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Anachuma Anyaoke & Ors V. Dr F. Adi & Ors (1985) LLJR-SC

Anachuma Anyaoke & Ors V. Dr F. Adi & Ors (1985)

LawGlobal-Hub Lead Judgment Report

G. IRIKEFE, J.S.C 

Before the Onitsha Judicial Division of the High Court of the then Eastern Region of Nigeria, the appellants herein sued the 1st set of respondents herein claiming as follows

“Declaration of title to land known as Nne Agu or Ntumala, situate in Agulu. (Annual value of 20pounds). Recovery of possession of the said piece of land. 100pounds damages for trespass. Injunction trespassing the defendant, his servants and or agents from further trespass into the said Nne Agu or Ntumala land.”

By a series of applications made before the High Court, before the actual hearing commenced, that court made orders joining the other sets of respondents to this appeal. The High Court took the evidence of all the parties, recorded the address of each counsel and adjourned the matter for judgment. In its judgment delivered on 2nd February, 1976, the High Court (Aseme, J, as he then was) dismissed all the claims of the appellants.

The appeal against the decision of the High Court was dismissed by the Court of Appeal on 15th August, 1980; the implication of this being that the decision of the court of trial was upheld. The appellants have now appealed to this court, on a number of grounds, both of mixed law and fact, but the only ground argued before us which raises a constitutional issue, reads thus

“4. The judgment of the Court of Appeal is null and void and of no effect as it offends section 258 of the Constitution of the Federal Republic of Nigeria 1979.

PARTICULARS

(a) Only one judge of the Court of Appeal, Hon, Justice J. A. Phil-Ebosie, J.C.A. sat, read and delivered his judgment but the judgments of other judges who were absent, or their statements in writing that they adopted any particular judgment were not pronounced or read in Court on 15-8-80.

(b) No copy of the judgment was delivered to the appellants on the date of the delivery of the judgment and in fact by letter No. FCA/E/232/78 dated September, 1980, a copy of the judgment signed by only Hon. J.A. Phil-Ebosie, J.C.A., was sent by post to the Appellants’ counsel.

Chief Onyiuke, S.A.N. for the appellants argued that the issue raised in the above ground of appeal relates solely to the jurisdiction of the Court of Appeal to deliver judgment. He argued further that, in the case in hand; it would appear that the court which delivered judgment was constituted by only one justice of the Court of Appeal (Phil-Ebosie, J .C.A.). Counsel submitted that the jurisdiction of the Court of Appeal to entertain an appeal, such as in this case, from a decision of a State High Court, derives from section 219 of the Constitution of the Federal Republic of Nigeria (1979) and that in every case, the Court of Appeal that is the particular panel thereof, must be properly constituted. In the view of counsel, the Court of Appeal would not be properly constituted for the purpose of delivery of judgment if only one justice out of three that heard all the argument in the appeal sat to read the judgment thereon. In each case, argued counsel, the panel sitting to deliver judgment must be a panel of three, the legally prescribed quorum for a panel. Chief Onyiuke did not, however, spell out whether what was required was the mandatory presence of the three-man panel that heard argument in the case or whether the requirements of the constitution would be met, if any other three members of the Court sat to read the judgments of those who participated in the hearing. Counsel cited our decision in Ifezue v. Mbadugha and Anor (1984) 5 S.C. 79 as authority for the foregoing submissions.

Mr. Okonkwo, learned counsel representing the 1st and 3rd set of respondents, in his reply, argued that this court is bound by the appeal record, which shows that all the three justices who heard the case had contributed to the judgment. He added that section 258(2) of the Constitution envisages that one justice can sit as a court to read his own judgment and then the judgments of the two other justices who might not be present. Mr. Akpamgbo for the 2nd set of respondents adopted the argument of Mr. Okonkwo.

For ease of understanding, I propose to set out the heading of the judgment of the Court of Appeal as it appears at page 157 of the record of appeal.

“In The Federal Court of Appeal.

Enugu Judicial Division

Holden at Enugu.

On Friday the 15th Day of August, 1980.

JUSTICES

JOHN ANIEMEKA PHIL-EBOISE -JUSTICE.COURT OF APPEAL FCA/E/159/77

ALFA BELGORE-JUSTICE.COURT OF APPEAL

ADENEKAN ADEMOLA -JUSTICE, COURT OF APPEAL.

ANACHUNA ANY AOKE & ORS -APPELLANTS.

V.

