LEARNED Counsel urged that this
application should be dismissed.
There are two opposing opinions
or decision emanating from several
divisions of the Court of Appeal on
the matter under consideration. The
first are decisions or opinion which
have held that a right of appeal
exists and a party or an interested
party aggrieved with a decision of
the National Industrial Court has
a right of appeal to the Court of
Appeal. That right is to be exercised
with the leave of the Court of Appeal
where the complaints do not involve
a question under Chapter IV of the
Constitution headed “Fundamental
Rights.” Some decisions have held
that apart from questions of breach
of fundamental rights, there is no
right of appeal from the decision’s of
the National Industrial Court to the
Court of Appeal in which case the
decision of the National Industrial
Court would be final and conclusive.
In my humble opinion, two divergent
or conflicting opinions or decisions
on a given subject matter can
never represent the intention of the
legislature, usually expressed in the
Constitution or an Act of the National
Assembly or a Law enacted by a State
House of Assembly. In Jurisprudence,
4th Edition by R.W.M Dias appears
the following statement at pages 285
to 287:
“There are some who believe
that judicial reasoning proceeds
exclusively by means of the case-bycase
method and that the influence
of values is infinitesimal, if not
non-existence. They overlook two
points. One is that the perception
of similarities and dissimilarities,
which is the essence of this mode of
reasoning, is subjective. Cases are not
presented with labels saying “similar”
tagged on to them. Resemblances and
differences depend on the selection
of facts and the level of generality at
which they are stated, and one can see
pretty much what one wants to see.
For, as pointed out, differences may
be found between even the closest
sets of fact, while similarities may
be alleged so as to justify what are
really new departures. Secondly, the
need for consistency and what is here
called fidelity to principle, doctrine
and tradition, are important values in
themselves, about which something
more must now be said.
“In legal matters, some degree
of certainty is at least as valuable
a part of justice as perfection,”
said Lord Hailsham. It has many
manifestations. An obvious one is the
doctrine of precedent and stare decisis.
The later was carried to an extreme
when both the House of Lords and the
Court of Appeal declared themselves
bound by their own decisions. The
House, as has been mentioned, has
now relaxed its practice as a concession
to flexibility, but the need for certainty
ensures that the power to depart from
its prior decisions will only be exercised
very sparingly. The Court of Appeal,
however, continues to be bound by its
decisions, which means that “flexibility
has to this extent to be sacrificed to
Even within the framework of stare
decisis, consistency works powerfully
in inducing judges to prefer to translate
the facts of the instant case into an
existing type-situation rather than play
a new variation. For instance, to take an
extreme example, the situation where a
dead snail is found in a bottle of ginger
beer is different from that where a snail
is found in a bottle of lemonade; but
there is irresistible pressure on a judge
not to stress such a difference. Similar
pressure applies in varying degrees
to less obvious situations. One reason
for this is the inertia of human nature,
which prefers guidance to the agony of
decision. “The instinct of inertia”, said
Lord Wright, “is as potent in judges
as in other people.” Another is that
people often regulate their conduct with
reference to existing rules, which makes
it important for judges to abide by
them. Innovations can be unsettling and
lead to a loss of confidence. The Privy
Council expressed the policy aspect of
this with crystal clarity.
“If the legal process is to retain the
confidence of the nation, the extent
to which the High Court exercises its
undoubted power not to adhere to a
previous decision of its own must be
consonant with the consensus of opinion
of the public, of the elected legislature
and of the judiciary as to the proper
balance between the respective roles
of the legislature and of the judiciary
as lawmakers… Such consensus is
influenced most of all by the underlying
political philosophy of the particular
nation as to the appropriate limits
of the lawmaking function of a nonelected
judiciary.” Geelong Harbor Trust
Commissioners vs. Gibbs Bright & Co.
(1974) A.C. 810 at pp.820-821.
This need to abide by existing rules
is all the stronger at a time when the
judiciary happens to be under attack, or
viewed with suspicion. A discretionary
element is indeed unavoidable in the
judicial process, but it is important that this should be played down by
conforming with rules as far as possible.
In other words at such a time the value of
consistency acquires very high priority.”
Justices of the Court of Appeal that
have held that there is no right of appeal
from the decisions of the National
Industrial Court to the Court of Appeal
on questions unrelated to fundamental
rights were determined by a panel of
three or five Justices. The alternative
decisions were arrived at by a panel of
three Justices of the Court of Appeal.
But a decision of a panel of three or five
Justices of the Court of Appeal may be
right or wrong or mighty have been
reached per incuriam. Sections 247 to
248 of the Constitution provides as
“247(1) For the purpose of exercising
any jurisdiction conferred upon it by this
Constitution or any other law, the Court
of Appeal shall be duly constituted if it
consists of not less than three Justices of
the Court of Appeal and in the case of
appeals from –
(a) A sharia Court of Appeal if it
consists of not less than three Justices of
the Court of Appeal learned in Islamic
personal law; and
(b) A Customary Court of
Appeal, if it consists of not less than
three Justices of Court of Appeal learned
in Customary law.
