretion and laying down a rule which excludes the exercise of a discretion. Whereas the first is constitutional and intra vires, the latter is not.

I shall now consider the submissions of learned Counsel in the answer to the questions I have posed. I have already pointed out that what was being challenged is the constitutionality of the Practice Directions. Their application to recent decisions of this Court on application for extension of time within which to appeal or to take a step in processing appeals for hearing was also said to be in violation or the rules of precedent, unconstitutional, and that the decisions based on them were made per incuriam.

The first question as to whether the Chief Justice had the constitutional powers to make Practice Directions involves a determination of the true scope and extent of the Rule-making powers of the Chief Justice.

Section 216 of the Constitution of the Federation 1979 provides—

“Subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.” (Italics mine).

The operative words in this section are “rules for regulating practice and procedure.” The contention of applicants led by Chief Williams is that the Practice Direction made is not a rule within the section and that it was not made by the Chief Justice in the exercise of his legislative power under that section. He contended that the Practice Direction was never published in the Gazette to accord it with the status of judicial notice under s. 29 of the Law (Miscellaneous Provisions) Act. Accordingly, it was submitted that the Practice Directions had no legal basis and that the Chief Justice had no power to regulate the practice and procedure of the Supreme Court by directions.

Mr. Anyamene, S.A.N., and Chief Gani Fawehinmi supported the contention of Chief Williams. Chief Fawehinmi referred to Hume v. Sommerton (1890) 25 QBD 239 at p. 245 and Langton v. Langton (1960) All ER. 657, in amplification and submitted that in England practice directions enjoyed no statutory authority, a fortiori, it had neither constitutional nor statutory foundation in this country. He conceded that the absence of publication would, if validly made, not affect its validity, Publication it was submitted goes to the question of admissibility in evidence and of judicial notice. Mr. Sofola, S.A.N., with whom Mr. E. A. Molajo, S.A.N. and T. J. Nnomigbo-Okpoko as amici curiae agreed, submitted that the Court has powers under s. 216 of the Constitution to issue practice directions, and especially the one now in issue which Mr. Sofola described as commendable. Mr. Molajo contended that although England practice directions were traditionally published in the law reports, the Practice Direction in issue having been published in the Supreme Court Reports was sufficiently published. The issue therefore as I said earlier in this ruling, is that of the true scope of the powers of the Chief Justice under s. 216 of the Constitution. The expression in s. 216 where the Chief Justice is vested with powers is to regulate “the practice and procedure” of the Supreme Court. It is therefore pertinent to determine the meaning of this phrase. In Attorney-General v. Sillem (1864) 10 H.L.C. at 724, Lord Westbury, where considering the powers of the Court of Exchequer under s. 26 of the Queen’s Remembrancer’s Act, and whether the Barons had any powers to create a new right of appeal, defined “practice” as denoting the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the limit or walls of the court itself. Under this power any rule might be laid down by the Barons for the guidance of their own proceedings that did not require express legislative sanction.” (Italics mine for emphasis). Again in Poyser v. Minors (1881) 7 QBD 329 at p. 333, referring to the word “practice” in s. 102 of the County Courts Act 1959 which authorised County Court Judges with the approval of the Lord Chancellor, to frame rules and orders for regulating the practice of the Courts and forms of proceedings therein, it was said,

“Practice in its larger sense ... denotes the mode of proceedings by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the court is to administer the machinery as distinguished from its product.”

Generally speaking a matter of practice and procedure may and usually does arise in the course of an action. The words practice and procedure are always used in juxtaposition and are convertible terms–See McHarg v. Universal Stock Exchange Ltd. (1895) 2 QB. 81. Re Oddy (1895) 1 QB. 392 at p. 394. Thus the phrase “practice and procedure” in s. 216 relate to rules made by a person or authority having the power to do so governing the manner in which proceedings in the Supreme Court shall be regulated.

What then is a practice direction? I have endeavoured to state the judicial definition of practice. With respect to what is direction, I shall first consider its etymological meaning. In ordinary language, the words “order” and “direction” are interchangeable terms. As defined in the Pocket Oxford Dictionary, 6th Edition at p. 237, the word ‘direction’ means, “order” or “instruction what to do, point to or from ...” And in Benson v. Benson (1941) p. 90 at p. 97, Lord Merriman P considering s. 5 (13) of the Mental Treatment Act 1930 where the Board of Control was empowered to direct that a period of temporary treatment be extended for a period not exceeding 3 calendar months said,

“A direction is said to be ‘an order to be carried out’, and order for example, so far as the Supreme Court is concerned, is said to be ‘a direction other than final judgment’.”

Thus practice and direction although separately and independently defined, when juxtaposed, a Practice Direction may be said to be concerned with the rules indicating the manner in which applications in an interlocutory proceedings in court shall be dealt with or regulated and the provision of guidelines as to what should be done. Simply put it concerns and regulates the manner a particular rule of court shall be complied with or adhered to.

