YEKINI ONIGBEDEN & ANOR (APPELLANT)
ISHOLA BALOGUN & ANOR (RESPONDENT)
(1975) All N.L.R. 232
Division: Supreme Court
Date of Judgment: 24th April, 1975
Before: Coker, Sowemimo and Ibekwe, JJ.S.C.
APPEAL from the High Court, Lagos.
The plaintiffs/respondents had sued the defendants/appellants in Ikeja Divisional Grade 'A' Customary court, for damages for trespass to land. The Customary Court found for the plaintiffs. Defendants appealed to the Lagos High Court which dismissed the appeal. On further appeal to the Supreme Court, the respondents objected to the appeal on the ground that defendants did not obtain the leave of either the High Court or Supreme Court as under S. 117 (4) (c) of the Constitution.
Defendants contended that no leave was necessary since S. 49 (1) Customary Court Law prescribes an absolute right of appeal and is covered by S. 117 (2) of the Constitution.
(1) The defendants' appeal is incompetent since they failed to obtain any leave to appeal and that since S. 117 (4) (c) of the Constitution specifically makes provisions for appeals to this Court from some other court, it is not competent for any State legislation to employ the provisions of S. 117 (2) (f) to validate what clearly runs foul of the provisions of S. 117 (4) (c) of the same Constitution.
(2) that to this extent S. 49 (1) Customary Courts Law is void.
APPEAL Struck out.
Cases referred to:
Mabinuori & ors. v. Samuel Onti Ogunloye  1 All N.L.R. 17 at 20.
Nabhan v. Nabham  1 All N.L.R. 47 at 54.
Nwobiala v. Inspector-General of Police (1960) 5 F.S.C. 243 at 245.
National Employers Mutual General Insurance Association Ltd. v. Unchay (1973) 4 S. C. 1.
Obed Boardman v. Sokoto Native Authority  1 All N.L.R. 214.
Statutes referred to:
Customary Courts Law, Cap. 31 Laws of Western Nigeria 1959, S. 49 (1).
Constitution of the Federation, 1963, S. 117.
Supreme Court Act 1960, S. 15.
Registration of Titles Act, S. 98 (6).
Rules and Orders referred to:
Rules of the Supreme Court, Order 7 rule 14.
APPEAL from the High Court, Lagos.
SUIT NO. S. C. 34/74.
Chief F. R. A. Williams for the Appellants.
Mr E. A. Molajo for the Respondents.
COKER, J.S.C. (Delivering the Judgment of the court)-The proceedings herein are concerned with an action instituted in the Ikeja Divisional Grade 'A' Customary Court where the present respondents, as plaintiffs, had sued the present appellants, then defendants, for damages for trespass to land "at Aiyedere at the jurisdiction of Grade 'A' Customary Court, Ikeja." The case was heard in that court by the learned President, Chief Ilori; seven witnesses gave evidence for the plaintiffs and four witnesses testified for the defence. The court also visited the farm in dispute between the parties and, in a reserved judgment, the learned President acceded to the claim of the plaintiffs and awarded judgment in their favour. In the course of that judgment, the learned President observed as follows:-
"From the evidence before this Court and from the inspection of the farmland it is clear beyond any doubt that this farm has long been in possession of the plaintiffs they have conclusively proved their case backed with strong evidence, I believe each and every one of those who have evidence for the plaintiffs, I am satisfied that the farmland was sold to Alliu Balogun and he, Alliu Balogun sold it to the plaintiffs."
Later on, and in the course of the same judgment, the learned President observed thus concerning possession of the farmlands:-
"From the evidence of the Manager or Inspector of Ajao farm an independent witness, I am satisfied that it has been proved that this farmland has for a long time been in possession of the plaintiffs first as customary tenants and later as purchasers and that the two defendants went and hired a caterpillar tractor and uprooted the cassava planted by the plaintiffs on the land."
He eventually gave judgment in favour of the plaintiffs, as stated before, for damages for trespass and costs.
The defendants appealed against this judgment to the High Court, Lagos, where a number of grounds of appeal were argued on their behalf before Taylor, C. J. In the course of a reserved judgment, the learned Chief Justice dismissed the appeal of the defendants with costs. The present appeal to this Court is from the judgment of the High Court.
