IGE V. OBIWALE

• Pages: 267-270

IGE

V.

OBIWALE



267

IGE V. OBIWALE

5

KARIMU IGE

V

10 ABRAHAM OBIWALE

SUPREME COURT OF NIGERIA

BRETT,



J.S.C.

LEWIS,



J.S.C.

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MADARIKAN,

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J.S.C.

1st December, 1967

APPELLANT

RESPONDENT

SUIT NO. SC 538/1965

Appeals - High Court hearing appeal without jurisdiction - effect - jurisdiction

to transfer appeal to proper court - None when High Court itself has no

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jurisdiction over the appeal - Appeal to Supreme Court, civil - grounds of

appeal, on want of jurisdiction, filed without previously appealing against High

Court's interlocutory decision on the point

Legislation - Customary Court Law (W.N.) section 47; Customary' Courts

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(Amendment) Law 1964 s.17, High Court Law, section 31 - Supreme Court

Rules, 1961, 0.7, r.25.

ISSUES:

1.

Whether a right of appeal to a particular court with respect to existing

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proceedings is affected by a subsequent legislation which provides instead for

appeals to another court.

2.

Whether a standing interlocutory judgment or order from which there has been

no appeal can bar or prejudice an appeal court from giving a decision upon

the appeal.

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3. Whether a High Court itself having no jurisdiction over an appeal has jurisdiction

to transfer the appeal to the proper court.

FACTS:

The plaintiff (respondent) claimed for a declaration of title to a piece of land

in the Customary Court. The Court in its judgment dismissed the claim and dis-

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posed of the counter claim with costs to the defendant. On the date of this judg-

ment an appeal lay therefrom to the Magistrate's court by virtue of section 47 of

the Customary Court Law. Subsequently the Customary Court (Amendment) Law,

1964 came into force and provided instead for appeals to the High Court.

The plaintiff gave notice of appeal to the High Court and a separate applica-

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Lion for leave to appeal out of time. Counsel to the defendant submitted that the

High Court had no jurisdiction to entertain the appeal but the High Court overruled

him, granted the plaintiff leave to appeal out of time to the High Court, and later

gave judgment allowing the appeal.

The defendant appealed to the Supreme Court against this judgment and at the

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hearing he sought to argue additional grounds of appeal challenging the High

Court's jurisdiction. The plaintiff objected on the ground that as the defendant had

not appealed against the interlocutory decision of the High Court on the point (i.e.

that it had jurisdiction) he could not now re-open the question.