AKEREDOLU & ORS. v. AKINREMI & ORS.

Before Their Lordships

Between

AND

On the 10th day of July 1985, they filed a Notice of Appeal with four grounds of appeal of which three involved questions of law for which no leave is necessary. But the fourth ground raises issues other than law and therefore requires leave. On the same day when the Notice of Appeal was filed, that is, on the 10th July 1985, application for leave was filed in the lower Court but was not heard until 11th September 1985, when it was refused partly, but principally, because the three month as provided in S.31(2)(a) had expired, following a number of decisions of this court binding on the court below. Uche-Omo, J.C.A. in the lead ruling said:-
“I am of the view that this Court is bound by the clear and unequivocal decisions of the Supreme Court in Bowaje v. Adediwura (1976) 6 S.C. 143 and Amudipe v. Arijodi (1978) 2 L.R.N. 128 which clearly stipulate that an application for leave to appeal must be brought and heard within the three months after the judgment sought to be appealed against, provided by S.31(2) of the Supreme Court Act for an appeal to be filed to that Court. This specifically overruled the decision of the Federal Supreme Court in Babajide v. Aisa (1966) 1 ANLR.254 which allowed an application for leave to be filed outside the three month period. The decision in Unongo v. Aper Aku (1983) 2 SCNLR 332 being canvassed is not directly on the point. It does not interpret s.31(2) of the Supreme Court Act; and it is only by an application of some of the views therein canvassed that it is being suggested that the decisions in Bowaje and Amudipe (supra) should be set aside.”

……………………B……………………….

Following the Ruling, Chief Williams, S.A.N., and pursuant to the provisions of s.32(4) of the Supreme Court Act 1960 (hereinafter referred to as the Act) and of Order 6 r.2(1) of the Supreme Court Rules 1985, has applied for extension of time to seek leave (which he argued, is unnecessary) and for leave to appeal as provided in s.213(3) of the above Constitution of the Federation, 1979. The application was filed on 24th September 1985 and that was within the statutory period of fifteen days in sub-section 3 of s.31 of the Act. See the Ruling of this Court in Azeez Akeredolu & Ors. v. Lasisi Akinremi (1985) 2 N.W.L.R. 787. In paragraphs 2.3 to 2.6 in his brief in support of the application, Chief Williams contends that the decisions in Amudipe and Bowaji should be reconsidered. I cannot do better than reproduce them in full:-
“2.3 Effect of the Section as Construed by the Supreme Court: The subsection has been construed to mean that the applicant for leave to appeal must do three things within the prescribed period, namely
(a) give his notice of application for leave to appeal;
(b) obtain leave to appeal; and
(c) file his notice of appeal.
The first and third matters are within the control of the Appellant. However the second matter – obtaining leave to appeal- is mainly a matter within the control of the court. It is the court which fixes the date when the application is to be heard, and it is the prerogative of the court to say when it will decide the application. Furthermore, among the discretionary powers of the court is the power to grant adjournment in the interest of justice for further affidavits or for any other good cause. It follows that, as construed by this court, the subsection by implication enacts that an application for leave to appeal must be determined within the time prescribed by it. This is what raises the question of the constitutionality of the subsection.
2.4 Validity of the Subsection: The principle that it is not competent for the Legislature to prescribe the time within which a cause is to be heard and completed by a court of law was canvassed in Unongo v. Aper Aku (1983) 2 SCNLR 332. The Appellants will rely on the illuminating judgments delivered in that case. Particular reference may be made to the judgment of Bello J.S.C. at p.351 F to G where his Lordship said:
As the courts respect the right of the Legislature to control its internal affairs so the Constitution requires the Legislature to reciprocate in relation to the jurisdiction of the Courts. It may be observed that sections 73(1)(c), 111(1)(c), 233 and 239 of the Constitution empower the National Assembly or a House of Assembly, as the case may be, to make laws for regulating the practice and procedure of the Federal High Court and the High Court of a State. It seems to me, if in the purported exercise of the powers under these sections, the National Assembly makes any law which hampers, interferes with or fetters the jurisdiction of a court of law such law shall be void for being inconsistent with the provisions of the second limb of section 4(8).”

In his own judgment Obaseki J.S.C. said at p.359 E to F as follows:-
“One of the powers which has always been recognised as inherent in Courts which are protected in their existence, their powers, and jurisdiction by constitutional provisions, has been the right to control their order of business, and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognised as judicial in nature and as being a necessary appendage to a court organized to enforce rights and redress wrongs. The principles of a separation of powers prohibits the legislature not only from exercising judicial functions but also from unduly burdening or interfering with the judicial department in its exercise thereof. See Rottschaefer on Constitutional Law page 53.

Furthermore at p.360 lines A to B the learned Justice said:-
“The Nigerian courts, in my opinion, have been made by the 1979 Constitution to be the Judge of how they can best expedite judicial business before them. The court cannot be made or directed to sacrifice justice on the altar of speed. Justice is the end result of fair hearing and the length of time a fair hearing takes has to make allowance for the full and free exercise of the right of the parties to present their cases through their witnesses and counsel, and the obligation of the Judges to give full and effective consideration to the evidence led and the addresses of counsel if any, in their decisions. Any law that deprives the courts of their power and right to do justice to all who seek justice in the courts is unconstitutional and void. In my view, sections 129(3) and 140(2) also infringe the rights of fair hearing and the principles of justice enshrined under our 1979 Constitution and are, therefore, void.”

……………………C……………………….

Eso J.S.C. said, at p.362 B to C-
“Now to come back to the point in issue in this case what the provisions of the Electoral Act S.129(3) and S.140(2) tend to do is to inhibit the exercise of judicial functions, to wit, hearing a case within the time a court of law believes it can reasonably hear it, preparation of and delivering judgments in the case. It is the absolute prerogative of the Judiciary and they are matters within its absolute competence to determine the time the justice of a case demands hearing and determination of a case. Any provision that tends to interfere, in any form, with that power is unconstitutional. The only restraining factors as regards the period it shall deliver its judgments are provided for in the Constitution itself.

Finally, Nnamani J.S.C. said at p.365 A – B;
“The exercise of judicial functions and the organisation of judicial action, except in so far as the Constitution has made provisions on them, must be left to the courts. The period necessary to complete hearings in a case having regard to the nature of that case, the preparations and research necessary before judgment is given are all matters within judicial control with which the legislature cannot and ought not to interfere.”