SIMON ADI & ORS. -RESPONDENTS.

Judgment of the Court

PHIL-EBOSIE-Presiding Justice

Then follows the entire judgment which concludes thus at page 163 of the record

‘In the final analysis we find no ground to disturb the verdict of the learned Judge.

The appeal is dismissed with N200 costs to the defendant and N100 costs each to the two co-defendants.’

SIGNED

J.A. PHIL-EBOSIE, J.C.A

SGD.

A. Belgore, J .C.A. I concur.

SGD.

A. Ademola, J.C.A. I concur.

Counsel

F. Unigwe for the appellant.

G.N.A. Okafor for the co-defendants & 1st set of defendants.

J.H.C. Okolo for the 2nd set of defendants.”

Implicit in the above extract is the fact that, on the date shown, the presiding justice read what he referred to as the judgment of the court, to which the other two justices concurred. The extract also reveals that counsel for the parties were present in court when Phil-Ebosie, J.C.A. (Presiding Justice) read his judgment. Page 152 of the record shows that the counsel listed as having appeared on the date judgment was delivered where the same as appeared when the appeal was argued, up to the time it was adjourned for judgment. One thing is clear from all these and it is that Chief Onyiuke, S.A.N. did not participate in the proceedings at the Court of Appeal. The only way counsel could have faulted or challenged the record on the date of judgment is for him to procure, if he could, one of the counsels actually present when the judgment was read to say that page 157 along with 163 did not truly reflect the state of affairs on that day. This line of action has not been pursued by counsel. The contention here is not that the other learned justices were physically present in court when judgment was being read. The most liberal view that could be placed on the available record, and this, to me, is the greatest concession that could be made to the contention of the appellants, is that Only Justice Phil-Ebosie, J.C.A. (The Presiding Justice) was present in court to read his judgment to which the other two justices who had sat with him throughout the entirety of the argument, had subscribed their concurrence in writing, while each of them subscribed his signature to validate such concurrence. The question that then arises is how does the state of the record fits into the validity of the judgment so delivered. No question, it seems to me, is being raised as to the jurisdiction or competence of the panel that sat to entertain argument in the Appeal. The query is as to the constitution of the court when it sat to deliver judgment.

In Madukolu and Ors. v. Nkemdilim [1962] 1 All N.L.R. Part 4 p. 587 at p. 595-Bairamian, F.J. had this to say on the competence of a court to entertain proceedings

“Put briefly, a court is competent when-

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

(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”

There being no question as to the competence of the Court of Appeal as a court, I shall now proceed with an examination of its source of competence.

It is settled law that a hearing in a case extends up to the delivery of judgment in that case. See-Ezenwa v. Mazeli and Ors. (1955) 15 W.A.C.A P. 67. Similarly, a judge at the time of delivering judgment in a case is not functus-officio until the orders made therein are perfected. See-Cheeseman v. Bowaters United Kingdom Paper Mills Ltd. [1971] 3 All E.R. 513.

On the constitution of a panel of the Court of Appeal, Section 9 of the Court of Appeal Act (No. 43 of 1976) provides as follows

“The Court of Appeal shall be duly constituted for the purpose of hearing and determining any appeal if it consists of at least three Justices.”

This requirement was met in this case. On a reserved judgment such as was the case here, Section 11 of the Act (No. 43 of 1976) provides thus:

“When, after an appeal in any case or matter has been fully heard before the Court of Appeal, judgment is reserved for delivery on another day, then, on the day appointed for delivery of the judgment, it shall not be necessary for all those Justices before whom the appeal in the case or matter was heard to be present together in court, and it shall be lawful for the opinion of anyone of them to be reduced into writing and to be read by any other justice; and in any such case the judgment of the Court shall have the same force and effect as if the Justice whose opinion is so read had been present in court and had declared his opinion in person.”

Provisions of pari-materia to the two above exist in the Constitution of the Federal Republic of Nigeria (1979) as amended by Decree No.1 of 1984. Section 266 of the said Constitution provides

“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal………. ”

Such jurisdiction to which reference is made in the provision above is spelt out in Section 219 of the Constitution which reads:

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of State, Sharia Court of Appeal of a State.” (Italics is mine)

Section 258 of the Constitution which is split into three sections provides thus

“(1) Every court established under this Constitution shall deliver its decisions in writing not later than three months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of delivery thereof.

(2) Each justice of the Supreme Court or 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 present at the hearing. (Italics is mine).