Can it be successfully contended that the phrase “practice and procedure” used in section 216 of the Constitution 1979 does not contemplate the regulation of the practice of the Supreme Court by means of Practice Directions? For such a contention to succeed, it must be shown that practice directions are inconsistent with the rules of court made by virtue of s. 216 and are repugnant to the existing rules. It is important to observe that the provisions of Order 1, rr8, 9, 10(1), 14 and 15 of the Rules of the Supreme Court, 1977 are specific as to powers invested on the Court and not the Chief Justice to make directions. It is however my opinion that it was the intention of the Constitution of 1979 to vest in the Chief Justice all the powers and functions of the Chief Justice and the Supreme Court, provided in the Constitution of 1963. Accordingly the Chief Justice was vested with the powers to make directions as contained in the Rules. It is not disputed that the Rules of the Supreme Court by virtue of S. 274 of the Constitution is an existing law. The provision of section 216 of the Constitution 1979 was aimed at enabling the Chief Justice to make such rules as he considers desirable and within the framework of the Constitution and judicial practice, for the proper and efficient functioning of the Supreme Court in the administration of justice. The words which to me seem plain, clear and unambiguous should be construed without unnecessary interpolation or restriction. It is in this regard that the adherence to the liberal approach to the construction of our Constitution advocated in Nafiu Rabiu v. The State (1980) 8-11 S.C. at p. 149, by Sir Udo Udoma, J.S.C., becomes useful and compelling. It was there said as follows—

“And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.”

Thus section 216 must be construed with all the enabling powers within the meaning of the expression ‘practice and procedure’. To do otherwise and to adopt the restrictive approach adopted by Chief Williams and Chief Gani Fawehinmi before us will result in defeating the intention of the section and the wider intention of the Constitution. Apart from the provisions of s. 216, no other section of the Constitution has been suggested as lending support to the view advocated. I here adopt the wisdom of Sir Udo Udoma, J.S.C. in Nafiu Rabiu v. The State (supra)

“... that the approach of this Court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magit valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”

I have no doubt whatsoever in my mind, that the expression “practice and procedure” in s. 216 of the Constitution 1979 was intended to invest in the Chief Justice all the rule-making powers of the Supreme Court, statutory and inherent. Hence the powers to give and issue directions regulating compliance with rules of court are within the scope and purview of s. 216 of the Constitution 1979. The provisions of s. 216 must be given a broader construction in response to demands of justice and to reach a practicable result. It is only by such a construction that the absurdity that will result from adopting a contrary view will be avoided. Having held that the power to make the practice direction in issue is not unconstitutional and that the Chief Justice has the necessary powers, the second and more intriguing issue which I indicated I will discuss later and which I now proceed to do is whether the practice direction as made is unconstitutional and ultra vires.

The question in issue here is, as Chief Williams contends, whether the Chief Justice can by means of practice direction alter statutory rights conferred on litigants; or fetter the exercise by the judges of their judicial discretion, or extra-judicially overrule and nullify previous decisions of this Court. The contention of Chief Williams which has been very ably put in his brief, was supported by Chief Gani Fawehinmi, Kehinde Sofola, S.A.N. and Mr. Anyamene S.A.N. It was strongly opposed by Mr. Molajo S.A.N. Although there is considerable force and substance in the contention of Chief Williams, I think the validity of the argument is negatived by a clear misapprehension of the real issues involved.

It is necessary first to identify the real issues by reproducing the enabling statutory provisions. These are s. 31 (2), (4) of the Supreme Court Act 1960 and rule 5, Order 1, Order 9, rule 7 Rules of the Supreme Court, 1977. S.31(4) provides—

“The Supreme Court may extend the periods prescribed in sub-section (2) except in the case of a conviction involving sentence of death.”

Sub-section (2) of section 31 provides—

“The periods prescribed for giving notice of appeal or notice of application for leave to appeal are—

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

Order 1, r. 5, provides—

“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.”

The power of this Court to extend time within which to appeal or to apply for leave to appeal are evidently statutory. But the expression used in the provisions is the predatory word “may” which vests in the Court a discretion.

The Supreme Court Rules 1977 in Orders 3, r.4, 7 rr.3 (3) and 6(1), and Order 9, rule 3, 7 prescribe the time within which a particular step shall be taken towards the prosecution of an appeal. For the purposes of this application, the non-compliance with Order 9, rule 7 seems to enjoy pride of place.

Order 9, rule 7 provides—

“If an appellant fails to file his brief within the time provided for in rule 3 above, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the Court.”

Order 9, rule 3(1) prescribes the appellant file his brief within eight weeks of the receipt of the record of appeal, the respondent by Order 9, rule 3(2) is to file his brief in Court and serve on the appellant six weeks after service on him of the brief of the appellant. Appellant may file a reply to the brief of the respondent within twenty-one days after service on him of the brief of the respondent. Order 10 enables the Court to waive non-compliance with any of these Rules.