The Appellants respectfully submit that if the Legislature had expressly enacted in Section 31(2)(a) of the Supreme Court Act that an application for leave to appeal from an interlocutory decision in civil proceedings shall be heard and determined within fourteen days, such an enactment would be declared unconstitutional and void. It follows that no such implied enactment can validly be read into the provisions of the subsection.
2.5 Inconsistency with Sec. 258 of the Constitution: The Appellants submit further that a law which requires the courts to hear and determine an application for leave to appeal from an interlocutory decision in a civil proceeding within two weeks must be void on the ground of inconsistency with Sec. 258 of the Constitution. This is because that Section clearly provides for a court to be at liberty to give its decision within a period of 3 months after the conclusion of the hearing of the case.
2.6 Effect of Invalidity: If the Section is invalid as construed by this Court, it is submitted that it means that the enactment must be treated as a nullity. In other words no time is prescribed within which to give notice of application within which to appeal. But a court must avoid declaring a statute invalid if it is possible to adopt some other construction which would avoid this result. The Appellant will accordingly submit that the Court ought to prefer the earlier construction given to the subsection in Babajide v. Aisa.

3-CONCLUSION
In conclusion, the Appellants respectfully invite the Supreme Court to reconsider its decision in Bowaje v. Adediwura and Amudipe v. Arijodi for the following (among other)
REASONS
1. Because, the Legislature has no power to prescribe the time within which a court of law is to hear and determine a cause.
2. Because, the construction given to Section 31(2)(a) of the Supreme Court Act by the Supreme Court in Amudipe v. Arijodi would result in the invalidity of the subsection.
3. Because, in the premises the Supreme Court, ought now to follow Babajide v. Aisa in construing Section 31(2) of the Supreme Court Act.”

The learned Senior advocate further expatiated in his oral argument that the construction of s.32(2) as reflected in Amudipe is not only inconsistent with Unongo’s case but that its application clearly conflicts with s.258 of the Constitution which allows a court three months after final addresses to deliver its decision. He cited a number of American and Indian decisions, more particularly; U.S. v. Rumely 97 L. Ed. 770 United State v. Walter 68 L. Ed.137, 140; State of Ohio v. Gne Kea berger 139 A.L.R. 728; National Labour Relation Board v. Johnes & Langlilin Steel Corporation 108 A.L.R. 13 59, p.1361. United States v. National Dairy Production Corporation 9th Ed. 2nd Series, p.561.

Mr. Ajayi S.A.N., in his reply, submits that having regard to the special circumstances of the case and issues raised, no constitutional question arises for determination in the present application and therefore no extension of time is needed. He does not see the need for extension of time for an entirely different reason. The appeal he points out, is against a final decision of the Court of Appeal and not against any interlocutory order. There is therefore no need for extension of time as the notice of appeal and the application for leave were both filed within the three month period. But leave of court to appeal is necessary only as regard the fourth ground of appeal, which involves question of fact or mixed law and fact.

……………………D……………………….

He argues that the application was made within time of fifteen days from the refusal of similar application to the court below. He contends that there is subsisting appeal on the three grounds involving questions of law.

The argument of Chief Williams for reconsideration of the principle in Amudipe’s case is formidable and a matter for serious consideration. But after a very careful consideration of the arguments of both counsel, I agree that no constitutional issue is raised or arises in the present application. As I have observed, this Court in its Ruling given the 22nd November 1985 has held that the Notice of Appeal and application for leave were filed within the statutory period of three months as provided in s.31(2) of the Supreme Court Act 1960. By filing this application within 15 days after refusal by the court below, there is no breach of sub-section 3 of s.31. Section 213(2)(a) of the Constitution confers a right of appeal on a person where the ground of appeal involves question of law alone in any civil or criminal proceedings. There is therefore, a subsisting appeal before this court in that three of the four grounds in the notice of appeal involves questions of law for which no leave is required. I am of the view that as regard the fourth ground, leave is necessary because the question involve issues other than one of law.

From the foregoing and in the special circumstances of this present application, I agree that it is unnecessary to decide whether Amudipe’s case was rightly decided or whether s.31(2)(a) of the 1960 Act conflicts with s.258(1) (or any of other provisions) of the Constitution. As Chief Williams rightly observes in his brief, the Unongo’s case was decided on the basis of the express provisions of sections 129(3) and 140(2) Electoral Act 1982 on the hand which directly conflict with sections 33(1) and 258(1) of the Constitution of the Federation 1979. There is nothing in S.31(2) of the 1960 Act ex facie which regulates or inhibits the exercise of the judicial powers or functions (of the Court) unlike the obnoxious provisions in the Electoral Act 1982. What distinguishes this case from Unongo’s is that it was the court itself and not the legislature which regulates and imposes the time limitation by its interpretation of s.31(2) of the Act to mean that the application for leave, the order granting leave and the filing of the Notice of Appeal must all be completed within the three month and fifteen day period, as the case may be. In Babajide’s case, it was the Court which decided that the Notice of Appeal could be filed any time after leave while in Amudipe’s case, it was the same court which gave a different interpretation to the same section. In Babajide’s the court held there was a hiatus in the legislation and therefore called on the legislature to look into the matter.
Order 2 Rule 28(5) of the Supreme Court Rules 1985 provides that-
“If leave is granted by the Court under these Rules or by the Court below the appellant shall file a Notice of Appeal.” It does not say within what time.

It may be useful to consider the view (obiter) of the court when confronted with a somewhat similar provisions of ss.64 and 66(1) Northern Region High Court Law, in Isaac Onuoha v. Commissioner of Police (1959) IV F.S.C. 23 at p.25 –
“the Solicitor-General invited us to consider the general effect of sections 64 and 66(1) of the High Court Law. It was his submission on the one hand that an appeal on a question of fact or sentence could not be “entered” within the meaning of section 66(1) until the leave of the High Court had been obtained under Section 64, and on the other hand that there was no time limit within which the leave of the High Court under section 64 must be applied for or granted. Where the period of thirty days was exceeded because of delays in the High Court for which the appellant was not responsible it would still be necessary, in the Solicitor- General’s submission, for the appellant to apply to this Court for an extension of time. We may take judicial notice of the fact that Judges of the High Court are frequently absent on tour from the stations where their registries are situated and that with no blame attaching to anyone it may take some days, or even weeks, before the decision of the High Court on an application for leave to appeal can be obtained. If the Solicitor-General’s submission is correct, we cannot regard the statutory provisions in question as calculated to further the due administration of justice. It is the duty of the Courts to administer the law as they find it, but where the matter is open to argument we should lean against any construction of a procedural law which was capable of involving an appellant in extra trouble or delay for reasons outside his own control. (Italics mine).