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(3) A decision of a court insisting of more than one judge shall be determined by the opinion of the majority of its members.”

For the purpose of this appeal only Section 258(2) with the proviso thereto arises for interpretation. From the foregoing, it would appear that once the panel that heard the case on appeal was properly constituted, that is competent, a judgment read within the following permutations would nevertheless be valid and unimpeachable:

(a) One justice sitting alone to read his own signed judgment to which the others who sat with him had earlier signified their concurrence in writing. (The case here).

(b) All the justices who sat in the case sitting together to read their own individual opinions one after the other.

(c) Justices, other than those who sat to hear the case, sitting to read the judgments already signed and authenticated, produced by those who actually sat over the case.

In the case under (c) it would be in order for a like number of justices to sit at the reading of the judgments as those who had sat over the case, or for one, or two, as the case may be, to sit and read the judgments of the others.

It seems to me that, the essential element with regard to the validity of a judgment delivered on appeal, is the existence of an acknowledgement in writing or by pronouncement, by every individual justice, as to what his or her opinion is on the said judgment, so that quantification of the opinions may be made, should the need arise, under Section 258(3). This would ensure easy ascertainment of the opinions if unanimous, and if split, what constitutes the majority opinions.

The views urged on us by the appellants’ counsel, if valid, are not only incongruous but otiose; in effect, a judgment fully acknowledged would be defective, solely on the ground that the court that sat over the case did not come back in the same strength to read the judgments, or did not install a like number of justices to give the appearance of standing in the shoes of those who actually sat over the case.

A decision on how justices would vote in a given case is usually taken at their conference on the case. At such a conference, one of their members is assigned to produce the lead judgment for scrutiny and approval by the others, where there is unanimity. After the approval of the draft of the lead judgment, those justices who wish to support this with short contributions of their own, usually do so. The other members of the panel may, however, feel that the lead judgment is adequate; in which case, they may, merely signify concurrence with same.

If there is a split-decision, it is usual for a justice, at conference, to be nominated to prepare a draft of the majority faction, while another is similarly nominated to prepare that dissentient faction. There may be occasions when circumstances beyond the control of anyone may make it impossible for a justice to make available a concurring opinion at the time all the judgments are being read. I recall that, in Otuaha Akpapuna and 3 Ors v. Obi Nzeka and 3 Ors (1983) 7 S.C.1 pp.1-70, the decision at conference was unanimous, but by the time the judgments were actually read in court on 8th July, 1983, Idigbe, J.S.C. a member of the panel in the case, had taken ill and subsequently died. Page 28 of the report in this case contains the following entry: “Idigbe, J.S.C. who is not present had expressed agreement.”

The enactments set out earlier on in this judgment, both in the Court of Appeal Act and in the Constitution, are designed to ensure that a judgment is not vitiated merely because, for unforeseen circumstances, it is impossible to assemble all the justices who entertained argument in a case, although their judgments may have been prepared within the period prescribed under Section 258 (1) of the Constitution. To insist, as learned counsel for the appellants has argued before us, on the mandatory presence in court of all the justices who heard argument in an appeal on the date of delivery of judgment, would, in my view, amount to placing an interpretation on Section 258 (2) of the Constitution that it was never intended to carry. Indeed, such an interpretation would make it well nigh impossible for the appeal courts to function. Alternatively, if the insistence of counsel merely relates to the quantum of justices sitting to read a judgment, then my answer is that such is not the requirement of the section he relies upon. If it were, it would be a clear case of symbolism being thoroughly abused, and the framers of our constitution could not have contemplated a situation so ridiculous.

In Ifezue v. Mbadugha and Anor. (Supra) while dealing with the provisions of Section 258 (1) of the Constitution, this court, in a majority decision, held that the requirement that an adjourned judgment should be delivered not outside the prescribed period of three months was mandatory. It however held unanimously, that the requirement that a copy of the delivered judgment should be made available to all the parties, at the time of delivery, was merely directory. In so deciding, the court took into consideration the inadequacies existing within the secretarial arm of our judicial organisation.

On the whole, I find no merit in this appeal and would dismiss it. The appeal accordingly fails and it is hereby dismissed. I award N300 costs jointly in favour of the two sets of respondents against the appellants.

The above decision merely deals with the preliminary constitutional issue raised in this appeal. The grounds of mixed law and fact are as yet to be argued, if the appellants are so advised, before an ordinary panel (five-man panel) of this court.

