Benjamine Daminabo Iwo & Ors V. Hubert Ockiya & Ors (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

May, 1977 two suits nos. PHC/74/75 and PHC/173/72 before the High Court of Rivers State were consolidated by order made by Pepple, J. with the further order that-

“plaintiff in PHC/74/75 shall be plaintiff in the consolidated action. Since he has already opened his case.”

The trial of the consolidated suits proceeded accordingly. On 30th March, 1981 counsel for the parties concluded their final addresses in the consolidated suits. Judgment was then adjourned to 23rd April, 1981. There was no minute of any proceedings on 23rd April, 1981.

The judgment in the consolidated suits was however delivered on 14th September, 1981 – five months, 15 days after the conclusion of final addresses on 30th March, 1981. The judgment is at pages 161 – 176 of the Record of Appeal.

On 24th November, 1981 the Appellants lodged their appeal against the judgment with four (4) original grounds of appeal. Two more additional grounds of appeal were filed by order/leave of this Court granted on 21st September, 2000. According to the recital (xxiv) in the Amended Brief of Argument of the Appellants (at page 6 thereof) –

The Honourable Court on 21.9.2000 granted the application, which was dated 26.10.99 but filed on 27.10.99, for the amendment of the Grounds of Appeal, which was thereafter filed and served within 14 days. –

One of the additional grounds of appeal reproduced in the Amended brief of argument of the Appellants at page 7 thereof complains that the learned trial Judge erred in law in delivering judgment in the consolidated suits on 14.9.81 in violation of section 258 (1) of the 1979 Constitution of the Federal Republic of Nigeria, then in force. As earlier stated, he judgment was delivered 5 months 15 days after the final addresses.

Section 258(1) of the -1979 Constitution allegedly violated provided thus –

Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses and furnish all parties to the cause or matters determined with duly authenticated copies of the decision on the date of delivery thereof.

The complaint in the appeal is only in respect of the first limb of section 258 (1) of the 1979 Constitution above reproduced.

Borrowing Aniagolu JSC’s preface in IFEZUE v. MBADUGHA (1984) NSCC 314 at 317 – “The outcome of the appeal hinges on the interpretation of section 258 (1) of the 1979 Constitution. Although the grounds of appeal encompass other issues of law and facts, the interpretation of section 258 (1) becomes the dominant issue in the appeal because should the Appellants’ arguments on it be accepted, no useful purpose, other than fanciful academic peregrinations, would be served by going through the facts and issues of law arising therefrom.” I am guided accordingly.

The appeal was heard on 9th June, 2009 only on the Amended Appellants Brief dated and filed on 14th April, 2003, upon leave to that effect granted on 14th February, 2007. The only remaining Respondent did not file any brief of argument. On 10th February, 2003 the 1st Appellant, Benjamin Danimabo Iwo, and all Respondents, except the present Respondent who was the 4th Respondent, were struck off the appeal as they were reported to have all died. On 9th June, 2009 upon the report of the bailiff that the only remaining Respondent, Igbani Aggo, was on 2nd June, 2009, served hearing notice for the day’s proceedings but the said Respondent nonetheless decided to be absent we heard the appeal only on the amended Appellant’s Brief. Mr. D.A. Toby of counsel for the Appellants identified and adopted the Amended Appellant’s Brief dated and filed on 14th April, 2003 leave for the filing of which was granted on 14th February, 2007. Three issues for determination were formulated out of the 7 grounds of appeal, including the additional grounds of appeal. As I earlier indicated, I will first take the issue formulated from additional ground (f) to wit –

whether the trial Court’s judgment delivered 5? months after final addresses is not null and void?