Chief Dominic Onuorah Ifezue V. Livinus Mbadugha & Anor (1984) LLJR-SC

Chief Dominic Onuorah Ifezue V. Livinus Mbadugha & Anor (1984)

LawGlobal-Hub Lead Judgment Report


The outcome of this 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 which were argued before the Federal Court of Appeal, the interpretation of section 258(1) becomes the dominant issue in the appeal because should the appellant’s 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 therefore.

Before, however, embarking upon this main issue, it is perhaps worth the while to set out in a brief outline the facts of the case between the parties bringing about this litigation.

There is a house situate in Block 44, plot 18 at Onitsha commonly known as No. 12 Anyaegbunam Street, Fegge, Onitsha. The plot of land on which this house was built was the subject of a grant to the plaintiff/ appellant from government for a period of 40 years commencing from 1st January 1961. It was the appellant who erected the building on the plot of land. It contains ten rooms, four of which he occupied himself and the rest he let out to rent-paying tenants. The army took over the occupation of the house paying rents to the plaintiff. In 1973 the plaintiff gave a power of attorney (exhibit 5) to one J.U. Okeke, by reason of the fact, as stated by him, that he was travelling overseas, for Mr. Okeke to administer, manage, superintend the management, of the building which power to sub-let, mortgage, assign to himself or to any other person or persons the plot and the building. The power of attorney was stated to be given in consideration of an agreement for sale, in order to facilitate the carrying out of the contract which was said to be irrevocable. The plaintiff handed to the said Mr. Okeke the original dead of lease.

Later on 5th October 1974 a receipt (exhibit 4) was issued by Mr. Okeke to the plaintiff acknowledging payment by the plaintiff to Mr. Okeke of a sum of N8,500.00 stated there to be “consideration in respect of the revocation of the power of attorney granted to him in respect of No. 12 Anyaegbunam Street, Fegge, Onitsha. ”

On the same day, the said J. U. Okeke in turn gave to the plaintiff/ appellant an irrevocable power of attorney, clause 5 of which stated that

“this power of attorney is necessary and given because an agreement for the sale of the plot as expressed in paragraph 11 of the power of attorney dated the 4th day of August 1973 fell through and was abandoned by mutual consent by myself and Chief Ifezue.”

This instrument was not registered until 7th June 1977.

The appellant did not assign the plot to J.U. Okeke. Equally, J.U. Okeke did not at any time exercise the power granted to him under the original power of attorney which the appellant gave to him, to assign the property to himself or to any other person. But, he did exercise the power of mortgage contained in the instrument by mortgaging (exhibit 10) the property to a bank- a mortgage in which he described the property to be his own-as security for a loan. While the mortgage was still subsisting, Okeke became a judgment debtor to the form of C.F.A.O. in Suite 0/174/ 73. He applied to court by motion for instalment payment of the judgment debt in the said suit 0/174/73, and in his affidavit in support named the house as his property. His creditors later applied for and obtained the leave of court to levy execution against the house as property of J. U. Okeke. The court gave leave for the property to be attached and a subsequent order of court gave leave for the property to be sold.

In April 1975 the property was sold by order of court by the Deputy Sheriff, Onitsha, to the 1st defendant (Livinus Mbadugha) for a sum of N8,360.00. Thereafter, at the request of the Registrar of the court, Mbadugha paid an additional sum of N444.73 claimed by the bank to write off their mortgage transaction with Okeke on the property. The Registrar then issued a certificate of purchase (exhibit 7) dated 3rd May 1975 to Mr. Mbadugha. The Ministry of Works and Housing approved in principle the transfer of the property to Mr. Mbadugha (exhibit 8).