G. S. SOWEMIMO, C.J.N.: I agree with the judgment of my learned brother, Ayo Irikefe, J.S.C., and I have nothing to add.

M. BELLO, J.S.C.: I had the advantage of reading the judgment of my learned brother, Irikefe, J.S.C. I adopt his reasoning and conclusion stated therein. I too am of the opinion, having regard to the provisions of Section 258 (2) of the Constitution, the Court of Appeal is properly constituted for the purpose of delivering its decision of it consists of at least one Justice who delivers his own opinion and the opinion of any other Justice who was present at the hearing.

KAYODE ESO, J.S.C.: I agree entirely with the lead judgment which has just been read by my learned brother Irikefe, J.S.C. in this case.

S.258 of the Constitution of the Federal Republic of Nigeria should not be interpreted in a way to paralyse the working of the Court. To insist on the presence of all the Justices who heard a case for the purpose of giving or reading their own judgments is to give a perverse interpretation to the lucid wording of the section.

I will thereupon not wish to repeat what my learned brother Irikefe, J.S.C. has carefully set out in the lead judgment. I will also dismiss the appeal on the terms specified in the judgment.

A. NNAMANI, J.S.C.: When this appeal came before this Court on 15th January, 1985 a preliminary constitutional issue was taken by the full Court.

This issue arose from ground 4 of the grounds of appeal to this Court in which the appellants complained in effect:

(a) That only one Justice of the Court of Appeal sat, read and delivered judgment on 15th August, 1980 while the judgments of the other Justices of the Court who heard the case were not present in Court and

(b) No copy of the judgment was delivered to the appellants on the date of delivery.

I had the advantage of reading in draft the judgment just delivered by my learned brother lrikefe, J.S.C. in which he has fully dealt with all the arguments advanced by learned counsel on these issues. I entirely agree with his reasoning and conclusions. My comment is only by way of emphasis.

It seems to me too that the argument so forcefully put forward by learned Senior Advocate appearing for the Appellants, Chief G. C M. Onyiuke, can be dealt with solely by reference to the State of the Record of Appeal. On that record on pages 157, 163 and 164 was clear that the Court of Appeal that delivered judgment on 15th August, 1980 was constituted by J. Phil-Ebosie, Alfa Belgore and Adenekan Ademola, J.J.C.A. who also heard the appeal; that at the end of the judgment of Phil Ebosie, J.C.A., the concurrent judgments of Alfa Belgore and Adenekan Ademola, J.J.C.A. appear; the names of counsel for the appellants in that Court as well as those of counsel for the respondents appeared; an order of the Court of Appeal was drawn on the same 15th August, 1980 to the effect that

“Upon reading the record of appeal herein, and after hearing, F.S.C. Unigwe Esq. of Counsel for appellant and G.N.A. Okafor Esq. of Counsel for 1st and 3rd Respondents and J. H. C. Okolo Esq. of Counsel for the 2nd Respondents, it is ordered that we find no ground to disturb the verdict of the learned judge. The appeal is therefore dismissed………………………………………….”

In the absence of evidence to the contrary, it seems that the three learned justices sat and read their judgments. Admittedly page 165 did introduce some confusion but it would appear that that page coming after the order of the Court on 15th August, 1980 cannot be accurate. It appears to be the record of something that may have happened before 15th August, 1980 particularly as it recorded only F.S.C. Unigwe for appellant as present, the counsel for the two sets of respondents were absent.

I think it was to put the matter beyond the pale of argument that my learned brother, lrikefe, J. S. C dealt with the law and made references to the relevant constitutional provisions. Section 9 of the Court of Appeal Act (No. 43 of 1976) provides that

“The Court of Appeal shall be duly constituted for the purpose of hearing and determining any appeal if it consists of at least three Justices”

This necessarily includes delivery of judgment. Section 266 of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No.1 of 1984 in effect provides that the Court of Appeal must be constituted by at least three Justices for the purpose of exercising any jurisdiction which I agree must include delivery of judgment. As earlier indicated, on the state of the Record three Justices of the Court delivered judgment on 15th August, 1980. Even if it was the case that only Phil-Ebosie, J.C.A. sat, read his judgment, and those of the other justices, the judgment of the Court would still be valid since provisions appear to have been made both in the Federal Court of Appeal Act (see Section 11) and in Section 258 (2) of the Constitution.

That subsection provides in a proviso 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 present at the hearing”.