Chief Williams was quite correct in his submission that before the publication of the practice direction, the attitude of this Court was more benevolent, and in applications for extension of time within which to appeal under the Act or within which to take steps in the appeal, the discretion of the Court had been more readily exercised in favour of an applicant whose only reason for failure to comply is the carelessness, negligence or inadvertence of counsel–See Ojora v. Odunsi (1964) NMLR. 2; Doherty v. Doherty (1964) 1 All NLR. 299; Bowaje v. Adediwura (1976) 6 S.C. 143; Akinyede v. The Appraiser (1971) 1 All NLR. 162; Ahmadu v. Salawu (1974) 1 All NLR. 318; Alagbe v. Oluwo of Iwo (1978) 1 LRN. 55. But since after the 26th April, 1982, the following cases clearly demonstrated a shift in the position of the Court. The Court’s new attitude is that the carelessness, negligence, inadvertence or misconception of the law of counsel by themselves do not constitute exceptional circumstances or reasons to grant extension of time–See Chief Benson v. Agip Oil (1982) 5 S.C. 1; Echeazu v. Awka Community Council S.C. 18/1983, 6/3/84; Raji v. Apena Ltd. SC. 56/1983, 19/3/84; Akiwu Motors v. Dr. Sangonuga S.C. 97/1983 delivered 2/7/84. It is undoubted that from the reasons given by Justices in dismissing these appeals, the practice direction in issue was the determining factor in the exercise of their discretion. It is largely for this reason that Chief Williams has challenged the practice direction as a fetter on the exercise of discretion, and also as extra-judicial predetermination of issues not before the Court. None of these criticisms seems to me valid.

I agree entirely with the submission of Chief Williams that the judicial powers including the interpretative jurisdiction vested in the Supreme Court by s. 6 of the Constitution is only exercisable in respect of disputes before the Court. I also concede that the courts of this country preserve and follow strictly the common law doctrine of stare decisis, and that only a valid legislation has the effect of altering a decision of the Supreme Court. However, this Court may on its own for good reasons overrule its own previous decision–See Mrs. Bucknor-Maclean & anor. v. Inlaks Ltd. (1980) 8. S.C. 1, at pp. 25-26.

Chief Fawehinmi supports Chief Williams’ view. Mr. Anyamene also in support goes further to submit that since Odey v. Akam (1940) 6 WACA. 63, substantial justice to the parties has been the overriding consideration for the exercise of judicial discretion to extend time.

It is pertinent to reproduce the relevant portion of the practice direction in issue which reads—

(5) Accordingly, both appellants and respondents in civil matters are hereby informed that, except in very exceptional circumstances, the Court will no longer direct or order that any non-compliance with the Rules, such as failure to appeal within the time specified therein or to file briefs of argument within the time allowed, may be remedied either by extension of time or by any other means whatsoever.

I italicise the words “very exceptional circumstances” as the operative phrase in this practice direction. It is pertinent for the purpose of this ruling to observe that although the power to extend time to appeal in s.31 (4) Supreme Court’s Act 1960 is statutory, the legislation vests in the Court by the very words used, i.e. ‘may’ in the provision, the exercise of a discretion. See Cooper v. Hall (1968) 1 WLR. 360. The discretion is to be exercised in a judicial manner, that is, according to established laid down principles. It is however clearly not a typically judicial function as such. It is a function which lies awkwardly between clearly judicial acts and clearly administrative acts and are referred to as judicial discretions. Similar discretions are exercised in awarding costs, sentencing prisoners, varying the terms of a trust. It is aptly called judicial discretions because all non-ministerial powers of courts are referred to as judicial, and as I have said above the powers have to be exercised in accordance with reasonably well-settled principles.

I shall now consider the nature of the discretion vested in the Court by s.31 (4) of the Supreme Court Act 1960 and Order 1, rule 5 of the Rules of the Supreme Court 1977. Section 31(4) deals with the exercise of discretion to extend the right of appeal. Sub-section (2) of section 31 prescribes the scope of the right of appeal. The substantive right to appeal is limited to the statutory period prescribed in sub-section (2). The Court is invested with a discretion to extend the period so prescribed. The discretion so vested is not a matter of substantive right but a matter of practice and procedure. The substantive right ends where the exercise of discretion begins. Similarly, there is the general power provided in Order 1, rule 5, Rules of the Supreme Court 1977 to exercise discretion and enlarge time or direct a departure from the Rules when this is required in the interest of justice. In both cases the legislation invests in the Court the discretion to extend time or direct a departure from the Rules when the interest of justice demands it. The exercise of this discretion does not in my opinion involve any alteration in the operation of the right of appeal vested in the litigant, since the power to exercise discretion arises after the right of appeal has been lost. Herein lies the misapprehension of the nature of the power exercised. The effect of the practice direction, is to lay down a general rule which guides the Court in the exercise of its discretion. It does not concern a right of appeal which in any event does not exist. The practice direction merely governs the manner in which a substantive right may be enforced. It is not a law which governs that right. I do not think therefore that the contention of Chief Williams that the exercise of the discretion in the manner prescribed in the practice direction effects an alteration in the right of appeal is right. It was also submitted that the practice direction, fetters the exercise of discretion by determining how the discretion should be exercised. That it would operate as an extra-judicial determination of proceedings in Court, and has altered the rule of precedent. These submissions appear formidable only because the real matter in issue has been misunderstood. In my opinion the issue lies with understanding the nature of the discretionary power to be exercised. At the expense of repetition, the nature of the discretionary power to be exercised by virtue of the practice direction depends upon whether the direction has laid down a general rule which guides the Court, or whether it has by its provision excluded the exercise of discretion. I have already held that the Chief Justice has the power to make practice directions to regulate the exercise of discretion in the Supreme Court. The first three paragraphs of the practice direction clearly indicate the policy which the Chief Justice is aiming by the direction in paragraph 5 to protect. I think it is both right and convenient for the Chief Justice to lay down general rules for the guidance of the Court in the exercise of its discretion with respect to certain issues which require regulation in the interest of justice. It is indeed much better for the Chief Justice to do so publicly as has been done in this case.

