LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Interpretation of Constitution – Reference to Court of Appeal – Court of Appeal’s Power to Determine Whether Question Arose
PRINCIPLE STATEMENT
The Court of Appeal is as much a judge of whether a question as to interpretation or application has arisen in the proceedings as the High Court. The provision of Section 295(2) that 'the court shall give its decision upon the question' does not remove from the Court of Appeal the power to decide whether in the first place there was such question fit to be referred pursuant to Section 295(2).
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Bamaiyi v. A.-G., Federation & Ors (2001) NLC-452000(SC) at p. 27; Paras A–C.
"The Court of Appeal is as much a judge of whether a question as to interpretation or application has arisen in the proceedings as the High Court. The provision of Section 295(2) that 'the court shall give its decision upon the question' does not remove from the Court of Appeal the power to decide whether in the first place there was such question fit to be referred pursuant to Section 295(2)."
EXPLANATION / SCOPE
The Court of Appeal has the power to determine whether a constitutional question properly arose in the proceedings, independent of the High Court’s view. Section 295(2) does not remove this power. The Court of Appeal may decide that no fit question was referred. The High Court’s referral is not binding on the Court of Appeal. The Court of Appeal examines whether the question was necessary, whether it genuinely arose, and whether it was properly framed. If the Court of Appeal concludes no question arose, it may decline to give a decision. The principle ensures that the reference procedure is not abused. The Court of Appeal acts as gatekeeper.