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This provision is significantly subsequent to the provision of Section 226 of the Constitution. To insist that all the justices who heard a case must be present at the delivery of judgment, or that other justices must be brought in to make up the number three or five as the case may be is to miss the whole intendment of Section 258 of the Constitution which was designed to remove the bottlenecks that hitherto surrounded the delivery of judgment. The various decisions of this Court in which this procedure has been followed are not just matters of practice but are in accord with the constitution.

The issue of delivery of a copy of the judgment of the Court on the date of delivery thereof has been dealt with by the majority decision of this Court in Chief D. lfezue v. Mbadugha (1984) 5 S.C. 79.

I abide by all the orders in the said judgment of lrikefe, J.S.C.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Irikefe, J.S.C. I entirely agree that the constitutional issue raised in this appeal lacks merit and that it should be dismissed.

The practice in this Court and the Court of Appeal whereby a judge may read in court the judgment of his brother in the absence of the latter was well-established before the promulgation of the Constitution of the Federal Republic of Nigeria, 1979. The practice was rested on the provisions of Section 11 of the Supreme Court Act 1968 and Section 11 of the Federal Court of Appeal Act, 1976 (No 43 of 1976). Both sections have mutatis mutandis the same wording and provide as follows:

“When, after any cause or matter has been fully heard before the Supreme Court (Court of Appeal), judgment thereon is reserved for delivery on another day, then, on the day appointed for the delivery of the judgment, it shall not be necessary for all those judges (Justices) before whom (the appeal in) the cause or matter was heard to be present together in court, and it shall be lawful for the opinion of any of them to be reduced into writing and to be read by any other judge (Justice); and in any such case the judgment of the Court shall have the same force and effect as if the judge (Justice) whose opinion is so read had been present in court and had declared his opinion in person.” (The parenthesis apply to the Federal Court of Appeal Act, 1976).

These provisions are re-enacted on a higher pedestal under Section 258, Sub-section (2) of the 1979 Constitution which, as amended by the Constitution (Suspension and Modification) Decree No. 1 of 1984, reads:

“(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 delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.”

It follows therefore that all the Justices that, as a panel, hear any matter or cause may sit together to deliver a judgment or may delegate any other Justice, whether or not he is a member of the panel, to read their judgment. In the case in hand, the record of appeal shows in one respect, that is on pages 157, 163 and 164, that all the Justices of the Court of Appeal who heard the appeal in the case, sat in court on 15th August, 1980 to deliver their respective judgments. On the other hand the same record of appeal shows on page 165 thereof that only one Justice-Phil-Ebosie, J.C.A. sat and read the judgment which begins on page 157 and ends on page 163 of the record. This state of confusion in the record of appeal has not been untangled. Learned counsel for the appellant chose to base his argument on the state of the record as on page 165.

It is observed in passing that the correctness of the record of appeal has not been challenged by the appellants. They appear not to have taken notice of pages 157, 163 and 164 of the record. Consequently it is only necessary to consider this appeal in the light of the contents of page 165 of the record of appeal. Granted therefore that Phil-Ebosie, J.C.A. sat alone and read his judgment on which Ademola and Belgore, JJ.C.A. signified their concurrence by so stating and appending their signatures. The question then is: was there any violation of the provisions of Section 226 read with Section 258 of the 1979 Constitution as contended by learned counsel for the appellants

Section 226 provides that the Court of Appeal is duly constituted for the purposes of exercising any jurisdiction conferred upon it when it consists of three Justices. As already seen Section 258, Subsection (2) allows the opinion of a Justice who heard an appeal to be read or pronounced in his absence by another Justice whether or not the latter sat with him at the hearing. This in itself connotes that not all the members of the panel that constitutes the Court of Appeal need be present when judgment is to be delivered. If a member or two out of the three Justices is or are allowed by the Constitution to be absent, then, in my opinion, it will be defeating the intendment of the provisions of Section 258, Subsection (2) to argue, as done by learned counsel for the appellants, that when delivering judgment the Court of Appeal is not properly constituted unless three Justices are empanelled for that purpose irrespective of whether or not the Justices heard the appeal. One may ask what purpose that exercise will serve. Is it to provide the members of public with an array of Justices instead of one on the bench With respect, I do not see any substance in the argument and I hold that the Court of Appeal was properly constituted by Phil-Ebosie, J.C.A. when he sat alone and read his opinion and those of Ademola and Belgore, J.C.A.

