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10TH NOVEMBER, 1960.

F.S.C. 256/1960

3PLR/1960/16 (SC)





LIONEL BRETT, F.J. (Read the Judgment of the Court)



Mr. R. A. Fani-Kayode, Q. C. (Mr. S.A.S. Sowemimo with him) -For the Appellants.

Chief F.R.A. Williams Q.C. (Messrs. Omisade and Kolawole with him) – For the Respondents.






ELECTION MATTERS – PLEADINGS:  Filing notice more than one month after the date of the decision appealed against – Effect

ELECTION MATTERS – ELECTION PETITION:- Federal Legislative House (Disputed Seats) Regulations, 1959 – Dismissal of petition – Appeal against dismissal – Whether decision dismissing petition interlocutory – Whether appeal lies to the Federal Supreme Court there from

ELECTION MATTERS – ELECTION PETITION:- Interlocutory decision – Whether appeal lies there from.

ELECTION MATTERS – COURT:– Source of jurisdiction to hear election petitions

INTERPRETATION OF STATUTE:- “Existing Law” – Meaning of – Section 57, Nigeria (Constitution) Orders in Council.

INTERPRETATION OF STATUTE:- Section 147(2)(d) of the Con­stitution Order – Confers right of appeal from final decisions of a High Court

PRACTICE AND PROCEDURE – APPEAL:- Interlocutory decision of Election Tribunal – Whether can be subject of appeal

PRACTICE AND PROCEDURE – APPEAL:- Right of appeal – How conferred or granted – Whether it can be inferred by implication.

PRACTICE AND PROCEDURE – APPEAL:- Right of appeal from final decision of High Court – Section 147(2) (d), Nigeria (Constitution) Orders in Council, 1954 -1959 – Ap­peal with leave – Section 147(3), Nigeria (Constitution) Orders in Coun­cil.

WORDS AND PHRASES:- Whether the word “decision” included an interlocutory as well as a final decision


BRETT, F.J. (Delivering the Judgment of the Court):

The appellant in this case, J.A.O. Akande and the first respondent, Adeniyi Adedamola were rival candidates in the Egba Central constituency at the general election for the House of Representatives held on the 12th December, 1959. The respondent was declared elected and the appellant proceeded to question the return by bringing an election petition under the Federal Legislative Houses (Disputed Seats) Regulations, 1959 (hereinafter called the Disputed Seats Regulations). On the 20th April, 1960, the petition was set aside at the in­stance of the respondent by Charles, J., sitting in the High Court of the Western Region, for failure to comply with regulation 12 of the Disputed Seats Regulations, and since it was too late to lodge a fresh petition the order setting aside the petition had the effect of disposing of the matter. The appel­lant wished to challenge the setting aside of his petition, and on the 26th April he filed a motion in the High Court asking for leave to appeal to this court, a course which presupposed that the decision to be appealed from was an interlocutory one. On the 27th May Charles, J., granted leave to appeal, and on the 8th June notice of appeal was filed.

When the appeal came up for hearing in this court on the 1st Sep­tember, Chief Rotimi Williams, for the respondent, having filed notice of a preliminary objection under rule 21 of the Federal Supreme Court Rules, submitted that since the notice of appeal had been filed more than one month after the date of the decision appealed against, contrary to regulation 9 of the Disputed Seats Regulations, the appeal was not properly before the court and ought to be dismissed. He pointed out correctly, that this was one matter in which regulation 61 gave no power to grant an extension of time. The court heard argument from Chief Williams on his objection, but before Mr. Fani-Kayode was called on for the petitioner the court raised the ques­tion, whether assuming the order setting aside the petition to have been cor­rectly treated as an interlocutory one, an appeal lay to this court at all. Further hearing was then adjourned to the 24th October to enable counsel to come prepared to argue this point of jurisdiction.

The composition of the court was different on the 24th October from what it had been on the 1st September, and it was agreed that argument should be confined to the sole issue of the competency of an appeal against an interlocutory order made on an election petition.

Mr. Kayode and Chief Williams were at one in submitting that such an appeal was competent, but they based their submissions on entirely different grounds. At the time when the right of appeal, if there is such a right, ac­crued the Governor-General was empowered to make provision by regula­tion for the hearing of election petitions and for the jurisdiction of the courts, including this court, in election petitions, under S.16 of the Nigeria (Constitution) Orders in Council, 1954 to 1959, (hereinafter called the Con­stitution Order) and it is by virtue of these powers that the Disputed Seats Regulations were made. Mr. Kayode, while conceding that the Disputed Seats Regulations do not expressly confer any right of appeal, submitted that by necessary implication regulation 9 clearly confers a right of appeal from “a decision on an election petition,” and that since the word “decision” was not defined it must include an interlocutory as well as a final decision, Chief Williams supported the submission that the word “decision” included interlocutory as well as final decisions but maintained that a right of appeal was not to be conferred by implication and that the place to look for the right now in question was in the Constitution Order as it read at the material date.

