Asani Kosebinu & Ors. V. Misiri Alimi & Ors. (2005)

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D. MUHAMMAD, J.C.A.

By their Writ of Summons dated 30th October, 1990, the Respondents in the instant appeal, commenced Suit No.ID/2140/90, against the Appellants at the Lagos State High Court. The claims by the former against the latter per their amended writ of summons are for:

“(i) A declaration that the parcel of land delineated in Plans Nos. LA/127/CA/88 and LA/I44/LA/88 drawn by in Ademola Ashipa belongs to the Plaintiffs’ family.

(ii) An injunction restraining the Defendants by themselves, their servants or against or otherwise howsoever from further acts of trespass on the said land.

(iii) The sum of N5000.00k being damages for trespass committed by the Defendants jointly and severely against the Plaintiffs farmland on 12th October, 1990, by destroying the cassava, maize, tomatoes, Okro, pineapples and kolanut trees cultivated thereon.”

The Suit proceeded to trial at the end of which on 16th May, 2001, the Court reserved judgment till 27th of June, 2001. Judgment was eventually entered for the Respondents a day later on 28th June, 2001. As events preceding the delivery of the judgment form the basis of the crucial issue raised in this appeal, the significance of those events have necessitated their reproduction, hereunder, from page 180 of the records of Appeal thus:

“Court. This is the second day that this judgment could not be read in open Court, because there was no electricity in the Court room. We therefore, decided with consent of the parties’ counsel to read it in chambers. It is also agreed resently (sic) by statutory order (sic) that judgment must be read within 3 months overrides the procedural rule under Order 38 (rule 1 and 2) that judgement must be read in open Court. Finally, even though the judgment is read in chambers anyone who feels bad about that method may have to convince the higher Court that he has been preferred (sic) by that method”.

The Defendants being dissatisfied with the decision of the Court have appealed to this Court on an amended notice containing six grounds. The sixth ground of Appeal from which the crucial issue in the appeal is distilled reads:-

“(f) The learned trial Judge erred in law, when he delivered the judgment in chambers and not in open Court in breach of mandatory constitutional duty to read judgment in open Court and thereby occasioned miscarriage of justice.

Particulars

(i) The duty to deliver judgment in open Court is imposed by the Constitute of the Federal Republic of Nigeria.

(ii) Parties by consent cannot waive a Constitutional duty and confer right on the Judge to deliver judgment in chambers in breach of Constitutional provision.

(iii) The absence of electricity in the Court is not reasonable cense for reading judgment in chamber”.

Appellants have formulated four issues from their six grounds of appeal for the determination of the appeal. The issues read:-