……………………E……………………….

The time to hear and determine an application or an appeal must vary depending on the nature of the question and the complexity of the issues involved. In this case, there is before the Court a Notice of Appeal on questions of law alone together with a ground on fact and mixed law and fact. The Notice was filed within the statutory period and I do not consider it tidy or convenient to require the appellant to file yet another separate notice of appeal for the fourth ground which requires leave. I would in the circumstances of the case deem sufficient, good and proper for the purpose of order 2 r 28(5) of the Supreme Court Rules 1985, the notice of appeal filed on 10th July 1985.

Having read and considered the argument in the briefs in support of the application, and after listening to both counsel on the merit of the application, I consider that this is a proper case to grant leave and therefore I will grant leave as prayed.

In the result, leave to appeal is granted. The Notice of Appeal already filed on 10th July 1985 by the applicants is deemed good and sufficient Notice of Appeal under Rule 28(5) of Order 2.

I will make no order for costs.

IRIKEFE, C.J.N. (Presiding): In this appeal, Chief Williams, S.A.N. has invited us to over-rule our decisions in Bowaje v. Adediwura (1976) 6 S.C. 143 and Amudipe v. Arijodi (1976) L.R.N. 128. In each case the matter in controversy was the interpretation of Section 31 of the Supreme Court Act (No.12 of 1960). It reads under sub-section (1) thus:-
“Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by 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.”

While Bowaje v. Adediwura is a decision of an ordinary panel of this Court, Amudipe v. Arijodi is a decision of the full court. It is the contention of learned counsel that both cases were wrongly decided and that our decision in Babajide v. Aisa & Anor. (1966) 1 All N.L.R. 254 is to be preferred. In Babajide v. Adisa & Anor. this court in interpreting (2(a)) above held that while it would be in order for an application for leave to appeal in an interlocutory situation to be made within 14 days of the decision being appealed against, there is no time limit within which the notice of appeal is to be filed after such leave had been granted.

In Bowaje v. Adediwura this court granted an extension of time when it transpired that the court’s delay in dealing with the application for leave to appeal led to the expiry of the period prescribed for filing notice and grounds of appeal.

In Amudipe v. Arijodi it was decided that the periods prescribed under 2(a) above had to be scrupulously observed, as not to do so, would confer an advantage on an appellant who needed to obtain leave before going on appeal, as against an appellant who had a right of appeal on grounds of law and as such, needed no leave.

In the instant appeal, the appellants have an inalienable right of appeal on three grounds which are matters of law and thus the appeal as we had held earlier on is properly pending before this court. There is thus, it seems to me, no occasion as of now, to go into the question of the constitutionality or otherwise of Section 31 of the Supreme Court Act (No. 12 of 1960).

……………………F……………………….

The case of Unongo cited by learned counsel is not very helpful. That was a case where the legislature imposed a time limitation within which an adjudication was to be concluded by the Court.

I agree with my learned brother Coker, J.S.C. whose lead judgment I had earlier read in draft that a case for over-ruling our two earlier decisions has not been made. I also would grant the leave sought to argue matters of mixed law and fact and hereby do so without an award of costs. No new notice of appeal is to be filed.

ESO, J.S.C.: The crux of the arguments of learned Senior Advocate Chief F.R.A. Williams (S.A.N.) in this case is the re-examination of the decision of this court in the cases of Bowaje v. Adediwura 1976 SC. 143 and Amudipe v. Arijodi (1978) 2 L.R.N. 128 wherein this Court, overruling its earlier decision in Babajide v. Aisa (1966) 1 All N.L.R. 254, laid down the principle where there is an application for leave to appeal, brought under s.31(2)(a) of the Supreme Court Act, 1960, that the application must not only be brought but also heard by the court within three months after the judgment sought to be appealled against has been given. This was the construction placed upon s.31(2) of the Supreme Court Act by this Court in those two cases. The subsection prescribes that where a person “desires to appeal to this Court, he shall give a notice of appeal or a notice of his application seeking leave to appeal as follows –
(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”.
If the application is made to the Court of Appeal in the first instance, any person who makes such an application for leave to appeal shall be allowed a further period of fifteen days from the date of hearing of the application by the Court of Appeal to make an application to the Supreme Court.

The complaint of Chief Williams is, and it is a well founded complaint, that the interpretation inhibits the Court in its function of administration of justice and further that such inhibition is contrary to the decision of this Court in Unongo and Aper Aku (1983) 2 S.C. N.L.R. 332 .

In the Unongo’s case, some specific provisions of the Electoral Act, that is, sections 129(3) and 140(2), were for interpretation and were declared unconstitutional, in some strong pronouncements by this Court, as an infringement of the rights of fair hearing and the principles of justice and also an unwarranted interference with the absolute prerogative of the Judiciary in matters within the competence of that institution. I stand by the principle that any enactment that goes or attempts to regulate the time within which the justice of a case should demand in the hearing and determination of a case is without doubt void.

The question I ask myself in this case is whether the application before us justifies determination of this issue or our pronouncements are being sought obiter.

As my learned brother Coker J.S.C., whose ruling I have read and with which I agree, has said, there is a valid appeal in this Court on the question of law. Three grounds of appeal which are matters of law justify this conclusion. What Chief Williams seeks is leave to appeal on one ground of fact in an appeal which is already properly before this Court. The subtle distinction is this:
If this Court has not been seised of this appeal which is before it as of right on questions of law, a fresh notice is necessary. In other words there is no appeal at all (whether on law or on fact) until leave is granted. But as it is, there is already an appeal. Technically the appeal on fact, which is sought, is a new appeal and technically there will be two appeals – one on law as of right; the other on fact with leave. Even if leave is refused, the appeal in the case on law stands. It is for this reason I will agree with my learned brother Coker J.S.C. that the notice of appeal filed on 10th July 1985 be deemed good and proper for the purpose of Order 2 Rule 28(5) of the Supreme Court Rules 1985 in which case the notice would be deemed to have been filed within time and would have escaped a consideration of the Bowaje v. Adediwura case and the Amudipe v. Arijodi case for the time being.