The transfer in fact had not actually taken place. It is to be noted that the appellant took no part in the enforcement proceedings in the suit 0/174/73 nor did he interplead when the property was attached. There was also no direct evidence that he knew of the case, 0/174/73, or of the attachment of the property until the 2nd day of May 1977 when he filed in court an affidavit (exhibit 6) in which he stated that he had just learnt of the proceedings in 0/174/73 and that the attached and sold property belonged to him and not to Mr. J. U. Okeke. On 2nd May 1977 he filed this suit in the Onitsha High Court claiming:

(i) That he was the lessee of the Government of Anambra State of the property in question;

(ii) An order setting aside or declaring void the purported sale of the property by the Deputy Sheriff, Onitsha, to Livinus Mbadugha;

(iii) An order of injunction restraining Mbadugha and the Deputy Sheriff from interfering with the property, and

(iv) N2, 000.00 damages for inconvenience and embarrassment.

These were the background facts of the case the knowledge of which, strictly speaking, is not necessary for the determination of the main legal issue on which this appeal is to be decided. It is however narrated for the purpose of completeness.

Section 258(1) of the 1979 Constitution the bone of contention-reads:

“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 matter determined with duly authenticated copies of the decision on the date of delivery thereof’.

For the purpose of this appeal all counsel in the appeal, including Chief F. R. A. Williams, S.A.N., who appeared by leave of court as amicus curiae, have joined issue on the interpretation of the said s.258(1) of the Constitution. What went on in the Court of Appeal by reason of which the provisions of the said section 258(1) are being invoked (and there is no dispute on this) was as follows:

On Monday the 23rd day of March 1981 the appeal came up for hearing before the Federal Court of Appeal (Aseme, Belgore and Olatawura JJ.C.A.). Counsel argued the appeal which was adjourned to 26th March 1981 for continuation of hearing. At the conclusion of hearing on the said 26th March 1981 the court adjourned for judgment with these words:

“Judgment reserved”.

Three months from 26/3/81 would have brought the matter to 26th June 1981. But nothing was heard of the appeal until 9th November 1981 when the records show that it was resumed on that day JUSTICES. The appeal was then further adjourned to 16th November 1981 on which day the appeal was reopened by court in these words: Appeal is reopened and learned counsel are asked to address the court whether order of non-suit is desirable in the circumstances of this case. ”

Be it noted that on the said 16th November 1981 the undelivered judgment was then 7 months and 3 weeks away from the date (26/3/81) on which the appeal was reserved for judgment. The question poses itself: Had the court the power-indeed, the jurisdiction- to “re-open” the appeal after the expiration of the three months stipulated in the Constitution for the delivery of judgments The answer to this question will come later in the course of this judgment.

After the re-opening, counsel put forward fresh arguments, adopting, in addition, their earlier arguments. Mr. Okolo, counsel for the then defendant-appellant, urged the court to dismiss the plaintiff”s case, and allow their appeal, while Dr. Ume who was appearing for the plaintiff pleaded with the court to uphold the judgment of the High Court and dismiss the defendant’s appeal. The court then, immediately thereafter, delivered its judgment and non-suited the plaintiff. It was from this non-suit judgment that the plaintiff (appellant) has appealed to this Court.

Appellant filed 11 grounds of appeal on various and diverse matters but I will only set out one ground-namely ground 1-as only that ground of appeal is necessary for the only issue which now calls for a decision. It reads:

“(1) Error in Law.

The learned Justices of the Federal Court of Appeal erred in law by giving (sic) judgment in this case contrary to Section 258 of the Constitution of the Federal Republic of Nigeria 1979

Particulars of Error

(i) The learned Justices of the Federal Court of Appeal after argument and reply by counsel for both parties on 23/3/81 and 26/3/81 respectively, adjourned the case for judgment. No judgment was given within the constitutional stipulated period of three months.

(ii) After the said period the learned Justices continued with the case and gave judgment on the 23rd day of November 1981, non-suiting the plaintiff/appellant, contrary to the views openly expressed by the learned Justices on the day when the addresses by counsel were concluded.

(iii) The delay in delivering the judgment operated adversely against the interest of the plaintiff/appellant and affected the justice of the case.