The respondents in virtue of the provisions of Order 7 Rule 14 of the Rules of this Court had filed a notice of intention to rely upon a preliminary objection to the hearing of the appeal on the ground, as alleged by them, that the appeal was not properly before this Court and that it should be dismissed because "there is no right of appeal to the Supreme Court in this matter and no leave to appeal has been obtained as prescribed by the Constitution of the Federation, section 117(4) (c)." This ruling is a sequel to the arguments on the preliminary objection.
Before us it was argued by learned Counsel for the respondents and in support of the objection that the appellants had failed to comply with the peremptory provisions of section 117 (4) (c) of the Constitution of Nigeria. On the other hand, learned Counsel for the appellants submitted and maintained that the appellants need not apply for any leave in order to appeal to this Court since section 49 of the Customary Courts Law (Cap. 31, Laws of Western Nigeria, 1959, applicable in the Lagos State) prescribes an unconditional right of appeal to this Court and section 117 (2) (f) of the same Constitution confirms the right or rather confers a right of appeal to this Court without leave in the cases postulated by that subsection of section 117 of the Constitution.
There is of course no dispute that all rights of appeal are statutory and in order to enjoy and exercise such a right the statutory provisions on which the right is founded must be complied with. Section 117 of the Constitution of Nigeria, which prescribes constitutional rights of appeal provides, insofar as the present proceedings are concerned, as follows:-
"117 (1) The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the High Court of a territory.
(2)An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases-
(a) final decisions in any civil proceedings before the High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any criminal proceedings before the High Court sitting at first instance;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation of this Constitution or the constitution of a Region;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter III of this Constitution has been contravened in relation to any person;
(e) decisions in any criminal proceedings in which any person has been sentenced to death by the High Court or in which the High Court has affirmed a sentence of death imposed by some other court; and
(f) such other cases as may be prescribed by any law in force in the territory.
(4) Subject to the provisions of subsections (2) and (3) of this section, an appeal shall lie from decisions of the High Court of a territory to the Supreme Court with the leave of the High Court or the Supreme Court in the following cases-
(a) where the ground of appeal involves questions of fact, mixed law and fact or quantum of sentence, decisions in any criminal proceedings before the High Court, sitting at first instance;
(b) any case in which, but for the terms of the proviso to subsection (2) of this section, an appeal would as of right to the Supreme Court by virtue of paragraph (a) of that subsection;
(c) decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court; and
(d) such other cases as may be prescribed by any law in force of this territory.
Evidently, subsection (2) of this section provides for unconditional rights of appeal whilst subsection (4) makes provisions for rights of appeal exercisable only by leave "of the High Court or the Supreme Court."
Now the argument of learned Counsel for the respondents is that the present appeal, in order to be competent must come within the context of subsection (4) (c) since it is an appeal from the High Court of Lagos in a matter "in which an appeal has been brought to the High Court" from the Ikeja Divisional Grade 'A' Customary Court. The facts on which the submission is based, are unassailable; and although their application to the relevant law seems unexceptionable, the submission has been attacked by learned Counsel for the appellants who contended that the right of appeal which he is hereby exercising comes within the purview of subsection (2) (f) of section 117 of the Constitution of Nigeria. Learned Counsel for the appellants argued that subsection (2) (f) in effect has delegated to State laws (and ratified those laws) the powers to make laws prescribing for absolute rights of appeal exercisable without seeking for leave.
The submission by learned Counsel on both sides, engaged in a most formidable manner some aspects of our appeal laws on which the courts have hardly been called upon to pronounce. Indeed, a decision on the matter in hand must of necessity occasion a second look at the relevant provisions of our Constitution which have hereto for been taken for granted.
We have already stated that learned Counsel for the appellants grounded his right to appeal without any leave on the provisions of section 49 (1) of the Customary Courts Law (Cap. 31 Laws of Western Nigeria 1959) which in the events applied in the Lagos State. Those statutory provisions are as follows:-
"49 (1) An appeal shall lie to the Supreme Court from the order or decision of the High Court given in the exercise of its appellate jurisdiction conferred by sub-section (4) of section 44E or section 48 subject to the conditions and in accordance with the provisions of any law for the time being in force with respect to or regulating the practice and procedure of the Supreme Court in relation to appeals from the High Court."