I will also grant leave as prayed in this application deemed to have been filed within time.

……………………G……………………….

NNAMANI, J.S.C.: I had a preview of the ruling just delivered by my learned brother, Coker, J.S.C. and I agree with his reasoning and conclusions. I have decided to make a concurring comment merely for purposes of emphasis.

Although the application of Chief Williams, learned Senior Advocate appearing for the applicants was for:-
(i) an extension of time within which to apply for leave to appeal from a judgment delivered by the Court of Appeal sitting in Ibadan dated the 10th of April, 1985 and
(ii) leave to appeal from the said judgment.
The main issue brought before the Constitutional Court was, as stated by Chief Williams in his brief of argument, “whether Section 31(2) of the Supreme Court Act is consistent with the Constitution of the Federal Republic of Nigeria on the hypothesis that the construction given to it by this Court in Bowaje v. Adediwura (supra) and Amudipe v. Arijodi (supra) is correct.”
That question certainly sought to raise a constitutional issue, although as I shall show, and as has been shown in the lead judgment, it did not arise on the face of the provisions of Section 31(2) of the Supreme Court, Act 1960, the statutory provision under consideration.

Section 31(2) of the Supreme Court Act, 1960 is in these terms:
(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal is –
(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”
Subsection 3 also provides that –
“where an application for leave to appeal is made in the first instance to the court below, a person making such application shall in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the hearing of the application by the court below, to make an application to the Supreme Court”

It would appear that in the two earlier decisions of Babajide v. Aisa (1966) 1 All N.L.R. 254 and Bowaji v. Adediwura (1976) 6 S.C. 143 this Court gave conflicting interpretation as to the proper meaning of Section 31(2)(a) of the Supreme Court Act set down above. While in the earlier case the Court held that in cases where leave had to be obtained to appeal from an interlocutory order application had to be made within 14 days with no time limit prescribed for giving of notice of appeal after leave had been obtained, in the latter case it was decided that where leave to appeal is required, the party must not only file his application for leave to appeal within the prescribed period, but must file the notice and grounds of appeal after having obtained leave, within the same period. This Court, sitting in full session in Amudipe v. Arijodi (1978) 2 L.R.N. 128 upheld Bowaji’s case. In effect, it meant that the appellant had to file his application for leave to appeal, obtain leave, and file his notice of appeal and grounds of appeal within the prescribed period of 14 days or 3 months as the case may be. Alexander, C.J.N. giving the judgment of the Court observed at p.131.
“We find ourselves unable to accept this submission and repeat that, on a clear interpretation of Section 31(2)(a) as applicable to the circumstances of this case, notice of appeal must, in any event , be given and filed within the period of three months prescribed by that section. Otherwise, we would arrive at the patently absurd position that an appellant who may appeal as of right has only three months to give notice of appeal while an appellant who must first obtain leave to appeal would ultimately enjoy the greater right of having six months to give notice of appeal. With this we cannot agree.”

Relying heavily on the decision of this Court in Unongo v. Aku (1983) 2 S.C.N.L.R. 322, Chief Williams contended that the interpretation given by this Court to Section 31(2)(a) in Amudipe’s case supra has in effect brought in a dictation to the Courts as to the period within which the application for leave to appeal must be disposed of.

……………………H……………………….

Furthermore, if the Courts are thus restricted to 14 days for dealing with an application for leave to appeal in an interlocutory decision, this would be contrary to Section 258 of the Constitution which has prescribed 3 months for judgment after final addresses. In Unongo’s case supra, this Court was concerned with the constitutionality of Sections 129(3) and 140(2) of the Electoral Act, 1982 which prescribed periods of 30 days for the disposal of election petitions filed in the High Court. It was unanimously held that those sections were unconstitutional, null and void as it was not for the legislature to prescribe periods for the judiciary in the execution of its duty. Viewed from this perspective, Chief Williams’ points are quite interesting and do evoke my sympathy. Regrettably though, the situation in hand is certainly not similar to that in Unongo’s case. There is nothing on the face of Section 31(2)(a) which seeks to dictate to the judiciary the time within which it must complete its function. It is claimed that result can only come by interpretation. I am therefore of the view too that there is no constitutional issue before this Court. It would in my view follow that this is not a proper modus by which the decision in Amudipe’s case can be challenged.

Furthermore, in the instant suit, the judgment of the Court of Appeal was delivered on 10th April 1985. The appellants appealed to this Court on 10th July, 1985 which, by a decision of this Court is within time. The applicant’s application for leave to appeal was filed on the same 10th July, 1985 which is by the decision of this Court is within time. When the Court of Appeal refused it on 11th September, 1985 on the grounds that they lacked jurisdiction on the authority of Amudipe, the applicant, pursuant to Section 31(3) of the Supreme Court Act, 1960, filed an application to this Court on 24th September, 1985. In my view, this is not therefore an appropriate occasion to challenge the decision in Amudipe. It has long been established that this Court will not render an advisory opinion nor will it deal with a matter which is speculative or academic. The Court deals with live issues.
It was contended that the applicant did not need an extension of time to appeal since he had filed his notice of appeal within time. That notice of appeal contained 4 grounds of appeal, three of which were grounds of law. The view was therefore expressed that since there was a subsisting appeal, the applicant may need leave to argue the 4th ground of appeal Which is of fact or mixed law and fact pursuant to Section 213(3) of the Constitution of the Federal Republic of NIGERIA 1979, but that he did not need extension of time as there was no need to file another notice of appeal. I would say briefly that I am in disagreement with that contention. Subsection (3) of Section 213 of the Constitution provides as follows:-
“Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Federal Court of Appeal to the Supreme Court with leave of the Federal Court of Appeal or the Supreme Court.”
From a close examination of these provisions, it seems to me that what is implied here is another right of appeal subject to obtaining leave. If an appellant is out of time he will technically require extension of time. An opportunity for the review of Amudipe will no doubt occur as I consider the issues raised by Chief Williams quite interesting. Whether the decision should stand does not call for decision here. At least on the level of policy, a review cannot fail to note the observation made by the full Court in Amudipe to which reference was made above. Nor will it lose sight of the fact that problems posed by the decision in Amudipe only occur once in a while. In most cases the Court of Appeal will grant or refuse leave to appeal on the merits of the application. In the cases where the Court declines jurisdiction following Amudipe, the applicant can come to the Supreme Court within 15 days from the date of such a decision as he is entitled to do by virtue of Section 31(3) of the Supreme Court Act, 1960. Such a review will nevertheless take note of the all important fact that in Amudipe’s case what was being challenged was a notice of appeal filed outside the prescribed 3 months although the application for leave and grant of leave to appeal had been made and obtained within 3 months.