It is a rule laid down by the Chief Justice for the guidance of the Court in the exercise of its discretion. It is not binding on the Justices but will be followed if the interests of justice so demand. This like laying down a policy for the Court provided that the Court considers that a particular case before it calls for the application of such policy.

In the English House of Lord’s case of British Oxygen Co. Ltd. v. Board of Health (1971) AC. at p. 624, it was argued that the Minister cannot make a rule for himself as to how he will in future exercise his discretion. The case of Rex v. Port of London Authority Ex parte Kynoch Ltd. (1919) IK.B.176 was cited as authority for the proposition. This contention was rejected. Lord Reid adopted the dictum of Bankes L.J. at p. 184 in that case, with approval, where Bankes L.J. said,

“There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him, it will in accordance with its policy decide against him, unless there is something exceptional in his case ... On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.”

The exercise of a discretion is the same whether by the court or any other body. Whereas in the first class or cases the door for the exercise of discretion is still wide open within the limits of the policy, i.e. where exceptional case is made and in the interest of justice, in the second class there is no exercise of discretion the decision having already been without hearing, predetermined. There is no fetter on the exercise of discretion in the first class of cases. The discretion has been completely removed in the second class of cases-See also Rex v. Torquay Licensing Justices, Ex parte Brockman (1951) 2KB. 784 at p. 791; R v. Rotherham Justices 55 T.L.R. 718; R v. Holborn Licensing Justices, Ex parte Stratford Catering Co. Ltd. 42 T.L.R. 778. Thus there is nothing prohibiting making rules regulating the exercise of a discretion if this is in the interest of justice. It is clear from the wording of paragraph 5 of the practice direction that the practice direction merely regulates but did not exclude the exercise of the discretion which will always be exercised in exceptional circumstances. This makes it permissible for the applicant invoking the exercise of the discretion of the Court to bring his case within that category. There is no doubt therefore that the practice direction in issue as formulated gives ample scope for the exercise of discretion. There is also no doubt that the provision allows for a hearing and for the establishing of exceptional circumstances. It cannot be said correctly that it will operate as an extra-judicial determination of proceedings in Court or a fetter on the exercise of discretion. I am satisfied it is not in violation of s. 6 of the Constitution.

Finally, it was argued that the practice direction has altered the doctrine of stare decisis. It is conceded that, at least, since the negligence or carelessness etc of counsel per se, no longer constitutes exceptional circumstances under the provisions of s.31 (4) of the Supreme Court Act 1960 and Order 1, rule 5, Rules of the Supreme Court, 1977 the cases decided on that ground are no longer authority for the purpose. It is a familiar and settled concept that the question of exercise of discretion is governed by several factors, at the same time. The factors, which are not necessarily constant, change with changing circumstances and times and cannot be regarded as immutable and applicable for all times. An exceptional circumstance may be a single factor or a combination of factors. In such a situation of variable factors and circumstances it is not possible to adhere to binding judicial decisions. In Odusote v. Odusote (1971) 1 All NLR 219 at p. 222, this Court observed and it has always been the view that the exercise of judicial discretion depends on the facts and circumstances of each case and, in matters of discretion, no one case can be authority for another. The Court cited with approval the English case of Jenkins v. Bushby (1891) 1 CH. 484 a p. 494, where Kay L.J. said,

“The Court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion.”

It is difficult to disagree with this dictum. Acceptance of the submission of Chief Williams would introduce inflexibility clearly inapposite with the exercise of discretion in view of its evanescent nature and circumstances. The dictum also accentuates the policy of the practice direction in issue required for the exercise of discretion. On a proper and careful reading of the practice direction, especially paragraphs 2, 4 and 6, thereof, the conclusion that it is essentially directed at parties and their counsel is inescapable. This is because there is still open to the Court in its consideration of each application a wide margin for the exercise of discretion. The categories of exceptional circumstances which may be taken into consideration are not listed and are therefore not exhausted and surely not closed. Hence each application will be considered on its merits. The overriding consideration of the interests of justice still remains as the ultimate consideration.

Admittedly, there have been pronouncements of Justices relying on the practice direction in issue in refusing applications. I take this to mean, and it was the case in all of them, that in such applications, exceptional circumstances other than that hitherto accepted, namely negligence of counsel, have not been shown. See Chief Benson v. Agip Oil (1982) 5 S.C. 1; Raji v. Apena Ltd. (supra). I am satisfied that the Practice Directions are not intended and do not operate as a fetter on the exercise of its discretion by the Court under section 31(4) of the Supreme Court Act 1960 or Order 1, rule 5 of the Rules. For the above reasons, I overruled the objection of Chief Williams in these proceedings.