We observe briefly, that we have made no reference to section 49 (2) of the Customary Courts Law as no argument turned on the provisions of that subsection and neither of the parties had invoked the subsection in the course of argument. Furthermore, learned Counsel for the appellants had contended that the right of appeal created by section 49 (1) of the Customary Courts Law is unconditional, that is to say, that as the section does not say that leave should be sought or obtained, it would be wrong to import those conditions into the construction of the section. Learned Counsel for the appellants referred us in this connection to the decision of this Court on a similar matter in the case of Mabinuori & ors. v. Samuel Onti Ogunloye  1 All N.L.R. 17, where at page 20, this Court observed as follows:-
"The short constitutional point therefore that has to be determined here is whether the provisions of section 98 (6) of the Registration of Titles Act gives ipso facto the right of appeal to the Supreme Court or whether whilst the right of appeal is given leave is still required. We have no doubt that it would be quite wrong to read into section 98 (6) words that are not there. The Act makes specific provision for appeal to the Supreme Court and we think that the words should be given their natural meaning which must be that the appeal is as of right. To read in a requirement for leave would be to put a possible fetter on the right of appeal and when power is given by the Constitution to make provision by legislation for cases, other than those already provided for in the Constitution, where appeal may be made to the Supreme Court we think that provision so made will be as of right under section 117 (2) (f) of the Constitution of the Federation unless the contrary is specifically provided for in the legislation concerned."
It is evident that the construction which this Court placed on the wording of section 98 (6) of the Registration of Titles Act in that case, seems inevitable and in our view the same principle of interpretation should apply in similar cases and similar wording should be interpreted consistently with the decision in Mabinuori & ors v. Ogunloye, supra. We must point out however that section 98 (6) of the Registration of Titles Act deals with a situation which is not directly comprehended by any other of the subsections of section 117 of the Constitution of Nigeria and it was and is possible to fix the construction placed upon that section within the ambit of section 117 (2) (f) of the Constitution. The problem in the case in hand is completely different for the argument ranged around the propriety of a State law which could be justifiably accommodated within the wording of section 117 (2) (f) of the Constitution but which would by so doing run foul of the provisions of section 117 (4) (c) of the same Constitution.
Before dealing further with the argument, it is necessary to observe that we are not oblivious of the conditions stated in section 49 (1) of the Customary Courts Law to which the right of appeal created by that subsection has been made subject. These relate to the conditions contained in the provisions of any law with respect to or regulating the practice and procedure of this Court. Obviously, these stipulations to which the right of appeal is subject, concern only the laws and conditions with respect to the practice and procedure of this Court and we think that as such they do not relate to substantive laws and are not relevant to the matters now being considered.
With respect to the controversy in hand, it should be observed that the contention of learned Counsel for the appellants is that section 49 (1) of the Customary Courts Law was justifiable as being within the umbrella of section 177 (2) (f) of the Constitution. Learned Counsel for the appellants however agreed that unless they are saved by the provisions of section 117 (2) (f) of the Constitution, the provisions contained in section 49 (1) of the Customary Courts Law would by virtue of the provisions of section 1 of the Constitution of Nigeria, 1963, be void as being inconsistent with the clear prescriptions of section 117 (4) (c) of the same Constitution. Surely, the only issue is whether or not section 49 (1) of the Customary Courts Law is indeed valid.
In Nabhan v. Nabhan  1 All N.L.R. 47 at page 54, this Court defining its attitude to the relationship to the Constitution of pre-existing rights of appeal observed thus:-
"It is inaccurate, on any construction, to speak of the Constitution as taking away existing rights of appeal. The Constitution merely lays down certain minimum rights of appeal and is not to be regarded as taking away any pre-existing rights which were not inconsistent with it."
