LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A. 

I have tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered because a ?decision? to mean, ?in relation to a Court, any determination of that Court and includes judgment, Decree, order, conviction, sentence or recommendation.? What the fathers of the Constitution omitted should not be inserted by trial and appellate Court Justices. In Davies vs. Powell (1737) Willes, 46, Willes, C.J. held at page 51 that, ?When the nature of things changes, the rules of law must change too.? R.W.M. Dias in Jurisprudence, 4th edition concurred at page 196 as follows:
?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of 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 force on every

1

person or authority in Nigeria. Any law, rule or judicial practice or precedent 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 any determination an ?opinion? or ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Any determination by a Justice of the Court of Appeal is a ?decision? or an ?opinion?.
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 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

2

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 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

3

rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
Section 294(2)-(4) 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 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 294(4) of the Constitution does not state that where the decision or opinion of the Court

4

is to be delivered, namely, in the Court or in any of Justices? Chambers. In Jarvis Motors (Harrow), Ltd. & Anor. vs. Carabott & Anor. (1964) 3 All E.R. 89 Ugoed-Thomas, J., (as he was) held at page 91 lines ?B?-?C? thus: what is not forbidden is permitted.?
?
The appellants have appealed against the decision of Hon. Justice Haruna Musa Kurya of the Federal High Court, Jos, Plateau State delivered on 8th April, 2016 in favour of the respondents. The Notice of Appeal was filed on 12th April, 2016. The appellant?s brief, settled by Festus Keyamo, Esq. of Counsel was filed on 10th May, 2016. The 1st and 2nd respondents? brief, settled by H.S. Ardzard, Esq. of learned Counsel was filed in this Court on 1st July, 2016. The 3rd respondent?s learned Counsel Olatigbe, Esq. ? Director in the Federal Ministry of Justice did not file any brief of argument hence was not granted audience when the appeal came up for hearing on 21st July, 2016. The appeal suffered some adjournments at the instance of learned Counsel for one reason or the other until briefs were adopted by the

5

appellants? Counsel on 21st July, 2016. Learned Counsel urged that the appeal be allowed. Page 6 of the brief set out the following issues for determination:
?1. Whether the learned trial Judge was right when he relisted a suit struck out for more than 14 months without cogent grounds? (This issue is distilled from Grounds 1 and 5 of the Notice of Appeal).
2. Whether the learned trial Judge was right when he restored the interim orders earlier made on 19th September, 2014 which had become spent and/or lapsed by effluxion of time? (This issue is distilled from Ground 2 of the Notice of Appeal).
3. Whether the learned trial Judge was right when he made an order restoring all orders including the order made on 23rd October, 2014 while relisting the suit struck out on 30th October, 2014? (This issue is distilled from Ground 3 of the Notice of Appeal).
4. Whether the learned trial Judge was right when he held that there was a proper prayer on the face of the motion paper to relist the suit? (This issue is distilled from Ground 4 of the Notice of Appeal).?
?
The learned Counsel to the 1st and 2nd respondents distilled the

6

following two issues for consideration at page 6 of the brief to wit:
?(i) Whether the learned trial Judge was right to have relisted for hearing and determination of suit No.FHC/J/CS/77/2014 which was earlier struck out by the Court. (Distilled from Grounds 1, 4 and 5).
(ii) Whether the learned trial Judge was wrong when he restored the interim order previously made in Suit No.FHC/J/CS/77/2014. (Distilled from Grounds 2 and 3).?