(iv) Throughout the proceedings before the said adjournment for judgment, the question of non-suit was never raised either by the court or any of the parties. Counsel were not asked to address the court on the issue or point.”

I am strictly not concerned here with sub-paragraphs (iii) and (iv) of the above particulars. I shall only concern myself with sub-paragraphs (i) and (ii) which are specifically germane to the issue.

I shall endeavour to narrate the argument of counsel, both from their briefs and orally before us, as succinctly as possible.

DR. UME, posed many questions in his brief respecting the re-opening of the appeal by the Court of Appeal; the question of non-suit; the failure of the Court of Appeal to appreciate that J. U. Okeke neither had a grant of a lease of the house from government nor an assignment to him of the lease; and the question whether the Court of Appeal had power to act contrary to the provisions of Section 258 of the Constitution either by re-opening the appeal or delivering the judgment after three months of the conclusion of evidence and final addresses. To these questions Dr. Ume answered in the negative.

He contended that the Court of Appeal was one of the courts contemplated in “Every court” mentioned in Section 258(1) and that it was bound by the Constitution to deliver its judgment within 3 months of the conclusion of evidence and final addresses; that it was a creature of statute and could not act outside the statute creating it; that there was no provision in the Court of Appeal Act creating the court (see No.43 of 1976) or in the Court of Appeal Rules (see Section 1. 10 of 1981) empowering the court to reopen a case “suo motu” after it had adjourned for judgment. But, on a second thought and upon further reflection, Dr. Ume conceded that the court could reopen an appeal and hear further argument but that must be done within 3 months as stipulated in Section 258(1). He argued that the power of the Court of Appeal relating to reserved judgments is no more than as contained in 8.11 of the Court of Appeal Act and that the Court has no power to act outside that section. He further contended that the Constitution was the organic law of the land which must be obeyed; that it was not an ordinary Law; that S.258(1) uses the words “shall” and “not later than” and that these words are compulsive; therefore, the argument of counsel for the respondents (supported by counsel appearing amicus curiae) on whether the section is “mandatory” or “directory” is untenable. He finally submitted that the case of ATOLAGBE v. BUKANLA FCA/L/80/83 (unreported) cited by Chief Williams supported his argument. He, therefore, urged that this Court should set aside the so-called judgment of the Court of Appeal and remit the appeal to the Court of Appeal for a new and different panel of the Court to hear and determine the appeal within the 3 months stipulated by section 258 of the Constitution. PROF. KASUMU did not deal with S.258 in his main brief in which he dealt with the nature of the estate or interest in which Mr. Okeke possessed in the property consequent upon the power of attorney granted to him by the plaintiff/appellant and whether by reason of the subsequent revocation-power-of-attorney which Mr. Okeke granted back to the appellant he had any estate left in the property which was capable of being passed on to the first respondent, Livinus Mbadugha, by the auction sale conducted by the second respondent, the Deputy Sheriff. Interesting, legally, as an exploration in that direction would have been, the nature of the issue before us did not permit Prof. Kasumu to address us on that aspect of the appeal. It was his reply brief which concerned section 258(1) of the Constitution on which he based his address.

He took his argument on two limbs:

A. Whether Section 258(1) applies to all courts or only to courts of first instance which hear evidence

B. Whether the section is “mandatory” or “directory” On the first limb (A above) he argued that section 258(1) is aimed at speedy determination of cases when facts of the cases are still fresh in the minds of trial judges. Therefore, he urged that the section should be interpreted as applying to trial courts only, and not to appellate courts. He contended that the mischief which section 258(1) was aimed at was delay in the determination of cases and submitted that although reference is made in the section to “every court” the section goes further to limit it to courts which take evidence. He conceded that when there is an occasion for appellate court to sit in its original jurisdiction and hear evidence (the Supreme Court for example, under section 212 of the Constitution before the Military suspension in No.1 of 1984), section 258(1) could then apply to the appellate court for the .purpose of that exercise. Referring to AKPOR v. IGUORIGUO (1978) 2 S.C. 115 he stressed that the emphasis has been on the hearing and assessment of evidence. If, he submitted, those words in the section, namely, “after the conclusion of evidence and final addresses” had been framed by the makers of the Constitution to read ‘after the conclusion of evidence or final addresses’ there would then have been room for the section to be made applicable to both the courts which take evidence and to those which do not. On a clear reading of section 258 one should give effect, he said, to the words “EVIDENCE” and “ADDRESSES” as the key factors in that section.

Dealing with the second limb (B above), Prof. Kasumu argued that quite apart from the wording of the section, one should have reference to the mischief the section is aimed at. One should not lose sight of the fact that the section also requires that duly authenticated copies of the decision be supplied to the parties the same day of the delivery of the decision. The practical difficulties in supplying the parties with the said authenticated copies the same day of the delivery of the judgment, make clear, he argued, that the section is directory only and not mandatory, and called in aid the opinion of the learned author of CRAIES ON STATUTE LAW 7TH ED. P.250 to emphasize that point. He, therefore, finally submitted that if this Court agreed with his view that the section is directory and not mandatory, the Court of Appeal could hear further arguments after reserving judgment. He, however, agreed that this must be before the expiration of the 3 months period. CHIEF WILLIAMS (amicus curiae) prefaced his submissions by readily agreeing that some judges, few in number though, were in the habit of “preserving” their judgments instead of “reserving” them. The result is a long delay before judgments are delivered. Some delayed their judgments for as long as two years before delivery, resulting in the judge forgetting the facts and the impressionable nuances on the case. Chief Williams did not agree with Prof. Kasumu’s argument that section 258(1) does not apply to the appeal courts. His brief of argument-succinct, lucid and precise-is an epitome of his liberal (if not benevolent) interpretative approach to the subject. He pursues his argument from the standpoint that laws are made but laws are broken and there is no such thing as an unbreakable law. The effect of the breach or contravention of the law would vary according to the tenor of the law, and that it is not always, in our imperfect world, that the breach of a law invalidates all acts performed by a public authority on the strength of the law. Perhaps, better justice would be done to this part of his argument by a reproduction of a portion of the brief (page 2 paragraph 1.2) captioned: “Effect of Contravention of Statues Generally”. It reads:

“1.2 Effect of Contravention of Statutes Generally: The provision of section 258(1) of the Constitution which is to be considered in this brief requires all courts established by the Constitution to deliver their judgments within a period of 3 months after the conclusion of evidence and final addresses. There can be no doubt that the provisions of the section are meant to be obeyed and complied with. But there is no such thing as an unbreakable law. A law may be disobeyed or contravened for good reason or for bad reason or for no reason. The question which the courts have to face and determine include the following: What are the legal consequences of the breach or contravention of the law Does the breach or contravention render what was done by the public authority or other person null and void or does it leave what was done as aforesaid unimpaired or does it render it avoidable at the instance of a person interested Is the person who contravened the law liable to a penalty And so on and so forth. Lawyers have to consider such questions because, unfortunately, in our imperfect world, breaking of contraventions of laws occur often enough and it would be unrealistic to ignore them. The authorities show that there are situations in which the law says that what was done by a public authority in breach of a statute was null and void. There are yet other situations in which the law says that what was done by a public authority in breach of a statute leaves the act performed unimpaired. In the latter case it is a misconception to suppose that the application of the rule which leaves the act of the public authority unimpaired tends to render the law useless and ineffective. It will be seen that in cases where the courts have reached this conclusion, an interpretation which would invalidate the act of the public authority concerned is apt to defeat the intention of the law maker or to lead to injustice or absurdity or to advance rather than suppress the mischief aimed at by the law in question. If the law maker or the Legislature feels strongly enough about possible contraventions, it can and often does impose a penalty as sanction. But where no penalty is imposed the stipulation remains nonetheless binding like any other law. Like any other law however, it is liable to be breached. In this case the Supreme Court is faced with the legal consequence of a breach or contravention of the statute which happens to impose no penalty.”