The next contention is that the judgment of the Court of Appeal was null and void since no copy of the Court’s judgment was furnished to the appellants on 15th August, 1980 when judgment was delivered. In my opinion this point also lacks merit. We have already decided in Ifezue v. Mbadugha (1984) 1 SCNLR. 427 that the supply of the copy of judgment to parties as provided under section 258 subsection (1) ofthe 1979 Constitution is not mandatory but directory. The failure, therfore, to comply with the requirement is not fatal to the judgment delivered by the Court of Appeal.

For these and the reasons given in the judgment of my learned brother Irikefe, J.S.C. I too would dismiss this limb of the appeal. I endorse the order contained in the said judgment.

A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of reading before now, the lead judgment of my brother Irikefe, J.S.C. just delivered, with which I agree. I only wish to add concurrence my own views on the reasons for agreeing with the judgment of Irikefe, J.S.C.

On the 2nd November, 1984, Counsel to the appellants in this appeal, in his motion seeking leave to appeal pursuant to Order 9, Rule 2 of the Supreme Court Rules 1977 included a statement of the questions which applicant would like the Court to consider. This applicant is entitled to do and is in accordance with Order 9 Rule 2(b) of the Rules of the Supreme Court 1977. The following questions were included-

(i) Have the appellants as plaintiffs in this land case (in which title, possession and the right to possession are in issue) established their claim to the land in dispute as claimed by them in their writ and in their Amended Statement of Claim.

(ii) Was the Federal Court of Appeal correct in striking out grounds (i), (ii) & (iii) of the grounds of appeal contained in the Notice of Appeal from the decision of the High Court to the Court of Appeal for reasons given by it or at all.

(iii) Did the Court of Appeal consider the appeal on its merit.

(iv) Are the plaintiffs entitled to judgment on a proper assessment and evaluation of evidence before the Court.

(v) Whether the decision of the Court of Appeal is competent having regard to Section 226 of the Constitution of the Federal Republic of Nigeria 1979.

The substantive application for extension of time within which to apply for leave to appeal, leave to appeal and enlargement of time within which to appeal having been granted. Counsel for the applicant sought and was granted leave to argue first, the last of the questions for consideration. There is no doubt this is a point of law of immense constitutional importance, which, if successful, was bound to determine the appeal in limine.

It seems to me from the particulars of error in ground 4 of the grounds of appeal filed, this same point was to be relied upon. I reproduce the ground of appeal and the relevant particulars which are as follows-

“4. The judgment of the Court of Appeal is null and void and of no effect as it offends Section 253(1) of the Constitution of the Federal Republic of Nigeria, 1979.

PARTICULARS

(a) Only one Judge of the Court of Appeal, Hon. Justice J.A. Phil-Ebosie, J.C.A. sat, read and delivered his judgment but the judgments of other who were absent, or their statements in writing that they adopted any particular judgment were not read or pronounced in Court on 15-8-80.”

It is clear that question (v) in the present application and ground 4 of the grounds of appeal are directed towards establishing the nullity of the judgment appealed against on the ground of the incompetence of the Court as alleged. Concisely stated the result of a successful argument that the judgment of the Court was pronounced by a Court not constituted in accordance with s.226 of the Constitution, will lead to the judgment not being pronounced in accordance with Section 258(1), and will therefore be a nullity. In my opinion, this is the gravamen of the question to be answered as I have already stated, if successful, will determine this appeal in favour of the appellant in limine. Where the facts relied upon by the applicant are established, then the determination of the issue will rest on the correct construction given to those facts in views of Section 226 and 258(1) of the Constitution. If the facts as alleged are not established, casus cadit, then the issue does not arise.

ARGUMENTS OF COUNSEL

In his argument before us, Chief Onyiuke, S.A.N., did not limit his contention to the competence of the Court of Appeal to deliver its own judgment. He referred to ground 4 of the grounds of appeal, at page 168 of the record of proceedings, and to pages 9-10 of his brief of argument. Counsel to the applicants referred to page 165 of the record of appeal and submitted that only the Hon. Justice J. A. Phil-Ebosie sat, read and pronounced the judgment appealed against. He contended that page 165 and not page 163 or 157 represented the true record of the Court. These are the facts on which applicants rely. Counsel posed the questions, namely whether a single judge of the Court of Appeal can constitute a Court for the delivery of its judgment, or whether the Court must be properly constituted in accordance with s.226 of the Constitution for the purpose.