For these reasons, and the more detailed reasons given in the lead ruling, I would also dismiss the constitutional point raised, but grant the application for leave to appeal. I also make no order as to costs.

UWAIS, J.S.C.: I have perused in draft the ruling read by my learned brother Coker, J.S.C. I entirely agree with the ruling.
It is not in dispute that in this case there is a subsisting appeal on grounds of law which has been properly filed by the applicants. What they are seeking to do now is to obtain leave in order to appeal on ground other than that of law. The question then is; is it necessary in view of the provisions of Section 213(3) of the Constitution read together with Section 31 of the Supreme Court Act, 1960, for the applicants to – (1) ask for extension of time within which to apply for leave to appeal and (2) ask for leave to appeal? I do not think that it is necessary for the applicants to ask for the extension of time within which to apply for leave to appeal because there is already a valid appeal on point of law before the Court. If the applicants want to add to the grounds of appeal and such additional ground or grounds raise question of fact or mixed law and fact they need only to apply in accordance with Order 8 Rule 4 of the Supreme Court Rules, 1985, which provides that notice of appeal may be amended at any time. The rule reads-
“A notice of appeal……….may be amended by or with the leave of the Court at any time.”

……………………I……………………….

But in making such application it is imperative for the applicants to indicate that the purpose of the application is not merely to add to the grounds of appeal, but essentially to obtain the leave of the Court to appeal under Section 213 subsection (3) of the Constitution.

Although Order 6 Rule 4 of the Supreme Court Rules, 1985 provides “Where leave (to appeal) has been granted the appellant shall file his notice of appeal.”

I think, in the circumstances of the present case, it will be somewhat too technical, if not superfluous, for the applicants to have to file another notice of appeal. This in effect will amount to appealing twice in one and same case and before the same Court. The notice of appeal containing the grounds of law should therefore suffice. I find support for this view in Order 2 Rule 30 of the Supreme Court Rules, 1985 which states –
“An appeal shall be deemed to have been brought once the notice of appeal has been filed.”

With regard to the argument advanced by Chief Williams, learned Senior Advocate, for the applicants on the constitutional validity of the decisions of this Court in Bowaje v. Adediwura (1976) 6 S.C. 143 and Amudipe v. Arijodi, (1978) 2 L.R.N. 128 vis-a-vis our later decision in Paul Unongo v. Aper Aku (1983) 2 SCLRN 332; though convincing; I do not think that the the issues directly involved in this application, call for a review of the decisions now.

For these and the reasons contained in the ruling of my learned brother Coker, J.S.C., I too will grant leave to the applicants to appeal as prayed. The ground or grounds of appeal to be filed on point of fact or mixed law and fact are deemed to have been filed with the notice of appeal already before the Court. I also agree that there should be no order as to costs.

KARIBI-WHYTE, J.S.C.: I have read the ruling of my learned brother D.O. Coker, J.S.C. in this application. I agree with the conclusion that the application be granted, and without an award of costs to the respondents. I wish only to comment on the invitation to this court to overrule its previous decisions in Amudipe v. Arijodi (1978) 2 L.R.N. 128 and Bowaje v. Adediwura (1976) 6SC. 143 as unconstitutional and in conflict with Section 258(1) of the Constitution 1979 and the judgment of this court in Unongo v. Aper Aku (1983) 2 SCNLR. 332.

I should state at once, that the application before this court is (i) for extension of time within which to apply for leave to appeal (if necessary) and
(ii) for leave to appeal to this Court from the decision of the Court of Appeal delivered on the 10th day of April, 1985 on ground other than ground of law.

The facts relevant for my consideration of the submission of Chief Williams S.A.N. inviting us to overrule the previous decisions of this court already indicated, were that appellants who were plaintiffs in the trial Court, appealed to the Court of Appeal against the judgment of the High Court dated 10th April, 1985 dismissing their claim for a declaration of title, damages for trespass and for an order for injunction. On the 10th July 1985, they filed a notice of appeal, with four grounds of appeal, of which three were ground of law, and the fourth raised issues other than law. The application for leave to appeal filed in the High Court on the 10th July 1985 was not heard till 11th September, when the court refused the application. On appeal to the Court of Appeal Uche Omo J.C.A. said,
“I am of the view that this court is bound by the clear and unequivocal decisions of the Supreme Court in Bowaje v. Adediwura (1976) 6 SC. 143 and Amudipe v. Arijodi (1978) 2 L.R.N. 128 which clearly stipulate that an application for leave to appeal must be brought and heard within the three months after the judgment sought to be appealed against, provided by section 31(2) of the Supreme Court Act for an appeal to be filed to that court. This specifically overruled the decision of the Federal Supreme Court in Babajide v. Aisa (1966) 1 ANLR. 254 which allowed an application for leave to be filed outside the three months period.

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The decision in Unongo v. Aper Aku (1983) 2 SCNLR. 332 being canvassed is not directly on the point. It does not interpret S.31(2) of the Supreme Court Act, and it is only by an application of some of the views therein canvassed that it is being suggested that the decision in Bowaje and Amudipe (supra) should be set aside.”

The real issue for determination in this appeal is whether an appellant has satisfied the provisions of Section 31(2) of the Supreme Court Act 1960, and clearly not whether the provisions of Section (31)(2) of the Supreme Court Act, 1960 is in conflict with any provisions of the Constitution 1979.