Kawu, J.S.C. On 11th September, 1984, the full court unanimously ruled in this matter that the Practice Directions 1982 published in (1982) Supreme Court Law Reports at pages 76 and 77, which were issued by the Chief Justice of Nigeria on 25th April, 1982, are constitutional and legally valid. We also ruled that the Directions have not, in any way, affected the exercise of the Court’s discretion in all applications for an extension of time in which to appeal or in which to file briefs of argument. In the course of that ruling I said that I would give my reasons today, Friday, 30th November, 1984.

I have had the privilege of reading in draft the reasons given by my learned brother, Bello, J.S.C. for our ruling. I entirely agree with all those reasons and I respectfully adopt them as my own.

Oputa, J.S.C. On the 10th September, 1984, Chief F. R. A. Williams, S.A.N. launched a bold and determined frontal attack against the Practice Directions issued by the Chief Justice of Nigeria (hereinafter referred to as C.J.N.) on Monday, 26th April, 1982 and published in (1982) 4 S.C. 76 and “its application to recent decisions of the Supreme Court on applications for extension of time within which to appeal or take a step in processing an appeal for hearing.” He submitted “that the Practice Direction (aforementioned) is ultra vires and unconstitutional.”

From the various briefs and oral arguments advanced to the Court, it was apparent that there was a two pronged attack viz:

i. whether acting under section 216 of the 1979 Nigerian Constitution, the C.J.N. had the constitutional power to issue Practice Directions generally and then specifically the particular Practice Direction now complained of–whether in the case of this particular Practice Direction the C.J.N. acted intra vires or ultra vires his powers under the Constitution?

ii. whether the particular Practice Direction issued on 26th April, 1982 is or is not “oppressive, harsh and unduly strict?”

After listening to the various arguments of the learned Counsel in the case and other learned Counsel as amici curiae, the court held that in issuing the Practice Directions now complained of, the C.J.N. was acting intra vires his power under the Constitution and that those Practice Directions have not in any way fettered the exercise of its discretion by this Court in cases of any non-compliance with the Supreme Court Rules. We also emphasised that the policy of the court had been and still is (in spite of those Practice Directions) to consider each application on its merits and within its peculiar circumstances, subject, of course, to the overall aim and primary duty and obligation imposed on the court by the demands of justice that appeals be decided on their merits. This was our terminus ad quem–our decision, our ruling on the 10th September, 1984. The Court dismissed the objections to the Practice Directions and then reserved reasons for that dismissal–the termini a quo–for today 30th November, 1984. Hereunder are my reasons.

To better follow the arguments, for and against the Practice Directions and my reasons for holding that the whole exercise was constitutional, I will set forth in extenso the full text of the Practice Directions:—

(1) The Supreme Court Rules 1977 came into force on 1st September, 1977.

(2) Because its provisions were new and in order to give both counsel and litigants ample time to familiarise themselves with them, this Court over the last four years, has been very lenient with both counsel and litigants in the application of its mandatory provisions (italics are mine).

(3) It cannot be emphasised, however, that all Rules of Court are statutory and are, therefore, meant to be complied with, notwithstanding the provisions of Order 10 of the 1977 Rules which give the court the power to direct that any non-compliance with the Rules may be remedied by either the appellant or the respondent as the case may be. Such a remedy, as is well known, may be by way of waiver or by the granting of extension of time within which to comply.

(4) After four years of leniency by this Court, we think the time has now arrived for the court to be more strict in cases of non-compliance with the provisions of the Rules, particularly in civil cases.

(5) Accordingly, both appellants and respondents in civil matters are hereby informed that, except in very exceptional circumstances, the court will no longer direct or order that any non-compliance with the Rules, such as failure to appeal within the time specified therein or to file briefs of argument within the time allowed, may be remedied either by extension of time or by any other means whatsoever.

(6) With these Directions, it is hoped that parties and/or their counsel will comply promptly with the provisions of the Rules and thereby make the hearing of cases in this Court possible on the dates for which they are fixed for hearing. As the saying goes, justice delayed is justice denied.”

These are the allegedly “offensive” Practice Directions.

Before considering the objections they have been vigorously urged against these Directions, I will like to analyse and consider the Directions one by one to find out whether on a proper reading and construction of those Directions, these objections would even have been taken.

Direction No. 1

This is quite innocuous as it is merely a statement of a fact not in dispute that the Supreme Court Rules came into force on 1st September, 1977.

Direction No. 2

This direction read in conjunction with direction No. 1 above clearly shows the aim of the Practice Directions of the 26th April, 1982–namely, the effective implementation of the Supreme Court Rules 1977. The Directions are not making new Rules. They merely ask that the mandatory provisions of the existing 1977 Rules be obeyed. This in my view is not asking for too much.

