The following joint opinion was given :-
KINGDON, c.]., NIGERIA, PETRIDES, C.]., GOLD COAST, AND WEBBER, C.]., SIERRA LEONE.
There are two matters submitted for the opinion of this Court in this case stated. We will deal with them in their logical sequence.
The Assistant Judge of the Warri Division has ruled that" the Rules of Court published under the hands of Deane, C.J., and Hall; J., are inoperative and void in Nigeria" and submits to this Court the question of whether or not that ruling is correct.
The Rules in question were made in 1928 under the provisions of Article 12 (1) of the West African Court of Appeal Order in Council, 1928, the material part of which then read :-
" Two Judges of the Court of Appeal, of whom the President shall be one, may make ... rules of Court .... "
Deane, C.J., was President, and Hall, J., one of the Judges. The Rules were therefore properly made and· applied to the territories in which the Court then exercised jurisdiction. These, at that time, did not include Nigeria. But in 1934 the Order in Council was amended so as to extend the jurisdiction of the Court to Nigeria and at the same time Article 12 (1) was amended so as to make the material part read :-
" The President and the Chief Justice of Nigeria may make
... Rules of Court."
The question is whether upon the amendment of the Royal Order in Council so as to include Nigeria .within the area of the jurisdiction of the Court, the Rules of the Court became automatically applicable to Nigeria.
We are of opinion that they did, and cannot subscribe to the proposition that with every alteration in the jurisdiction of a Court its Rules need to be remade before they can apply to the new area of jurisdiction. We are therefore of opinion that the answer to this question is that the ruling of the Assistant Judge is incorrect.
We now come to the second point:-
The Assistant Judge has ruled that" a motion for conditional leave to appeal, in the judgment instanced, cannot be entertained by the High Court," and submits to this Court the question of whether or not that ruling is correct. '
On this point it is true that, when a case of a would-be appellant comes within paragraph (a) of section 3 of the West African Court of Appeal Ordinance, 1933, and is not affected by either of the provisos to that section, an appeal to this Court lies as of right subject to an appellant fulfilling all the conditions of appeal imposed by the Court below as prescribed by the rules
