AGBAJE AND ORS. V. AGBOLUAJE AND ORS.

• Pages: 15-19

AGBAJE AND ORS. V. AGBOLUAJE AND ORS.

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The short constitutional point therefore that has to be determined here is whether

the provision 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

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section 98(6) words that are not there. The Act makes specific provision for ap-

peal to the Supreme Court and we think that the words should be given their natu-

ral 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

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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. We do not consider it necessary, as

was submitted to us, for the legislation to state specifically that the appeal shall be

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as of right, because'a provision enabling an appeal to be brought should be read

as being "as of right" unless the contrary is stated, as the granting of the right of

appeal where it would not otherwise exist implies of itself in our view that it shall

be exercised without further fetter unless the legislation states to the contrary.

There was therefore no need to obtain leave to appeal here as it lies as of right,

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and the preliminary objection is accordingly dismissed with 30 guineas costs to

the objectors/appellants.

Preliminary objection dismissed.

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AGBAJE AND ORS. V. AGBOLUAJE AND ORS.

30 ALHAJI AHMED AGBAJE AND OTHERS

V

CHIEF SALAMI AGBOLUAJE AND OTHERS

SUIT

SUPREME COURT OF NIGERIA

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ADEMOLA,

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C.J.N.

MADARIKAN,

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J.S.C.

UDOMA,

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J.S.C.

20th February, 1970.

APPELLANTS

RESPONDENTS

NO. SC 236/1967

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Practice and Procedure - Declaration - That revised constitution of the Islamic

Missionary Society 1966 was void - Undisputed averment that the amendments

complained of were popular - If a proper case for a grant of the declaration

sought - Principles upon which declarations are granted.

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ISSUE:

1. Under what circumstances should a court grant a declaration sought by a party?

FACTS:

This was an appeal against the judgment of a High Court in which the Appel-

lants as plaintiffs had sought-

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(i) A declaration that the Constitution of the Islamic Missionary Society is as

contained in the Printed Revised Edition of 1949 and not as in the Reprinted

Edition of 1966.

(ii) An injunction to restrain the Defendants from conducting the affairs of the

Society on the basis of the alleged reprinted Edition of 1966.