He contended that if the true intention of the Constitution was to invalidate decisions delivered more than three months after addresses of counsel as argued by the appellant, then an interpretation of the provisions which enables them to be easily by-passed is certainly not one calculated to promote that intention. He conceded that where a court, after final addresses of counsel, announced adjournment of the case, it would be reasonable to assume that the adjournment was “for judgment” even if the trial judge did not specifically say so.

In the instant appeal, as shown by the additional proceedings later produced by appellant’s counsel, the adjournment on 26th March 1981 was specifically for judgment. Chief Williams, continuing his brief of argument, submitted that where there is a law prescribing the time within which a public duty is to be performed, the fundamental question is whether the law is mandatory, so that the failure to comply with the law renders the performance null and void, or merely directory, so that failure to comply does not render the performance null and void.

In the case of a mandatory law, performance in terms is imperative, absolute and obligatory. But not so where the law is “mandatory or directory”. Placing reliance on the statement of principle of Lord Penzance in HOWARD And Others v. BODINGTON (1877) 2 P.D. 203 at 210, Chief Williams submitted that in the case of a mandatory or directory enactment, although the provision may not have been complied with, the subsequent proceedings do not fail.

One of the tests ascertaining whether a law is mandatory or directory, he said, is to be found in paragraph 933 Volume 44 Halsbury’s Laws of England, 4th Edition, on STATUTES where it states that the practice has been to construe provisions as no more than directory if they relate to the performance of a public duty, and the case is such that to hold acts done in neglect of them null and void would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without at the same time promoting the main object of the legislature.

He therefore, urged that this Court, in interpreting section 258(1) of the Constitution, should adopt this approach, for the very reason that the materiality of the 3 months stipulated in section 258(1) relates to the pronouncement or announcement by courts of law of their decision in cases which come before them, and that although it is desirable that courts give their decisions as quickly as possible, yet it is more material that the courts give correct decisions than that they give decisions within prescribed times.

If in a case, for example, a recondite point of law is involved and a decision on that is pending before the Supreme Court, he argued common sense would dictate that it is better to await the judgment of the Supreme Court before a lower court decides the point even if by so doing there is a contravention of S.258 of the Constitution.

Given an option between the right of the parties to a correct judgment according to law on the one hand, and their right to have that judgment delivered within the prescribed time on the other, public interest dictates, he asserted, that the option must be exercised in favour of correct judgment according to law. By opting for a correct judgment according to law, he said, no substantial rights of either party would have been violated since, he submitted, the ultimate object of the law is to secure for the parties a correct judgment according to law.

He, therefore, strongly urged this Court to lean towards the interpretation which would construe section 258(1) of the Construction as merely directory, especially so as the second arm of the said section 258(1) requires the court, in addition to the delivery of the judgment, to furnish all parties to the case or matter determined with duly authenticated copies of the decision on the date of the delivery thereof. Although they were against his argument, Chief Williams quite properly referred to the decisions of the Court of Appeal in SUFIANHU and Others v. ANIMASHAUN And Others FCA L/ U80/82 delivered on 21st March 1983 and ATALOGABE v. BUKANLA (supra) delivered on 8th February 1984. In his oral argument, in amplification of his brief, Chief Williams contended that it must always be remembered that a legislature is entitled to make a law in the way that it wants.

When it wants to make a law of the nature of Section 258(1) it decides on whether or not it should attach a penalty. When it attaches no penalty, contravention, though actionable, does not nullify the act. Section 258(1), he stated, was made for the judges of the superior courts. A contravention of its provisions would be an infringement by the particular judge which, possibly, could rank as”misconduct” within the meaning of section 258 of the Constitution for a judge to “perpetually” flout the provisions. He referred to the CONCEPT OF LAW; 1961 Ed. at p. 34 by Professor Hart, and submitted that the Constitution must be read as a whole. There is a Judicial Service Commission among whose duty is to discipline judges for “misconduct”.