Direction No. 3

I will say here that having regard to the status of this Court, it has to be taken for granted that parties and counsel appearing before the country’s final court of appeal will act with commensurate responsibility and promptitude. I cannot imagine some of the applications coming before this Court ever coming before the Privy Council or the House of Lords. Direction No. 3 merely stated the obvious that rules of court are made to be obeyed. They are made to ensure the administration of justice with ease, certainty and despatch. Their mandatory provisions should be seen and regarded as mandatory with a nullification for non-compliance and not as directory only.

Direction No. 4

This is a clarion call to all sleeping litigants to wake up and to all lukewarm lawyers to fire up. It even draws the necessary distinction between criminal and civil cases. The Court is “to be more strict in cases of non-compliance with the provisions of the Rules, particularly in civil cases.” A civil case is a luxury and it can be compromised at any stage and at anytime with the consent of the parties. On the other hand, in a criminal case where the life and liberty of the subject may be in jeopardy, the court will be less strict in cases of non-compliance with the provisions of the Rules. This direction shows considerable maturity and should be commended not attacked.

Direction No. 5

This seems to be the bone of contention–the target of all the attacking arrows. Read properly, this direction is still predicated on the Rules–the 1977 Supreme Court Rules. It is not making any new rule. It was issued obviously in terrorem to serve as the proverbial sword of Damocles. Whether that sword will actually fall or not depends on the 1977 Rules of the Supreme Court, and on the discretion of the court, certainly not on the Practice Directions.

Direction No. 6

This direction makes it very clear that the intendment and the entire scheme of the Practice Directions is “prompt compliance with the provisions of the existing 1977 Supreme Court Rules.” What then is the objection to the Practice Directions? I do not know and I cannot easily comprehend. It may well be that the Practice Directions were misconceived and misapplied in some individual cases. The answer there, would have been to appeal to the court (which has jurisdiction to over-rule itself) to correct the error. That has not been done. Instead the Practice Directions themselves (predicated on the Rules) have been attacked and one has to consider the points urged in opposition.

The first and in fact the only radical and substantial question arising from the objections of Chief Williams is:—

Had the C.J.N. the constitutional power and statutory competence to issue those Practice Directions now complained of?

If he had the power then the subsidiary question whether or not those particular Practice Directions were strict, harsh or oppressive will pale into constitutional insignificance and become constitutionally irrelevant because where the power exists to issue those Directions, their harshness, strictness or oppressiveness will not derogate from the power unless the exercise of the power was expressly subject to those reservations. Otherwise the actual impact of the Practice Directions (constitutionally and validly made)–their harshness, strictness and oppressiveness will certainly lend themselves to different considerations and different solutions, but certainly not challenging the constitutionality of the Practice Directions themselves.

I will now pose the vital question namely:—

i. Had the C.J.N. power under the Constitution to issue practice directions generally?

ii. Did that constitutional power cover the issuance of the particular Practice Direction now complained of?

I will deal with these issues one by one.

Constitutional Power to Issue Practice Directions

Chief Williams’ attack on the constitutional powers of the C.J.N. to issue directions generally was not as vigorous and as spirited as his attack on these particular Practice Directions. In his brief, Chief Williams submitted inter alia as follows:—

(a) “In so far as the Practice Direction purports to be a legislation, it goes beyond the regulation of practice and procedure and purports to direct Justices of the Supreme Court as to the manner in which they should exercise judicial discretion conferred on them by law thereby encroaching on the exercise of judicial discretion.”

(b) “The Chief Justice of Nigeria, with or without the concurrence of the other members of the Supreme Court, acting extra-judicially and not sitting as a court, has no power under the law or the Constitution of Nigeria to issue a statement purporting to have the force of law or purporting to over-rule, reverse or nullify the effect of the previous decisions of the Court or even of any other court in the land or purporting, in effect, to direct how the present or future members of the Court shall exercise the discretion vested in the Court by law.”

It is apparent from the above and abundantly clear from the oral arguments of the counsel that the issues of the power to issue practice directions generally and the default and shortcomings of the particular Practice Directions now being probed, were not kept strictly separate and apart. They are very closely related, I agree, but it will be better to treat them separately.

Chief Fawehinmi as amicus curiae agreed with Chief Williams’ submissions and reinforced same, by submitting that in England practice directions have no statutory basis, and submitted quite forcefully “that in England a practice direction which conflicts with a rule of court is void–Absolutely void.” He further submitted that “In Nigeria the same principle is applicable except that in Nigeria the Practice Direction is not only void, it is unconstitutional because it is not ordered to be made by section 216, sub-section (1) of the 1979 Constitution.” He finally submitted that since a practice direction is not a rule of court and the rules of court had been made which can easily be amended or modified by another rule of court through the instrumentality of subsidiary instrument duly published in the Gazette, the Chief Justice of Nigeria by his practice directions published on pages 76-77 of (1982) 4 S.C. has, with utmost respect, not acted within the purview of section 216 of the 1979 Constitution. Chief Fawehinmi however conceded that failure to publish the particular practice direction in the Gazette will not affect its validity if it is otherwise valid. Gazette publication goes only to proof and not to essential validity.

