GAMIOBA & ORS. V. ESEZI II

• Pages: 238-242

238



NIGERIAN SUPREME COURT CASES

[1961] N.S.C.C.

GAMIOBA & ORS V. ESEZI II & ORS.



5

OTUGOR GAMIOBA & ORS

V

ESEZI II, the Onodjie

of Okpe and Ors

FEDERAL SUPREME COURT.

ADEMOLA,



C.J.F.

MBANEFO,



C.J.E.R.

BRETT,



F.J.

UNSWORTH,



F.J.

TAYLOR,



F.J.

9th October, 1961.

APPELLANTS

RESPONDENTS

SUIT NO. FSC 120/1961

10

15

20

Constitutional Law - Reference to the Supreme Court - Nigeria (Constitution)

Order in Council, 1960, Second Schedule, Constitution of the Federation, s.108

- Transfer of proceedings for hearing and determination, not a Reference under

section 108 of the Constitution of the Federation - Form of Reference - Federal



Supreme Court Rules, 1961 (L.N. 96 of 1961), Order VI - Reference question



25

- Must genuinely arise in the proceedings - Must be substantial - Must be

necessary to the determination of the proceedings - Stage of proceedings when

question should be referred - Premature reference - Consent of parties to

have question referred not sufficient to ground Order of Reference - High



Court must decide whether the question is genuine, substantial and necessary



30

before making the Order of Reference - Party seeking Reference must show

infringement of legal rights, or imminent danger thereof in consequence of

questioned Law - Sufficiency of interest.



Courts - High Court - Jurisdiction - Cannot transfer entire case for hearing and



35

determination under section 108 of the Constitution of the Federation.

Words and Phrases - "Substantial Question of Law".

ISSUES:



40

1.

Whether the High Court has power to transfer a cause to the Supreme Court

for hearing and determination.

2.

Whether a reference to the Supreme Court under section 108 of the Constitution

of the Federation is premature, if there remains an issue, undecided by the High



Court, which could finally determine the proceedings, without recourse to the



45

Constitutional question referred.

3.

What conditions must be satisfied before a question of constitutional

interpretation can be referred to the Supreme Court.

4.

Whether agreement between the parties that a constitutional question should be



referred to the Supreme Court relieves the High Court of its duty independently



50

to decide whether the question genuinely arises in proceedings and involves a

substandard point of law.