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ISAAC T. PALMER
V.
JOHN OJOBO AGBEYEGBE
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
22ND DAY OF APRIL, 1936
2PLR/1936/44 (WACA)
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OTHER CITATION(S)
2PLR/1936/44 (WACA)
(1936) III WACA PP. 34 – 35
LEX (1936) – III WACA PP. 34 – 35
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BETWEEN:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
ISAAC T. PALMER — Plaintiff
AND
JOHN OJOBO AGBEYEGBE — Defendant
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REPRESENTATION
No appearance by parties.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Rules of courts — Rules of Court published in 1928 under Art. 12(1) of the West African Court of Appeal Order-in-Council, 1928 — Applicability of in operation in Nigeria
COURT:- Practice approved/endorsed by appellate court in the absence of an applicable rule of court — entertainment of an application for conditional leave to appeal — Whether open to High Court to embrace same
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The amendment of the Royal Order in Council so as to include Nigeria within the area of the jurisdiction of the Court, made the Rules of the Court automatically applicable to Nigeria. Every alteration in the jurisdiction of a Court does not require for its Rules to be remade before they can apply to the new area of jurisdiction.
2. When a case of a would-be appellant comes within paragraph (a) of section 3 of the West African Court of Appeal Ordinance, 1933, and is not affected by either of the provisos to that section, an appeal to the West African Court of Appeal lies as of right subject to an appellant fulfilling all the conditions of appeal imposed by the Court below as prescribed by the rules of Court.
3. It is competent to the High Court to entertain a motion for conditional leave to appeal in the case before it which has led up to this case stated.
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MAIN JUDGMENT
The following joint opinion was given: per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
There are two matters submitted for the opinion of this Court in this case stated. We will deal with them in their logical sequence.
The Assistant Judge of the Warri Division has ruled that “the Rules of Court published under the hands of Deane, C.J., and Hall, J., are inoperative and void in Nigeria” and submits to this Court the question of whether or not that ruling is correct.
The Rules in question were made in 1928 under the provisions of Article 12(1) of the West African Court of Appeal Order in Council, 1928, the material part of which then read:
“Two Judges of the Court of Appeal, of whom the President shall be one, may make . . . rules of Court. …”
Deane, C.J., was President, and Hall, J., one of the Judges. The Rules were therefore properly made and applied to the territories in which the Court then exercised jurisdiction. These, at that time, did not include Nigeria. But in 1934 the Order in Council was amended so as to extend the jurisdiction of the Court to Nigeria and at the same time Article 12(1) was amended so as to make the material part read:
“The President and the Chief Justice of Nigeria may make … Rules of Court.”
The question is whether upon the amendment of the Royal Order in Council so as to include Nigeria within the area of the jurisdiction of the Court, the Rules of the Court became automatically applicable to Nigeria.
We are of opinion that they did, and cannot subscribe to the proposition that with every alteration in the jurisdiction of a Court its Rules need to be remade before they can apply to the new area of jurisdiction. We are therefore of opinion that the answer to this question is that the ruling of the Assistant Judge is incorrect.
We now come to the second point:
The Assistant Judge has ruled that “a motion for conditional leave to appeal, in the judgment instanced, cannot be entertained by the High Court,” and submits to this Court the question of: whether or not that ruling is correct.
On this point it is true that, when a case of a would-be appellant comes within paragraph (a) of section 3 of the West African Court of Appeal Ordinance, 1933, and is not affected by either of the provisos to that section, an appeal to this Court lies as of right subject to an appellant fulfilling all the conditions of appeal imposed by the Court below as prescribed by the rules of Court (see section 7 of the Ordinance). And it is also true that the Rules do not state specifically the manner in which such appeals as of right shall be initiated.
But it is necessary for every would-be appellant before filing his appeal to bring the matter before the Court in some form or other because he has got to ascertain what conditions are imposed, and also although he may think his case comes within section 3(a) of the Ordinance so that he has an appeal as of right, he may be mistaken.
In the absence of a specific direction by Rule, the invariable practice of litigants, following the practice previously in force in the majority of the territories within which this Court exercises jurisdiction, has been to initiate proceedings by way of appeal by a motion applying for conditional leave to appeal. This practice has been accepted and approved by this Court, and we are of opinion that in pursuance of that practice it is competent to the High Court to entertain a motion for conditional leave to appeal in the case before it which has led up to this case stated.
We are therefore of opinion that the answer to this question also is that the ruling of the Assistant Judge is incorrect.
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