Mr. Sofola, learned Counsel for the respondent, Molajo as amicus curiae concurring, submitted that the C.J.N. has power to issue a practice direction. Mr. Molajo powerfully contended that the C.J.N. is in fact vested with legislative power to issue practice directions. The publication of this particular practice direction in (1982) 4 S.C. p. 76 in fact accords with the traditional practice in England where these directions are published in the law reports. Mr. Molajo in fact lauded this particular practice direction as “commendable”.

Having reviewed the two opposing views ably agitated, the stage is now set to find an answer to the first radical and substantial question–Has the C.J.N. the constitutional power and authority to issue a practice direction? In England, the Rules of the Supreme Court–Order 61, rule 2 1965 Rules–provide for a Practice Master whose duty it is to control the business of the Central Office, and to give the necessary directions with respect to questions of practice and procedure relating to the business of the court. Chief Fawehinmi was right when he submitted that in England the directions of the Practice Masters have no statutory authority. But England is a long way off. Let us come nearer home.

Section 216 of the 1979 Constitution provides:

“Subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.”

It should, I think, be common ground that the aim of a practice direction is to “regulate the practice and procedure of the court.” Thus the Appeal Committee of the House of Lords in England issues directions regulating the practice and procedure of the House as the Practice Master does for the Queen’s Bench Division. In other words, someone or some authority is always charged with the responsibility of regulating the practice and procedure in the various courts. Rules of court, like the Supreme Court Rules, are also made “for regulating the practice and procedure of the courts.” Thus from a purely functional angle, rules of court and practice directions are designed to achieve the same object and attain the same objective. Section 216 of the 1979 Constitution uses the expression “may make rules for regulating practice and procedure.” It is my humble view that once it is established that the aim or object of any rule made by the C.J.N. is for regulating the practice and procedure of the Supreme Court, the C.J.N. automatically derives the power to make such a rule from section 216 of the 1979 Constitution. Put in another way, section 216 is expressed in general terms. It does not discriminate between rules of court, strictly speaking, and other rules regulating practice and procedure, like practice directions. It comprehends both.

From yet another angle, it ought to be common ground that rules of court have greater authority and stand on a much higher pedestal than mere practice directions. Logically therefore, the admitted power to make the one definitely higher will include the power to make the other obviously lower. The greater includes the less. In the final result, I therefore hold that under section 216 of the 1979 Nigerian Constitution, the C.J.N. has constitutional competence to issue practice directions “subject to the provisions of any Act of the National Assembly” or in the present day parlance, a Decree. We have not been referred to any Act of the National Assembly or any Decree limiting or delimiting the powers granted to the C.J.N. by section 216 of the Constitution. His (C.J.N.’s) issuance of the Practice Directions, the subject matter of this application, was therefore not ultra vires his constitutional power and void but intra vires those powers and valid.

I shall now consider the real objection to the Practice Direction, namely:

1. That it interferes with the exercise of its discretion by the Court in relation to

(a) Extension of time within which to comply with a requirement of any of the provisions of the Supreme Court Rules pursuant to Order 1, rule 5;

(b) Extension of time within which to file notice of appeal or a notice of application for leave to appeal under section 31(4) of the Supreme Court Act 1960.

A careful study of the provisions of the Practice Direction reveals that it was directed not to the Court but to parties and their counsel to rouse lethargic appellants or respondents to action by holding this sword of Damocles over their heads. That the sword may never be allowed to fall recklessly is shown in Direction No. 5 which uses the following expression:—

“except in very special circumstances.”

Now, every rule requiring the Court to exercise a discretion imposes on the applicant seeking the favour of the Court’s discretion, a duty to make out a case of “special circumstances.” Whether one uses the phrase “special circumstances” or “very special circumstances” is immaterial. The discretion is still with the Court and the Court has to be satisfied that the case before it is a proper case calling for the exercise of its discretion, before it grants the relief sought. This particular Practice Direction has not defined or limited the scope of what should amount to “very special circumstances.” That is still left to the discretion of the Court. The Practice Direction cannot and has not repealed the existing rules relating to extension of time. It has not removed Order 1, rule 5. In fact the sole aim of the Practice Direction is to ensure prompt compliance with the provisions of the 1977 Supreme Court Rules including Order 1, rule 5. The Practice Directions are in aid of, not inconsistent with, Order 1, rule 5.

With regard to extension of time within which to file notice of appeal or a notice of application for leave to appeal, Chief Williams appears to be batting on a very firm and solid wicket. In his brief, he developed the following arguments that:—

“In so far as it (the Practice Direction) purports to be a legislation, it goes beyond the regulation of practice and procedure...”

The power to extend time within which to file notice of appeal or an application for leave to appeal is statutory having been conferred by section 31 (4) of the Supreme Court Act No. 12 of 1960. Anything curtailing the power or enlarging it or interfering with it in any way, must be something on the same pedestal as the source of the power–namely a legislation. I am therefore in complete agreement with Chief Williams’ submission above.