He finally referred to section 33(1) and (4) of the Constitution which confers rights on litigants for a determination of their cases “within a reasonable time”; THE PRESIDENTIAL CONSTITUTION OF NIGERIA by Professor Nwabueze, and submitted that section 258(1) of the Constitution, which deals with judges, when read together with section 33 all go to point to the fact that litigants are entitled to have their matters decided by the courts as expeditiously as possible. What is “reasonable time”, he stated, depends on the circumstances of each case.

The decision of the only issue in this appeal is, in my view, a very simple one once we return to basic principles and well settled canons of construction of statutes. The FIRST of these is that if there is nothing to modify, alter or qualify the language of a statute, it must be construed in the ordinary and natural meaning of the words and sentences used. The courts have adhered to this literal rule of interpretation since the 19th century as seen from the judgments of Jessel, M.R. in ATT.-GEN. v. MUTUAL TONTINE WESTMINSTER CHAMBERS ASSOCIATION LTD. (1876) 1 Ex.D 469 and Lord Fitzgerald in BRADLAUGH v. CLARKE (1883) 8 App. CAS. 354. The object of all interpretation is to discover the intention of the law makers which is deducible from the language used. Once the meaning is clear the courts are to give effect to it. The courts are not to defeat the plain meaning of an enactment by an introduction of their own words into the enactment as was done, wrongly, in D. E. OKUMAGBA v. W. G. EGBE (1965) 1 All N.L.R. 62 a process of judicial legislation. The same goes for agreements between parties (see: ANIMASHAWUN v. ONWUTA OSUMA & 2 Ors. (1972) 1 All N.L.R. 363 at 372) in respect of which courts are to ascertain what the parties meant by the words they have used-an ascertainment in which, unless there is manifest ambiguity or repugnance in those words (see: R. v. TONBRIDGE OVERSEERS (1984) 13 Q.B.D. 339 at 342), they are to be given their ordinary meaning. The salient words used by the legislature in the first part of section 258(1) of the 1979 Constitution are:

“Every court shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses.” “Month”, according to section 18(1) of the Interpretation Act, 1964. No.1 of 1964 is defined as meaning a month reckoned according to the Gregorian calendar. The SECOND canon of construction is that which is often referred to as the “Mischief Rule” which was formulated by the Barons of the Exchequer in 1584 in HEYDON’S CASE 3 Co. Rep. 7a at 7b as follows:

“that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

(1st) What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And (4th). The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the “makers of the Act, pro bono publico.”

Again, where there are two choices of interpretation, the courts must avoid the choice which would reduce the legislation to futility and should rather accept the other choice on the principle that the legislature would legislate only for the purpose of bringing about an effective result. So said Viscount Simon L.C. in NOKES v. DONCASTER AMALGAMATED COLLIERIES, LTD. (1940) A.C. 1014 at 1022 and to the like effect by Lord Shaw in SHANON REALITIES LTD. v. VILLE de ST. MICHEL (1924) A.C. 185 at 192, 193. The principle is often expressed in the maxim: ut res magis valeat quam pereat. To properly ascertain the mischief aimed at by a legislation it is sometimes helpful to look into the history of the legislation. It is not permissible for the courts in England to construe an Act of Parliament by the motives which influenced the legislature in passing the Act, but it is permissible for the courts to look into the history preceding the legislation in order to see whether the terms of the enactment are such as fairly carry out the object of the legislation with a view to giving effect to what the legislature intended. Hall V.-C. did this in ATT.-GEN. v. DEAN AND CANONS OF MANCHESTER (1881) 18 Ch.D. 596; Lord Blackburn did it in RIVER WEAR COMMISSIONERS v. ADAMSON (1877) 2 App. Cas. 743, and the Earl of Halsbury L.c. took a like course in EASTMAN PHOTOGRAPHIC MATERIALS CO. LTD. v. COMPTROLLER-GENERAL OF PATENTS (1898) A.C. 571. Eso, J.S.C., in his paper: “The problems of Interpretation and Application of the Provisions of the Constitution” delivered in March 1982, in Horin, cited the statement of Lord Wilberforce in Minister of Home Affairs v. Fisher (1980) A.C. 319 at 329 as representative of the attitude of the Commonwealth on the issue. He wrote:

