DARKE IX V. DARKE IV

ADADE J.S.C.: On 1 March 1982 this court made an order returning to the Court of Appeal a case which had been put before us as an appeal but which we declined to hear. The said order was in the following terms:

“We consider that the issue as to the competence of the application is a matter that is governed by section 4 of the First Schedule of the Constitution, 1979. This provides that: ‘4. All proceedings pending before any court immediately before the coming into force of this Constitution may be proceeded with and completed in that court notwithstanding anything to the contrary contained in this Constitution.’

We would want to stress the importance and significance of the words ‘notwithstanding anything to the contrary contained in the Constitution.’ They make section 4 cut across article 137, as indeed it cuts across article 114 (5) of the Constitution, 1979. It seems to us that the operation of those provisions would require that the ordinary bench of the Court of Appeal as it exis…