The giving of notice of appeal and fulfilling the conditions prescribed are provided by the Supreme Court Act 1960, and the Rules of court made thereunder. The provision in the Constitution is concerned in this regard with the question of the vesting of the right to appeal. The relevant part of section 213(1) (2) (3) of the constitution 1979 is as follows-
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 Federal Court of Appeal.
2. An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases –
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Federal Court of Appeal
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Federal Court of Appeal or in which the Federal Court of Appeal has affirmed a sentence of death imposed by any other court;
(e) decisions on any question whether any person has been validly elected to any office under this Constitution or to the membership of any legislative house or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant; and
(f) such other cases as may be prescribed by any law in force in any State.
3. Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court.

On the other hand Section 31(2) (a)(b) of the Supreme Court Act 1960 which spells out the time for appealing provides as follows –
(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.

Even a cursory reading of these two Sections discloses that the observance of their provision is primarily directed at the litigant who would fail if he does not enjoy any right under s.213 of the Constitution 1979, and even if he enjoyed such right would fail unless he has fulfilled the conditions prescribed under section 31(2) of the Supreme Court Act 1960. I do not think it can rightly be said that section 31 of the Supreme Court Act 1960 for limiting the time to appeal, is in conflict with section 213 of the Constitution 1979, because section 213(f) would seem to have anticipated this situation when it provided after section 213(2)(a) – (e) as follows –
“(f) such other cases as may be prescribed by any law in force in any state,”
I concede that this paragraph may more appropriately refer to substantive right of appeal rather than a provision limiting the exercise of the right of appeal, it does not in my opinion exclude such cases. Accordingly S.31(2) coming within the purview of the exercise of the right of appeal, and is an existing law under section 274 of the Constitution 1979 would in my opinion not be affected.”

Chief William’s reason for inviting us to overrule the decisions in Bowaje v. Adediwura (supra) and Amudipe v. Arijodi (supra) is because in his view the interpretations given to s.31(2) of the Supreme Court Act 1960 in these cases were different from that in the earlier decision of the same court in Babajide v. Aisa. He contends that these later decisions are inconsistent with section 258 of the Constitution. It is pertinent to observe that all these cases were decided before the constitution of 1979 and under the 1963 Constitution. They all involved construction of S.31 of the Supreme Court Act above.

Taking Babajide v. Aisa (supra), first where leave to appeal was given to appellant on the 9th January 1963, but he filed his notice of appeal on the 28th January 1963, more than fourteen days from the date leave was given. The appeal was against an interlocutory decision. It was submitted that section 31(2)(a) of the Supreme Court Act required notice to be given within fourteen days of obtaining leave to appeal. The reply of the appellant which was accepted by the Supreme Court was that whilst Section 31(2)(a) prescribed that application for leave to appeal against an interlocutory order had to be made within fourteen days, no time limit was prescribed for giving notice of appeal after leave had been obtained. The Court said,
“We are inclined to the view that Mr. Agbaje’s submissions accurately construe section 31 of the Act; they reveal a hiatus in the law which we hope will receive the attention of the law-making authority.”
The appeal was allowed.

The view of the Supreme Court was that a legislative enactment was necessary to cure the omission detected in the provisions of section 31(2)(a). The omission left an appellant at large as to when, after obtaining leave to appeal, he filed his notice of appeal.

About ten years after this decisions this Court had the opportunity to consider the opinion expressed therein. But the judgment was not cited to this court in Bowaje v. Adediwura (1976) 6 Sc. 143. Here it was an application for an order by the Appellant, who is the Plaintiff for extension of time within which formally to file the notice and grounds of appeal against the decision of the Western State Court of Appeal and for leave to argue additional grounds of appeal. The Court of Appeal having already granted appellant leave to appeal to this court on the 4th June, 1973, on the authority of Babajide v. Adisa, the application for an order for extension of time within which to file notice and grounds of appeal will seem to be unnecessary. It was common ground relying on the provision of S.31(2) Supreme Court Act 1960, that the notice and grounds of appeal were filed out of time. There was no doubt in this case the judgment was delivered on the 2nd March, 1973, and the application for leave to appeal was made and granted on the 15th May, 1973. This was in compliance with S.31(2) (a) of the Supreme Court Act 1960. The application to file notice and grounds of appeal was granted on the 4th June 1973, two days after expiration of the three months allowed in S.31(2)(a). The Supreme Court attributed the effective cause of the delay to the court below for granting the application outside the three months prescribed and said,
“Under that circumstance, even if Mr. Adeyemi had filed the notice and grounds of appeal immediately thereafter, as he was instructed to do by counsel for the appellant/plaintiff, the appellant/plaintiff would have been out of time.”
The Supreme Court exercised its discretion and granted the application even though it was made out of time, most probably because of the negligence and inadvertence of counsel who held brief for counsel in the court below, and also the court below which granted the leave two days after expiration of the three months prescribed. But in construing the provision of section 31(2)(a) of the Supreme Court Act 1960, the Court said,
“Under the provisions of section 31(2)(a) of the Supreme Court Act, in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the subsection but must also file his notice and grounds of appeal after having obtained the leave within the same period”.

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It seems clear from this construction that the court can only accept an application for leave to appeal and notice and grounds made and granted within the period prescribed in section 31(2)(a)(b) of the Supreme Court Act 1960. It is probably the aspect of granting the application by the court which concerns the court and possibly section 258(1) of the Constitution 1979. But it is not a provision of section 31, but arose from the construction of that section by the court.

Amudipe v. Arijodi (1978) 2 L.R.N. 128, considered all the earlier decisions in its construction of S.31(2)(a) of the Supreme Court Act 1960. The judgment arose from a preliminary objection before this court, seeking to dismiss the appeal in limine on the grounds that (i) the notice of appeal was not filed within time as provided by S.31 of the Supreme Court Act 1960(ii) The notice of appeal was not signed by the appellant herself as required by the Rules of the Supreme Court. Only the first ground is relevant here. In this case final decision was delivered on the 13th December, 1974 and notice of appeal was given on the 3rd April 1975, which was about three weeks more than the three months prescribed. But the leave to appeal to the Supreme Court was applied for on the 28th January 1975, and heard on the 3rd March, 1975, within the three months prescribed. Consequently, although leave to appeal was made and granted within time, the notice and grounds of appeal were filed out of time. In upholding the preliminary objection, and clearly rejecting Babajide v. Aisa the Court said, at p.131:
“We do not agree that no time limit is prescribed in S.31 for giving of filing a notice of appeal after leave has been granted or that there is a hiatus in the law as stated in Babajide’s case. On the contrary, we hold the view that S.31 prescribes a period of three months for giving or filing a notice of appeal in any event.”