248. Subject to the provisions of
any Act of the National Assembly, the
President of the Court of Appeal may
make rules for regulating the practice
and procedure of the Court of Appeal.”
In Young vs. Bristol Aeroplane Co. Ltd.
(1944) 2 All E.R. 293 the English Court
of Appeal enumerated circumstances
under which that Court would refuse
to be bound by its previous decision
whether by a Full Court or a three
member panel of Justices of that Court.
At page 298 paragraphs “A”-“G”,
LORD GREENE, M.R. held as follows:
“It is true that in this and similar
cases the Court which held itself to be
bound by previous decisions consisted
of three members only. But we can find
no warrant for the argument that what
is conveniently but inaccurately called
the Full Court has any greater power in
this respect than a division of the Court
consisting of three members only.
The Court of Appeal is a creature of
statute and its powers are statutory. It is
one Court though it usually sits in two
or three divisions; each division has coordinate
jurisdiction, but the Full Court
has no greater powers or jurisdiction
than any division of the Court. Its
jurisdiction is mainly appellate, but
it has some original jurisdiction. To
some extent its decisions are final (for
example, in appeals in bankruptcy and
from County Court), but in the majority
of cases there is an appeal from its
decisions to the House of Lords either
with the leave of the Court of Appeal
or of the House of Lords. Neither in
the statute itself nor (save in two cases
mentioned hereafter) in decided cases
is there any suggestion that the powers
of the Court of Appeal sitting with six
or nine or more members are greater
than those which it possess when sitting
as a division with three members. In
this respect, although we are unable to
agree with certain views expressed by
GREENE, L.J. as will presently appear,
we think that he was right in saying that
what can be done by a Full Court can
equally well be done by a division of the
Court. The corollary of this is, we think,
clearly true, namely, that what cannot be
done by a division of the Court cannot
be done by the Full Court.
In considering the question whether
or not this Court is bound by its
previous decisions and those of Courts
of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The
first is that with which we are now
concerned, namely, cases where this
Court finds itself confronted with
one or more decisions of its own or
of a Court of co-ordinate jurisdiction
which cover the question before it,
and there is no conflicting decision
of this Court or of a Court of coordinate
jurisdiction. The second
is where there is such a conflicting
decision. The third is where this
Court comes to the conclusion that
a previous decision, although not
expressly overruled, cannot stand
with a subsequent decision of the
House of Lords. The fourth (a special
case) is where this Court comes to the
conclusion that a previous decision
was given per incuriam. In the second
and third classes of case it is beyond
question that the previous decision is
open to examination. In the second
class, the Court is unquestionably
entitled to choose between the two
conflicting decisions. In the third class
of case the Court is merely giving
effect to what is considers to have
been a decision of the House of Lords
by which it is bound. The fourth class
requires more detailed examination
and we will refer to it again later in
this judgment.
For the moment it is first class
which we have to consider. Although
the language both of decision and of
dictum as well as the constant practice
of the Court appears to us clearly to
negative the suggested power, there
are to be found dicta and, indeed,
decisions the other way.”
The Master of the Rolls further held
at page 299 paragraphs “A”-“C” thus:
“I wish to repeat what I said in the
course of the argument, that the Court
has more than once, sitting as a Court
with all its six members, decided that
it can overrule a decision of the Court
of Appeal which has held the field
for a number of years. If the Court of
Appeal, sitting with its six members,
can do so, equally a Court sitting with
a quorum of members can do the
same thing…”
In Miliangos vs. George Frank
(Textile) Ltd. (1975) 3 All E.R. 801,
Lord Willberforce, sitting in the House
of Lords, took into consideration “the
circumstances of today” (page 809
paragraph 3) to hold at page 812
paragraph “F” to “G” as follows:
“This brings me to the declaration
made by this House in 1966. Under
it, the House affirmed its power
to depart from a previous decision
when it appeared right to do so,
recognizing that too rigid adherence
to precedent might lead to injustice in
a particular case and unduly restrict
the proper development of the law.
My Lord, on the assumption that to
depart from the Havanna Railway’s
case would not involve undue
practical difficulties, that a new and
more satisfactory rule is capable of
being stated, I am of opinion that the
present case falls within the terms
of the declaration. To change the
rule would, for the reasons already
explained, avoid injustice in the
present case. To change it would
enable the law to keep in step with
commercial needs and with the
majority of other countries facing
similar problem.”
Lord Simon of Glaisdale in his
speech at page 816 paragraph “F” to
page 817 paragraphs “A”-“E” held as

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