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Counsel in his submission answered that the Court of Appeal must be constituted in accordance with s.226 for the purpose of the exercise of its jurisdiction which includes delivery of its judgments. Counsel then submitted that the provision of s.10 which vests jurisdiction in a single justice of the Court of Appeal is inconsistent with the provisions of the Constitution. He cited Nwobodo v. Onoh and others (1984) 1 S.C. in the view of Counsel, the provision of S.258(1) is mandatory, and the requirement that copies of the judgment shall on the delivery thereof be given to the parties, if not satisfied, is a contravention which rendered the judgment a nullity.

Mr. Okonkwo for the 1st set of respondents did not share the view of Chief Onyiuke. He argued that the intendment of the Constitution is different. Referring to S.258(2) where the judgment of the one judge can be read by any other justice of the Court, he submitted that S.253 coming subsequent to s.226 would seem to have provided to the contrary. In his view, once a judgment has been written, agreed upon and signed, the matter of pronouncing it should not concern the constitution of the Court. Finally on the construction, it was submitted that as long as the judgment has been agreed upon, written and signed by the composition of the members who heard the appeal, it need not be read by the same number.

On the facts, it was submitted on the presumption of regularity of the proceedings of the court below, that ex facie the record of appeal, everything about the judgment is regular. Counsel referred to page 157 of the record of appeal where the judgment was dated 15th August, 1980. He submitted that the assertion that page 165 of the record of appeal represents the correct position cannot be supported.

Mr. Clement Akpamgbo for the 2nd set of respondents adopted Mr. Okonkwo’s submissions and added that s. 258(2) is a saving provision. He referred to the order drawn up at page 164 of the printed record of appeal, and pointed out the relevance of the use of the word “we” in the Order. He, like Mr. Okonkwo, referred to the case of Attorney-General of Imo State v. Attorney-General of Rivers State (1983) 2 S.C.

In a short reply Chief Onyiuke further submitted that a judgment is not valid until pronounced, and this must be done by the body constitutionally empowered to do so. He cited and called on the English case of Holtby v. Hodson (1889) XXIV C.B.D. 103. He referred to the recent judgment of this Court in Ifezue v. Ibodugho (1984) 5 S.C. 79 at page 106, where the dissenting judgment adopted the view that the two limbs of S. 258(1) should be construed as mandatory. Finally, it was submitted that the proviso to Sub-section (2) of Section 258 is not also a proviso to Sub-section (1) of that section.

It seems clear from the approach of Counsel to the appellants in the determination of the issues raised, the assumption that the issue is entirely one of interpretation of the provisions of the Constitution, and the facts if accepted will result in the construction contended for. I think the approach adopted by Counsel to the respondents is more rewarding. The construction urged must rest on estahlished and accepted facts. Whether only the Hon.

Justice J.A. Phil-Ehosie, J.C.A. sat and delivered the judgment in issue or whether the other Justices named sat with him is a question of fact. It is only after this fact has been ascertained will a construction of the provisions of s.226 and 258(1) of the Constitution be relevant.

Before the issue is decided it is necessary to peruse the record of appeal and to discover on the face of the record whether the factual situation will support the grounds of law urged.

On a careful perusal, it will be observed that the judgment of the Court starts at page 157. It was dated 15th day of August, 1980 and was stated to be JUSTICES, John Aniemeka Phil-Ebosie, Alfa Belgore, and Adenekan Ademola. At the conclusion of the judgment at page 168, it was signed by J.A. Phil-Ebosie, who read the judgment, and also by A. Belgore and A. Ademola, who both concurred. Page 164 like pages 157 and 163 clearly indicate the judges who were present. On the same day, as disclosed at page 165, the appeal was stated to have been listed before Hon. Mr. Justice J. Phil-Ebosie, J.C.A. alone. Respondents were indicated as absent and that a telegram had been dispatched to them and their Counsel informing them of the fixture. It was also stated that the judgment was read by “me” and was signed by J.A. Phil-Ebosie as the Presiding Justice on the 15th August, 1980.