In reply to a further submission that the word “or” in S.31(2) be read disjunctively and if so read provides for a separate period of three months for giving notice of appeal, thereby cumulatively allowing for a total period of six months to give notice where leave to appeal was first obtained.

The court said, at p.131-
” … on a clear interpretation of section 31(2)(a) as applicable to the circumstances of this case, notice of appeal must, in any event, be given and filed within the period of three months prescribed by that section. Otherwise, we would arrive at the patently absurd position that an appellant who may appeal as of right has only three months to give notice of appeal while an appellant who must first obtain leave of appeal would ultimately enjoy the greater right of having six months to give notice of appeal with this we cannot agree.”

Apart from the oblique reference to the part played by the court in Bowaje v. Adediwura, there appears to be nothing to show that the observance of the provision of S.31(2)(a) concerns the court, at any stage. Whilst I am not concerned with the construction of S.31(2)(a), I do not subscribe to the interpretation of the provision in Amudipe v. Arijodi, which enables an appellant appealing with leave to do so within a six months period and appellant without leave a period of three months. The provision cannot be so construed. To allow an applicant who seeks leave to do so within the period prescribed and to give notice of appeal thereafter within the prescribed period on the obtaining of leave is certainly not equivalent to twice the period prescribed.

Unongo v. Aper Aku & Ors. (1983) 11 S.C. 129, is different and concerns the effect of the provision of section 129(3) and 140(2) of the Electoral Act 1982 on the provisions of S.258(1) and Section 33(1) of the Constitution 1979. In this case the Electoral Act 1982 provided as follows-
“Section 129(3) Proceedings before a High Court in the case of a petition in respect of the office of President or Vice-President, Governor or Deputy Governor or in respect of any of the legislative Houses shall be completed not later than 30 days from the date of the election concerned.”
This section is self-explanatory and directs the court in mandatory language as to the time for completion of a petition before the court.
Section 140(2) is mere pervasive, all embracing and “A petition filed before the High Court in respect of any election shall be disposed of by the Court not later than 30 days from the date of such election and any election petition not so disposed of shall be time barred and such petition shall be deemed null and void.”
It is obvious from the express provisions of these sections that there was an undisguised infringement of the all impedent fundamental principle of separation of powers, the exercise of functions , and the provision relating to fair hearing entrenched in the Constitution of 1979. In order to complete the cycle it is pertinent to refer to sections 33(1) and 258(1) of the Constitution 1979. Section 33(1) provides-
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

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Section 258(1) declares
“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

The combined effect of the two sections is to enable justice to be done to parties to a dispute within a minimum delay and to preserve the judicial independence and detachment of the courts untrammelled by the action of any other principal department of the Constitution. An appellant is entitled to fair hearing within a reasonable time, and the court is entitled to its independence in the conduct of the hearing of the matter before it. These were the issues raised in Unongo v. Aper Aku & Ors. The Court of Appeal in that case after allowing the appeal of the Appellant against the judgment of the High Court, was precluded by the provisions of section 129(3) and 140(2) of the Electoral Act 1982 from making a consequential order. This court therefore declared these provisions in conflict with sections 33(1) and S.258(1) of the Constitution 1979, unconstitutional and void.

It seems to me that there is nothing in section 31(2)(a) of the Supreme Court which inhibits the exercise by the Court of its judicial functions. The periods prescribed in the section are for giving notice of appeal, or notice of application for leave to appeal. This is clearly different from the provisions of sections 129(3) and 140(2) of the Electoral Act 1982, which prescribed the period within which an election petition must be finally determined. There is therefore no conflict between the words of section 31(2)(a) of the Supreme Court Act 1960, and those of sections 258(1) of the Constitution 1979.

In the appeal before us, there is before the Court a Notice of Appeal on questions of law alone, which by virtue of S.213(I) requires no leave. There are also grounds of appeal on facts, and mixed law and facts. The notice of appeal was filed within the prescribed period. I do not think it is necessary to require appellant to file a separate notice of appeal for the fourth ground of appeal which requires leave. In the circumstances, I think the notice of appeal filed on the 10th July 1985 shall be deemed sufficient, good and proper notice for the purpose of Order 2 R. 28(5) of the Supreme Court Rules 1985.

I agree that this is a proper case to grant leave and the leave is granted as prayed. I make no order as to costs.

OPUTA, J.S.C.: I have had a preview in draft of the lead Ruling just delivered by my learned brother Coker, J .S.C. I am in complete agreement with him that this application does not directly raise a constitutional issue. The main issue here is leave to appeal on grounds other than those involving questions of law alone.

The application before the Court is for:-
“1. An extension of time within which to make the application in prayer 2 below (if, but only if the Court should decide that it can only entertain the said prayer after granting an extension of time with which to make the application in prayer 2 below).
2. For leave to appeal to this Honourable Court from decision of the Court of Appeal delivered on the 10th day of April 1985 on grounds other than grounds of law.”
An application for extension of time implicitly and I may even add explicitly presupposes that time had expired. Since this is an appeal in a civil case the prescribed time for giving
(i) Notice of Appeal, or
(ii) Notice of application for leave to appeal.
is by the mandatory provision of Section 31(2)(a) of the Supreme Court Act No. 12 of 1960, 3 months in an appeal against a final decision (we are dealing here with a final decision). It is to be observed that Section 31(1) of the Supreme Court Act mentioned above draws the necessary distinction between Notice to appeal and Notice of leave to appeal. It is the interpretation of this distinction that has created some of the problems the court has to contend with in this application.

