Star Deep Water Petroleum Ltd. & Ors V. A. I. C. Limited & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling)

By a Motion on Notice dated and filed on 1st December, 2005, the Appellants/Applicants had prayed for “an order staying the execution of the Judgment of the High Court of Lagos State delivered in Suit No. LD/264/88 on 4th November, 2005 pending the final determination of the appeal contained in the Notice of Appeal dated 7th November, 2005”. This motion was heard by this court on 27th September, 2010 by a panel consisting of their Lordships: Clara Bata Ogunbiyi, JCA (Presiding), Hussein Mukhtar, JCA and Mohammed A. Danjuma, JCA. Ruling was reserved, and on the 15th of December, 2010, the said Ruling was delivered by a panel of Justices consisting of Clara Bata Ogunbiyi, JCA, Adzira Gana Mshelia, JCA and Mohammed A. Danjuma, JCA. As the Registry of this court was in the process of dispatching clean copies of the Ruling to the parties, it was discovered that Justice Mshelia was erroneously included in the panel that delivered the Ruling having not been a member when the motion was heard.

In view of this obvious mistake, counsel to the parties were invited to address the court on the validity of the said Ruling in view of the change in the composition and membership of the panel at the hearing of the motion and the Ruling thereof. The submissions of the respective parties as made by their counsel are summarized hereunder.

It was the submission of Ladipo Soetan Esq., learned counsel for the Appellants/Applicants, that the said Ruling is a nullity and that it be set aside and the motion heard de-novo. In support of this argument, he cited the following cases: Shuaibu v. Nigeria: Arab Bank Ltd. (1998) 5 N.W.L.R. (pt.551) 582; Ubwa v. Tiv Area Traditional Council (2004) 11 N.W.L.R. (pt.884) 427 and Sokoto State Govt. v. Kamdex Nig. Ltd. (2007) 7 N.W.L.R. (pt.1034) 466.

The learned Senior Counsel for the 1st Respondent, Prof. Adesanya, SAN, submitted that the Ruling in focus was an inchoate decision of the court and violates Section 294(2) of the 1999 Constitution of the Federal Republic of Nigeria. He agrees with Soetan Esq. that the Ruling is a nullity and adopts the cases cited by him but drew the attention of the court to Shuaibu’s case and submitted that it was decided under the 1979 Constitution of Nigeria. He urged this court to set aside the said Ruling. As to whether the same panel that first heard the motion or another panel should be constituted to re-hear same, learned Senior Counsel says he remains indifferent.

Paul Usoroh, SAN, the learned senior counsel for the 4th Respondent posited that after reviewing the cases by the Apex Court in respect of the matter at hand, he is of the view that the Ruling is invalid and a nullity. He however, cited the case of Adeigbe & Anor. v. Kusimu & Ors. (1965) 1 All NLR 260 where he submitted that the Supreme Court held that where such situation as in this Ruling occurs, the court should look at the facts whether it is a nullity or an irregularity. In all, he urged this court to set aside the said Ruling and set up a fresh panel to hear the motion.

Finally, L. A. Owolabi Esq., counsel for the 5th Respondent, apart from agreeing with the position taken by other counsel in this matter, urged that all the Justices who took part in the hearing of the motion including Hon. Justice Mshelia who later took part in the writing of the Ruling should be disqualified from taking part in the rehearing of the motion.

By way of an addition, Prof. Adesanya SAN is of the view that the case of Adeigbe v. Kusimu (Supra) cited by Usoroh, SAN is marginally relevant in this case because Section 294 of the 1999, Constitution was not enacted when the case was decided. The 2nd and 3rd Respondents, though duly served with hearing notice, were not represented in court when these arguments were taken.

The narrow issue to be decided in this case is whether the Ruling delivered by a panel of this court of which one of the members did not take part in the hearing of the motion is valid.

By virtue of Section 247(1) of the Constitution of the Federal Republic of Nigeria, 1999, for the purpose of hearing an appeal before the Court of Appeal, it must consist of not less than three Justices of the Court of Appeal. This number is just the minimum as there can be more in certain other appeals or matters depending on the nature and circumstances of the matter before the court. My understanding of this provision is clearly that a minimum of three Justices of the Court of Appeal shall sit and determine appeals brought before it. It is also my view that only the three Justices who heard the Appeal can possibly write the Judgment. It does not permit any Justice who did not take part in the hearing to emerge to write a Judgment or Ruling. This will not only be absurd but could breed injustice as the new Justice did not hear any argument in the case and as such cannot come to any conclusion in the matter. A Judge who did not give the parties a hearing on a complaint, cannot determine or decide the case of the parties justly. See Sokoto State Govt. v. Kamdex Nig. Ltd. (Supra).

Also, under Section 294(2) of the 1999 Constitution of the Federal Republic of Nigeria, 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. As concerns the Court of Appeal, and with regard to the Ruling in focus, two members constitute the majority as it were. By the same Section of the 1999 Constitution, a Justice of the Court of Appeal who did not take part in the hearing of an appeal, can in fact take part in the delivery of the Judgment but cannot take part in the writing of the Judgment. He cannot express his opinion in the Judgment.

This is trite. The Constitution, having provided for a minimum number of three Justices to form a panel to sit and deliver Judgment in the Court of Appeal, anything short of this minimum renders the panel incompetent and the outcome of their sitting, including the Judgment thereof, becomes a nullity, however well conducted.

For a decision of this court or any other court for that matter to be valid, the composition of the court must be competent. The Apex Court has set a standard which makes a court competent to deliver a valid Judgment. In Madukolu v. Nkemdilim (1962) 2 SCNLR, 341, the Supreme Court states that a court is competent when:

(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other;