“As of now, the present Commonwealth attitude would appear to be as stated by Lord Wilberforce in the case of the Minister of Home Affairs v. Fisher (P.C.)2 (1980).

The Law Lord laid down what he considered should be the rules of law applicable to the interpretation of a Constitution. He said’ A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.’ The historical setting preceding the enactment of section 258(1) of the 1979 Constitution was, as conceded by Chief Williams, that some judges became notorious for very long adjournments of judgments leading to a deprivation from them of the advantage of forming fair impressions of witnesses and evaluation of evidence. The inordinate delays became a subject of adverse comment in this Court in R. ARIORI And Ors. v. MURAIMO B. o. ELEMO & Ors. (1983) 1 S.C. 13 and before then had been as a matter of notorious fact, a matter of public outcry ventilated through public pronouncements and the mass-media. These delays were there, the existence of the earlier provisions in section 21(1) of the 1960 Constitution, No. 1652 of 1960 and section 22(1) of the 1963 Constitution, No. 20 of 1963 Constitution, of “a fair hearing within a reasonable time by a court.

notwithstanding. It was therefore no wonder that the Drafting Committee of the 1979 Constitution (sometimes referred to as the 49 wise men) should take a definite stand against such delays by making a provision which had the effect of tying the courts down to a definite period within which judgments must be delivered after the conclusion of evidence and final addresses. The “mischief” aimed at was clearly against delays in the delivery of judgments after the conclusion of hearing of cases, by the courts. Realizing that not much progress had been made by some courts by leaving the matter to the discretion of those courts by having the provision, in the earlier Constitution, of “A fair hearing within a reasonable time by a court”

the makers of the 1979 Constitution must have been determined to leave nothing to chance or to some tenuous and tortuous judicial interpretation as to what was “a reasonable time” and therefore came down with a distinctive definitiveness in stipulating the exact period. There is thus a clear difference between section 33 of the 1979 Constitution dealing with the right to fair hearing, with particular reference to sub(1) and (4) and section 258(1) which limits the definite period for the delivery of judgments in concluded cases. Whereas S.33(1) and (4) enjoin the courts to hear cases expeditiously, leaving the discretion to the courts, as indeed it must do, having regard to varying attendant circumstances that can befall a case in the course of hearing-availability of witnesses; illness of parties and witnesses, the pressure on the courts by reason of other cases to be heard; the strain on the judges who may thereby be compelled to be absent on one or other occasion; the indigence of parties resulting in their inability to finance promptly the monetary aspects of the litigation or criminal proceedings, and a whole host of other circumstances which may delay the hearing of a case or impede its progress- section 258(1) deals with the situation where the hearing of a case has been concluded, including the final addresses, leaving only the judgment to be delivered, a final assignment remaining with the trial judge only, who has only to make up his mind and give expression to it in a considered judgment. The suggestion that the provisions of section 258(1) are a mere extension of the provisions of section 33(1) and (4) and an application of them cannot, in my view, be well grounded. And this brings me to the argument whether the provisions of the first part of section 258(1) should be construed as Mandatory or Directory. The problem here is that section 258(1) has not declared what shall be the consequence of non-delivery of judgments within 3 months after the conclusion of evidence and final addresses, leaving room for the argument that to hold judgments delivered outside the 3 months’ period null and void would work serious general inconvenience or injustice to persons who have no control over the delivery of the judgments.

