LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Interpretation of Constitution – Reference to Court of Appeal – Requirement that Question Must Arise from Proceedings
PRINCIPLE STATEMENT
The provision of the Constitution under Section 295(2) is very clear. From the wordings of this provision it is not just every question requiring constitutional interpretation that should be referred to the Court of Appeal. Before such a question can be so referred, the issue must arise in the proceedings before the High Court.
RATIO DECIDENDI (SOURCE)
"The provision of the Constitution under Section 295(2) is very clear. From the wordings of this provision it is not just every question requiring constitutional interpretation that should be referred to the Court of Appeal. Before such a question can be so referred, the issue must arise in the proceedings before the High Court."
EXPLANATION / SCOPE
Section 295(2) of the Constitution requires that a constitutional interpretation question must arise from proceedings before the High Court before it can be referred to the Court of Appeal. Not every constitutional question qualifies—the issue must be live in the pending proceedings. The High Court cannot refer hypothetical or abstract questions. The provision ensures that references are tied to actual disputes. The High Court must be seised of a matter where the constitutional interpretation is necessary for determination. The principle prevents advisory opinions and academic exercises. The court must identify the specific constitutional question arising from the pleadings. The reference must be made before final judgment. The Court of Appeal’s decision is binding.
