The Chief of Defence Staff & Anor V. Modu Alhaji Tijah (Makama) (2016)

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JOSEPH TINE TUR, J.C.A. 

 I tagged this determination Decision by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a decision to means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A Ruling is omitted in the definition of decision under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that,
When the nature of things changes, the rules of law must change too.
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of

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change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag this determination an opinion or a decision as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word determination at pages 243-244 as follows:
We gave careful consideration to the argument of

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Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ruling or determination of the High Court was a judicial decision or determination within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
In this section decision means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.
More light is thrown on the meaning of the words decision and determination in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It

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means a bringing or coming to an end or the mental action of coming to a decision, or the resolving of a question.
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.”
Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more

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than one Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.
Section 318(1) of the Constitution (supra) defines a decision to mean, in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A ruling is omitted from the definition of decision. I have decided to tag this determination Decision as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.
The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of decisions or opinions Justices of the Supreme Court or the Court of Appeal renders which constitutes the determination of these

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appellate Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.

I shall now consider this appeal on the merit.

The 1st appellant is the Chief of Defence Staff. The 2nd appellant is Colonel Ibrahim Ali, Commander Joint Task Force (JTF) Damaturu, Yobe State. The respondent is Modu Alhaji Tijah (Makama). On 24th July, 2013 the respondent by motion on notice proceeded against the appellants under the Fundamental Rights (Enforcement Procedure) Rules, 2009, Section 35(1)-(4) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983. The proceedings were instituted by the respondent before the Federal High Court, Maiduguri in Borno State on 24th July, 2013 but filing fee was paid on 30th July, 2013. Though served the processes, the appellants did not appear and the learned Federal Judge rendered