Chief Williams also contended in his brief that:—

“It (the Supreme Court), had previously determined that the law embodied in section 31 (4) of the Supreme Court? Act... gave it a discretion to extend time in certain circumstances. It (Supreme Court) has no power to determine thereafter that in similar cases it has no discretion to extend time in the very same or similar circumstances save on the basis that the provisions of the enactment...under consideration have been altered.”

I also agree completely.

The above arguments and submissions ex facie look quite formidable and unanswerable. But the reality is different. The question now arises:—

Did Practice Direction No. 5 in any way interfere with section 31 (4) of the Supreme Court Act? If it did not, that will conclude the issue. Secondly, in cases of exercise of discretion, no case is a precedent for future exercise of discretion, so that the issue of “similar cases” and “similar circumstances” will not arise.

Let me however examine the Practice Direction No. 5. It stipulates:—

“... except in very exceptional circumstances, the court will no longer direct or order that any non-compliance with the Rules, such as failure to appeal within the time specified therein or to file briefs of argument within the time allowed may be remedied either by extension of time or by any other means.”

The important injunction in Practice Direction No. 5 is that “the Court will no longer direct or order that any non-compliance with the Rules (the Supreme Court Rules) ... may be remedied either by extension of time or by any other means” provided for by the Supreme Court Rules.

Now the Supreme Court Rules deal mainly with the processing of appeals for hearing and the extension of time envisaged in Order 1, rule 5 of the Supreme Court Rules is expressly limited to “the time provided by these Rules for the doing of anything to which these Rules apply.” A typical example is Order 9 of the Supreme Court Rules dealing with the “filing of briefs of argument.” Order 9, rule 3 prescribed certain time limits within which certain steps should be taken. Order 9, rule 7 clearly brought in Order 1, rule 5 when it provided:—

“If an appellant fails to file his brief within the time provided for in rule 3 above, or within the time as extended by the court ...” Such extension no doubt will be under Order 1, rule 5.

Now “Time for Appealing” to the Supreme Court is expressly provided for in section 31(2) of the Supreme Court Act. Extension of such a time is statutory under section 31(4) of the Supreme Court Act No. 12 of 1960. The Supreme Court Rules seem to have taken notice of this, for Order 7, rule 3(2) excludes “an application made after the expiration of the time for appealing.” Application for leave to appeal under S.31 (3) of the Supreme Court Act is to be made in the first instance to the court below but can be made again to the Supreme Court “within 15 days from the date of hearing of the application by the court below.” Practice Direction No. 5 specifically mentioned and limited itself with “non-compliance with the Rules.” It then proceeded to give examples:—

“Such as failure to file an appeal within the time specified therein.”

The word therein can mean nothing except “within the time specified in the Rules.” Now the Rules did not specify time to file notice of appeal. The Supreme Court Rules did not. The Supreme Court Act No. 12 of 1960 dealt with that in sections 31, 31(2) and 31(4). These are statutory. It is only when the statutory requirements of section 31 have been satisfied that an appeal properly lies, and the Supreme Court Rules will then begin to apply. Practice Direction No. 5 gave a wrong example which can conveniently be ignored under the principle of falsa demonstratio non nocet. No applicant for extension of time within which to file notice of appeal can ever come under the Supreme Court Rules. He comes under the Supreme Court Act, where Practice Direction No. 5, expressly predicated on the Supreme Court Rules, does not apply and was not meant to apply.

The Practice Directions now under review clearly and in no uncertain or ambiguous language stated that they were dealing with “The Supreme Court Rules 1977 which came into force on 1st September 1977.” Throughout, the Practice Directions referred to “the Rules” and ended on a note which left no doubt as to their aim and intendment, viz:—

“With these Practice Directions, it is hoped that parties and/or their counsel will comply promptly with the provisions of the Rules ...”

The rights of appellants under section 31 (4) of the Supreme Court Act remained and still remains untouched by the Practice Directions.

Also, an authority with power to make a law may promulgate a severe or harsh law. The courts have, by giving the words used “very liberal interpretation”, always managed to smoothen out the roughness and mitigate the harshness of oppressive legislations let alone a practice direction.

Thirdly, it is correct that the sole object for which courts exist is to decide the rights of the parties by hearing their cases, or their appeals, and deciding them on the merits. Rules of court and practice directions are rules touching the administration of justice; they are rules established for attaining justice with ease, certainty and despatch; and as such, they must be understood as made consistent with the fundamental principles of justice–deciding cases and appeals on their merits. Consequently, in all cases where a strict adherence to the rules would clash with that fundamental principle, the courts have invariably leaned heavily on the side of doing justice: Rex v. Phillips (1756) 1 Barr Pt iv. 301 (per Lord Mansfield). Rules of procedure are merely means not ends in themselves.

To conclude, I will do no better than quote the ipsissima verba of the C.J.N. in his ruling on this objection delivered on 11th September, 1984–”We hold that the exercise of discretion by this Court is not fettered. In the circumstances, this Court will always give liberal interpretation to the Practice Direction such that each application will be considered on peculiar circumstances and the overall aim that the interest of justice demands that appeals be decided on their merits.”

These are my reasons for over-ruling the objection of Chief F. R. A. Williams, S.A.N., on the 11th September, 1984.

Nigeria LII

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