It is that part of the record that led Counsel for the appellant to rely so much on the contention that the judgment was read by Hon. Justice J. A. Phil-Ebosie alone without other justices indicated at pages 157 and 163 of the record of appeal. Where an appellant contends that the evidence relied upon is otherwise than as it is on the record or seeks to introduce further or additional evidence viva voce or by affidavit, he may apply to this Court indicating the circumstances prescribed in Order 7, Rule 26 (3), Rules of the Supreme Court 1977. If he establishes a good case, leave may be granted for him to do so. see Asaboro v. Aruwaji and Ors. [1974] 1 N.M.L.R. 414. State v. Gwonto and Ors (1983) 3 S.C. 62, 103, 104-105, 107-109. There has been no such application in this case. A strong inference which leads to the conclusion that pages 157-163 represent the true position, could be drawn from the statement at p. 165, that a telegram had been sent to Counsel for the respondents and the respondents, informing them of the date of the fixture. It seems to me, as was clearly indicated, that at time only Mr. F.S.C. Unigwe, Counsel for the appellant, was present. Later, as it was also indicated at page 163, G.N.A. Okafor appeared as Counsel for the 1st set of defendants, and Mr. J.H.C. Okolo, as Counsel for the 2nd set of defendants. As in page 165, Mr. F.S.C. Unigwe appeared for the appellants. Counsel for all the parties were present.

It is clear that Hon. Justice J. A. Phil-Ebosie, J.C.A., read the lead judgment which was the judgment of the Court, A. Belgore, and A. Ademola merely concurred. If the judgment had been read by Mr. J. A. Phil-Ebosie, J.C.A. alone and with only Mr. F.S.C. Unigwe appearing as was indicated at p. 165, the question of Counsel for the two sets of respondents being indicated as having appeared and A. Belgore and A. Ademola concurring would not have been part of the record. There is no evidence that it is otherwise. I accept the submission of Messrs Okonkwo and Akpamgbo for the respondents that pages 157-164 of the record represent the correct position. Accordingly, the judgment was read by a Court properly constituted with three justices in accordance with Section 226 of the Constitution. It is therefore hypothetical and unnecessary to consider the issue whether less than three justices of the Court of Appeal can deliver a judgment of the court. We were invited to consider whether s.10 of the Court of Appeal Act 1976 is not inconsistent with the provisions of s.226 of the Constitution 1979. S.10 empowers a justice of the Court of Appeal to deal with interlocutory applications. This issue does not even remotely arise in this appeal. It is therefore a useless exercise to embark upon such a hypothetical issue.

On the second limb of the argument that copies of the judgment of the Court were not furnished on the delivery thereof, this is a point already settled by this Court in Ifezue v. Mbadugha (1984) 5 S.C. 79 cited to us by Counsel. As was pointed out in that case in the judgment of Irikefe, J.S.C. at p. 31,

“the majority and minority versions of this judgment share agreement in the following areas, namely,

(a) Every court within the intendment of Section 256(1) would encompass such courts within the purview of Section 6 of the Constitution-and undoubtedly the State High Court, the Federal High Court, the Court of Appeal and the Supreme Court.

(b) The requirement to furnish an authenticated copy of a judgment at the time of delivery is, in view of logistics involved in getting up a judgment that is taking into account the vagaries of a third world country, merely directory and not mandatory. By this I mean that it would be unrealistic to hold otherwise as it cannot be seriously argued that irreparable harm would be done by not having the judgment supplied on that day.”

This court therefore held that failure to furnish copies of judgment to parties on the date of the delivery of such judgment does not in any way affect the validity of the judgment. (See also the judgment of Obaseki, J.S.C. at p. 130 Eso, J.S.C. at p. 139-140).

There is no doubt that the failure to furnish copies of judgment to parties after delivery is an act subsequent to the delivery thereof and cannot reasonably be regarded as retrospectively affecting acts validly made prior to such a failure. The intendment of Section 258(1) is essentially to discourage excessive delays before the delivery of judgment after final addresses by Counsel in the case and to avoid the resulting effect on the nature and quality of the judgments delivered thereafter – (see Awobiyi & Sons v. Igbalaiye Brothers [1965] 1 All N.L.R. 163 at p. 166 ; Lawal v. Dawodu [1972] 1 All N.L.R. (part 2) 270 at p.279; Akpor v. Iguoriguo (1978) 2 S.C. 115 ; Ariori and Ors. v. Elemo and Ors. (1983) 1 S.C. 13).

It is, at least, for the time being settled that failure to furnish parties with copies of judgment after delivery thereof does not affect the validity of the judgment delivered not later than three months of the conclusion of evidence and final addresses. The application argued fails and is hereby dismissed. There is therefore a valid judgment of the Court of Appeal, in this case from which an appeal can lie to this Court. I therefore decline to discuss the issues concerning the interpretation of the Constitution raised which for the reason I have given is not necessary for the determination of this application.

Applicant shall pay N300 as cost to the respondents.

Appeal Dismissed.


SC.157/83

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