The position therefore is that where a right of appeal was created and remained in existence, this Court would take the view that unless expressly or by implication so extinguished, the Constitution will not abrogate that right. The Customary Courts Law was stated to be enacted in 1949 and we think that unless the particular provisions be inconsistent with the Constitution which came into existence in 1963, the makers of the Constitution would be more inclined to preserve rather than destroy that pre-existing right of appeal. In support of his contention that section 117 (2) (f) of the Constitution authorises the creation of such absolute right of appeal whether or not such provision offends against the other provisions of section 117 (4) (c) of the same Constitution, learned Counsel for the appellants referred to the decision of the Federal Supreme Court in Nwobiala v. Inspector-General of Police (1960), 5 F.S.C. 243, where at page 245 of the Report, the Federal Supreme Court observed thus:-
"It will be convenient to begin by dealing with the preliminary objections to the competence of the appeal which were raised by Mr Onyiuke, Director of Public Prosecutions. In the first place, he said that although section 40 of the Eastern
Region High Court Law, 1955, is effective, under section 147 (2) (f) of the Nigeria (Constitution) Order in Council, 1954, to confer a right of appeal to this Court on a question of law in such a case as this, the right is subject to section 147 (3) (c) of the Order, and can only be exercised with the leave either of the High Court or of this Court. It will be enough to say that we do not regard subsection (3) of section 147 of the Order as imposing any restrictions on the rights of appeal conferred by or under subsection (2), and that we cannot accept the submission."
No reasons seems to be given by that court for refusing to accept the submission of the learned Director of Public Prosecutions to the contrary which in any case sought to thumb-nail the elenchus which must be and is indeed involved in the argument upholding the almightiness of section 117 (2) subject even to which section 117 (4) of the Constitution is expressed to be read. It seems to us also that section 117 (2) only makes specific provisions for absolute rights of appeal in-
(i) matters decided by the High Court at first instance (i.e. subsections (a and (b);
(ii) matters involving the interpretation of the Constitution and the entrenched provisions of the fundamental rights in Chapter III of the Constitution (i.e. subsections (c) and (d); and
(iii) decisions in criminal cases decided or affirmed by the High Court involving a sentence of capital punishment (i.e. subsection (e)).
If then, subsection (f) provides for the creation of absolute rights of appeal "in such other cases", the rights created thereby must be ejusdem generis with those outlined above, i.e. special cases, not otherwise already provided for in the Constitution and cannot be such as to be directly inconsistent with the provisions of section 117 (4) (c) of the same Constitution which prescribes conditional rights of appeal not in respect of matters which were decided by the High Court at first instance or of such other specific matters but with respect to the exercise of rights of appeal in matters or causes generally which had come before the High Court in its appellate jurisdiction. This Court had occasion before to deal with this issue and we pointed out the inconceivability of such a solution as is postulated by the argument of learned Counsel for the appellants when in the case of the National Employers Mutual General Insurance Association Ltd. v. Uchay (1973) 4 S.C. 1, at pages 7-8, we observed as follows:-
"We do not agree with learned Counsel's contention that the opening phrase "subject to the provisions of subsection 117 (2)" in subsection 117 (4) makes any law enacted under subsection 117 (2) necessarily valid for all purposes. It seems quite clear to us that subsection 117 (2) (f) cannot enable a State legislature to go beyond the limits of its legislative powers to make provision for appeals as of right in cases for which subsection 117 (4) (c) expressly prescribes that appeal must be by leave. We are of the view that it would be wrong to regard subsection 117 (2) (f) as conferring powers of delegated legislation upon a State legislature in such a way that the resulting legislation can override the express provision of the Constitution in subsection 117 (4) (c). Nor do we think that Obed Boardman v. Sokoto Native Authority  1 All N.L.R. 214 cited by learned Counsel in support of this strange submission does anything of the kind, since the case clearly deals with the question of the circumstances in which, on a refusal by a High Court to grant bail pending the determination of an appeal to it, the Supreme Court can exercise power to grant leave to appeal from such refusal."
Later, in the course of the same judgment, this Court remarked thus on the same point at page 10 of the Report:-
"We are unable to agree with the learned Attorney-General in this submission since section 35 must still fail as a piece of State legislation which deems a clearly appellate jurisdiction within the meaning and intendment of subsection 117 (4) (c) to be jurisdiction at first instance within the framework of subsection 117 (2) (f). A State legislature cannot enact a law under certain purported powers in the Constitution to convert a clearly expressed provision for a right of appeal only by leave into a right of appeal as of right. We consider that subsection 117 (2) (f) envisages a right of appeal in High Court proceedings at first instance, whereas subsection 117 (4) (c) clearly envisages cases in which the High Court has exercised its appellate jurisdiction. We do not, therefore, see why the phrase "subject to" in the latter subsection necessarily implies its subservience to the quite separate and independent provisions in subsection 117 (2) (f). Both subsections are complimentary and are necessarily so; and any attempt by a State law to make provision under subsection 117 (2) (f) which is inconsistent with the provision of subsection 117 (4) (c) that expressly requires appeals to be with leave, must be regarded as void as against section 1 of the Constitution of the Federation."