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By Section 213(2)(a) of the 1979 Constitution, an appellant can appeal as of right where his ground or grounds of appeal involves/involve questions of law alone. In such a case, he is still bound to file his notice and ground/grounds of appeal within the time specified and prescribed in Section 31(2)(a) of the Supreme Court Act No. 12 of 1960 (14 days in appeals from an interlocutory decision and 3 months in an appeal against a final decision). It may happen that the only ground of appeal contemplated is a ground either of fact alone or of mixed law and fact. In this second instance, Section 213(3) of the 1979 Constitution confers jurisdiction on the Supreme Court to hear such appeal only after leave to appeal had been obtained either from the Court of Appeal or from the Supreme Court. Apart from the issue of jurisdiction, then comes the procedure which again is dictated by Section 31(2)(a) of the Supreme Court Act of 1960. In plain language an appellant appealing on facts or mixed law and fact will have to file his application for leave to appeal and his ground/grounds of appeal within three months in appeals against a final decision and 14 days in interlocutory appeals. I have to observe that Section 31 of the Supreme Court Act 1960 dealing with “Time for appealing” confined itself to “notice of appeal”. That section did not mention anything about ground or grounds of appeal. But it is a notorious fact that a bare notice of appeal without any ground or grounds of appeal is valueless, impotent and incompetent – see Section 213(2) and (3) of the 1979 Constitution. There is a third category of case namely where the appellant appeals on grounds of law (as of right) and also at the same time on grounds of fact or mixed law and fact. This is exactly what happened in this case on appeal. It is this third category that has been the fertile ground for legal argumentation and “conflicting” decisions.

The question then arises when an appellant is appealing both on law and facts or mixed law and facts, will he in actual practice file two Notices of Appeal or will he file One Notice of Appeal and then apply for leave to cover the grounds requiring leave? This really is the issue calling for a decision in this application.

When this same motion first came up for hearing on the 4th day of November 1985, Mr. Ajayi, S.A.N. for the Respondent raised a Preliminary Objection. He then submitted that the Notice of Appeal filed on 10th July 1985 against the judgment of the Court of Appeal delivered on the 10th day of April 1985 was filed out of time and therefore, so ran the argument, the Appeal was filed out time and therefore again no appeal was pending before the court. A full Court of seven justices including the Chief Justice of Nigeria unanimously held that the appeal was not filed out of time; that it was filed within the statutory period of 3 months and that it was therefore competent and pending see (1985) 2 NWLR 787. It is in this very same appeal that the application “for extension of time within which to apply for leave to appeal to this Honourable Court from the decision of the Court of Appeal delivered on the 10th day of April 1985 on grounds other than grounds of law” is now made. One thus finds oneself either arguing in a circle, blowing hot and cold or else approbating and reprobating. In one breath we say the appeal is competent and in another breath we say an extension of time is needed to make the appeal competent.

In my humble view there is a way out. Like Alexander the Great the easiest way is to cut this gordian Knot rather than trying to unite it. And the most effective weapon to be used in the process is the word “deemed”. Generally speaking when you talk of a thing being “deemed” to be something, you do not mean to say that it is that which it is deemed to be. It is rather an admission that it is not what it is to be deemed” to be, and that, notwithstanding, it is not that particular thing, nevertheless it is still “deemed” to be that thing. The word “deemed” is used a great deal in modern legislation. There is no reason why it should not be used in the interpretation of statutes in circumstances like this to avoid unnecessary duplication, delay or even absurdity. Sometimes the word “deemed” is used to impose for the purposes of a statute, an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible. Having thus explored the various uses into which the word “deemed” can be put, it is my humble view that where an appellant files a notice of appeal accompanied by grounds of appeal on law and grounds of appeal on facts or mixed law and facts, within time, he may apply for leave to argue grounds of fact or mixed law and fact and the original Notice of Appeal will then be deemed to be a notice filed also for those grounds requiring leave. There is no doubt that when there is an appeal on law and on facts strictly speaking each is a separate appeal requiring its own notice and grounds. That is in theory. But in fact and in practice it will look a bit awkward for one appellant to file 2 Notices of Appeal and two sets of grounds of Appeal in respect of the same appeal. One Notice and the grounds of law and mixed law and fact or grounds on pure fact may all be filed. Since the grounds of appeal on law do not require leave, an application for leave to cover the other grounds will then be deemed to be supported by the Notice of Appeal already filed.

If this approach is adopted, then it will be superfluous in this case to revisit Bowaje v. Adediwura (1976) 6 S.C. 146 or Amudipe v. Arijodi (1978) 2 L.R.N. 128 let alone Unongo v. Aper Aku & Anor. (1983) 2 S.C. N.L.R. 332. The question then arises. Is there really a constitutional issue raised by the Applicant’s Motion? In Unongo’s case supra the Court had to decide on the constitutionality of Sections 119(4), 135, 139(1), 132 and 140(2) of the Electoral Act 1982. The Court declared these Sections contrary to Sections 4(8),258, and 33(1) of the 1979 Constitution and therefore unconstitutional and void. A further reason was that-those sections constituted unwarranted interference with the judicial powers of the Courts guaranteed by Section 6 of the 1979 Constitution. Chief Williams, S.A.N. has not tarred Section 31(2) of the Supreme Court Act 1960 with the same brush. No. Rather he is complaining about the interpretation given to that Section in Bowaje’s case supra which was followed in Amudipe’s case supra. It is possible Amudipe was wrongly decided (I am not going to venture an opinion one way or another here). If that is so then in a proper case, Amudipe may be reviewed. It is one thing to allege that a section of a statute was not properly interpreted. It is an entirely different thing to say that the section itself is unconstitutional. In Unungo’s case supra, the constitutionality of some sections of the Electoral Act 1982 was the main issue. In this case the constitutionality of S.31(2)(a) of the Supreme Court Act 1960 is not the centre of the controversy. Rather it is the construction put on that section by certain decisions of this court – (Bowaje and Amudipe) that is being attacked. I think the Court can comfortably afford to wait until a proper challenge and a frontal attack is made directly against Amudipe v. Arijodi supra rather than dissipate valuable energy on this flanking movement. This is not to say that the argument of Chief Williams, both in his brief and orally in elaboration are not formidable. They are. But the issue has not arisen. I am inclined to agree with Mr. Ajayi, S.A.N. that having regard to the facts and special circumstances of this case, no constitutional question has arisen for determination. Section 31 of the Supreme Court Act 1960 is really directed to an appellant and not to the Court. It does not interfere in any way with the judicial powers of the Court. It does not specify when a Court must conclude the hearing of a case or an appeal as the Electoral Act did in Unungo’s case.

In the final result, the Notice of Appeal already filed is now deemed to be a proper Notice of Appeal on issues of fact or mixed law and fact. Leave is also granted as prayed. I will make no Orders as to costs.

Leave to Appeal Granted.

Appearances

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