His argument may be summarized as follows. Section 147(2)(d) of the Con­stitution Order confers right of appeal from final decisions of a High Court, and s.147(3) provides that an appeal shall lie with the leave of the High Court or the Federal Supreme Court in the cases specified in paragraphs (a) (b) and (c) and, under paragraph (d), in “such other cases as may be pre­scribed by any law in force in the Region.” Section 56E empowers the Fed­eral Legislature to make provision by law for any matter for which the Gov­ernor-General may make provision by regulation under s.16, and this has the effect of bringing the jurisdiction of the courts on election petitions within the terms of item 43 of Part I of the Second Schedule (The Exclusive Legislative List) when read with paragraph (a) of Part IV of the Second Schedule. An appeal lay by leave of the Judge making the order from an inter­locutory decision made in the course of any suit or matter, under what, in the 1958 revision of the Laws of the Federation and Lagos, was s.6(b) of the Fed­eral Supreme Court (Appeals) Ordinance (Cap. 67), and in relation to the hearing of election petitions this provision had effect, under s.57(3)(a) of the Constitution Order, as if it had been enacted by the Federal Legislature under the powers conferred by s.56E. The Adaptation of Laws (Miscellane­ous Provision) Order, 1960, (L.N.22 of 1960) made under s.73 of the Nigeria (Constitution) (Amendment No. 3) Order in Council, 1959, had purported to delete the whole of s.6 (then numbered s.3) of the Federal Supreme Court (Appeals) Ordinance, but although it might have appeared to the Governor­-General necessary or expedient to delete paragraph (a) of the section, as in­consistent with s.147 of the Constitution Order, it could not have appeared necessary or expedient for the purposes stated in the enabling provision to delete paragraph (b), and the Court should treat the attempted deletion as invalid.

Chief H.O. Davies, who had been instructed on behalf of the Attorney General of the Federation in two other appeals of which the competence de­pended on the view taken by the Court in this appeal, addressed the Court as amicus curiae, and submitted that no appeal lay.

Since the general election to the House of Representatives held in De­cember, 1959, this Court has heard and adjudicated on a number of appeals from final decisions of the High Court’s given on election petitions, but with­out having to consider from what provision of law its jurisdiction to do so was derived. In a reasoned decision dismissing an application for leave to appeal to Her majesty in Council against the judgment in Onitiri v. Benson (F.S.C. 76/1960); 1960 S.C.N.L.R 314, the Court drew attention to the special nature of the jurisdiction in election petitions, but did not go into this questions. It is now necessary to consider the matter. It is well established that a right of ap­peal can only be conferred by express words, and no-one suggests that the Disputed Seats Regulations contain such words. As regards final decisions I would accept the submission of Chief Williams that the right of appeal was conferred by s. 147(2)(d) of the Constitution Order, and this would appear to be the view on which the Governor-General has acted. In regulation 134 of the Elections (House of Representatives) Regulations, 1958, made before s.147 of the Constitution Order had been amended so as to specify the rights of appeal to this Court, a right of appeal was expressly conferred but in the Disputed Seats Regulations, made after the amendment of s.147 of the Con­stitution Order and revoking regulations 121 to 136 of the earlier regulation is was not.

As regards interlocutory decisions, I think Chief Williams’ chain of reasoning breaks down before the stage at which it would become necessary for us to decide whether or not the deletion of S.6(b) of the Federal Supreme Court (Appeals) Ordinance was ultra vires. The reference in s.57 of the Con­stitution Order to an “existing law” means a law which was in force or had ef­fect immediately before the 1st October, 1954, and all the relevant provi­sions of that section speak as from the 1st October, 1954. From that date until the 24th October, 1959, when S.56E was inserted in the Constitution Order, the jurisdiction of the courts over questions relating to membership of the Federal Legislative Houses was not a matter included in the Exclusive Legislative List, but one to be provided for only by regulations made by the Governor-General, and I am not prepared to hold that the insertion of S.56E had the incidental effect of applying S.6(b) of the Federal Supreme Court (Appeals) Ordinance to election petitions. I might find more difficulty in reaching this conclusion if the Ordinance, when originally enacted had applied to election petitions and had ceased to do so because at some date legislative authority had been taken away from the Federal legislature, but s.56E conferred power in the matter for the first time on any legislature in Nigeria other than the Governor or Governor-General, and it seems to me impossible to hold that the Ordinance automatically became applicable to matters completely outside its original scope.

I would hold therefore, that no appeal lies to this court from an inter­locutory decision of a High Court made in the course of an election petition. Mr. Kayode indicated that if the court took this view he would wish to sub­mit that the decision appealed against was not an interlocutory but a final one. Subject to any argument to the contrary, I am disposed to agree, but it is not clear that such a finding would help the appellant, since the filing of the notice of appeal appears to have been well outside the time allowed by reg­ulation 9 of the Disputed Seats Regulations. However, that may be, it would be premature at the present stage to propose that the appeal should be dis­missed.


I concur.


I concur.

Appeal Dismissed.

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