If, as was contended before us by learned Counsel for the appellants, section 117 (2) (f) envisages State legislation which could have the effect of over-riding the clear provisions of section 117 (4) (c), it must follow in our view that the provisions of section 117 (4) (c) would be completely meaningless. We do not think so. After all, there are other laws which impinge upon the same subject. In this connection, it is apposite to refer to the provisions of section 15 of the Supreme Court Act to the following effect:-
"15 (1) Where rights of appeal, with or without leave from decisions of the High Court of a State given in the exercise of its appellate jurisdiction in respect of State matters are prescribed by a law of a State, the Supreme Court shall, except in so far as other provision is made by any law enacted by, or having effect as if enacted by, the Legislature of the Federation, have the like jurisdiction to hear and determine appeals from decisions of that High Court given in the exercise of its appellate jurisdiction in respect of matters included in the Exclusive Legislative List or in the Concurrent Legislative List."
Here again, although section 15 vests in the Supreme Court the jurisdiction alongside the High Court of a State to decide matters within the Exclusive and the Concurrent Legislative Lists where rights of appeal to this Court are prescribed by the State legislation, the exercise is expressed to be subject as follows:-
(i) The legislation must be in respect of State matters; and
(ii) The legislation can only be effective in so far as no other provision is made by the Federal Legislature or any other law having effect as a Federal legislation.
These reservations seem to us to confirm the view that the integrity of section 117 (4) (c) of the Constitution of Nigeria is intended to be maintained and that the Federal Legislature has expressed itself unequivocably and wholesomely in respect of appeals from decisions of State High Courts in matters which had come before those High
Courts in their appellate jurisdiction. We are satisfied that while section 117 (2) confers unconditional rights of appeal in respect of certain matters therein prescribed, as well as kindred matters, sub-section (f) of the section can only prescribe and confer rights which are not dissimilar to the others prescribed by the other sub-subsections. After all, sections 117 (4) itself contains some sub-subsections and section 117 (4) (c) couched in pari materia with section 117 (2) (f) of the same Constitution, makes similar provisions as section 117 (2) (f) and we entertain no doubt that the provisions of section 117 (4) (c) only enables State legislation to be made for the creation of conditional rights which must be ejusdem generis with the rights specifically created by the other sub-subsections of that section. If that were not so, it would be possible and indeed it will enable a State legislation to create and confer conditional rights of appeal in purported exercise of their rights under section 117 (4) (c) of the Constitution which rights would render the provisions of section 117 (2) nugatory. This would be the case where a State law purporting to derive powers from section 117 (4) (c) of the Constitution, prescribes a conditional right of appeal from the State High Court in respect of a decision of that Court on a State matter given at first instance. The resulting legal chaos would beggar description and compel an immediate re-appraisal of the utility of section 117 of the Constitution of Nigeria.
We are satisfied that in so far as section 49 (1) of the Customary Courts Law (Cap. 31, Laws of Western Nigeria 1959) prescribes an unconditional right of appeal to this Court from decisions of the High Court of the State in its appellate jurisdiction, the provisions are incompetent and void. We are convinced that with respect to appeals to this Court from a State High Court on matters which had gone to the High Court on appeal from another court, the provisions of the Constitution are unambiguous and they relate to a matter under the purview of Item 44 in the Exclusive Legislative List of our Constitution and unless such intention is transparently manifest, we do not see how the same Constitution could provide for the validity of a State legislation which would have the inevitable effect of negativing directly or otherwise its own statutory provisions.
We are in agreement with learned Counsel for the respondents in this case that this appeal is not competent in so far as section 117 (4) (c) of the Constitution of Nigeria is not complied with and we hold that section 49 (1) of the Customary Courts Law cannot in these matters effectively create an absolute right of appeal to this Court in respect of matters on which the High Court of the State had itself sat on appeal from another court.
The objection of learned Counsel for the respondents is upheld. We hold that the present appeal is incompetent and it is struck out. The appellants will pay to the respondents the costs of this appeal fixed at