One thing, however, is certain: that an absolute or mandatory (sometimes also referred to as imperative) enactment must be obeyed or fulfilled exactly; but in the case of a directory enactment, it is sufficient if it be obeyed or fulfilled substantially. (See: WOODWARD v. SARSONS (1875) L.R. 10 C.P. 733 at 746-per Lord Coleridge, C.J.). In the case of imperative enactment the courts give effect to the provisions irrespective of consequences. Devlin, J. (as he then was) in ST. JOHN SHIPPING CRPN. v. J. RANK LTD. (1984) 1 Q.B. 267 at 282 was of that view when he stated that: “one must not be deterred from enunciating the correct principle of law because it may have startling or even calamitous results. But I confess I approach the investigation of a legal proposition which has results of this character with a prejudice in favour of the idea that there may be a flaw in the argument somewhere.” (See also: WARBUTON v. LOVELAND d. IVIE and Others (1932) All E. Reprint 589 at 591 per Tindal, C.J.). The position, of course, would be different where the statutory provision is susceptible of more than one meaning or the words are ambiguous in which case it would be necessary to consider the effects or consequences which would result from a particular interpretation bearing always in mind the mischief which the provisions are designed to prevent. (MAXWELL ON INTERPRETATION OF STATUTES 12th Ed. P. 105; GARTSIDE v. INLAND REVENUE COMMISSIONERS (1968) A.C. 553 at 612).

S.258(1) contains the words “shall deliver . . . in writing not later than 3 months. “These words appear to me to be commanding enough to be regarded as mandatory rather than directory, especially against the background of all that I have already stated in this judgment. The words are clear, positive and unambiguous and dictate that literal interpretation be given to them. To hold otherwise would, in my view, be for this Court to perpetuate the mischief intended by the legislators to be prevented by the enactment of that section. It is worthy of note that section 258(1) comes, in the Constitution, many sections after S.33 which deals with fair hearing within a reasonable time. Turning now to Professor Kasumu’s suggestion that section 258(1) should be made to apply only to courts of first instance which hear evidence, the section begins with the words.

“Every court established under this Constitution. ” Which are the courts established by the 1979 Constitution The Judicature comes under Part 1 of Chapter VII of the Constitution. Section 210 thereof creates the “Supreme Court of Nigeria”; while section 217 creates the “Federal Court of Appeal” which by the new Military Government dispensation Constitution (Suspension and Modification) Degree, 1984-Schedule 2 is now called the “Court of Appeal”; the “Federal High Court” was established under section 228; while the High Courts of the States were established by section 234. Apart from these traditionally recognised superior courts of record sections 240(1) and 245(1) also established the “Sharia Courts of Appeal of a State” and the “Customary Court of Appeal for the State” respectively. These clearly were the courts contemplated within the term “every court established under this Constitution” in section 258(1) and to imply, and import into the section, a distinction of courts which hear evidence and those that don’t, is, in my view, for the court to attempt to legislate by judicial interpretation. Clearly all the courts which I have referred to in the various sections of the constitution come within the ambit of the words:

“Every court established under this Constitution.” and are caught by the 3 months limitation period. Failure by any of those courts to give its judgment within the period required by the section, is a violation of the provision and the so-called judgment delivered outside the period is no judgment at all and, accordingly, null and void and entirely of no legal effect. It has been argued that to nullify such a judgment is to punish innocent parties. That argument is unacceptable because in every case where a judgment is set aside by an appellate court, some losing party suffers, by the appeal being decided against him. Such a subjective consideration should not, and will not deter an appeal court from deciding an appeal according to legal justice.

It is unnecessary to go through the recent decisions of the Court of Appeal as hereinbefore mentioned since I am in agreement with the ultimate results and the conclusions reached in those cases.

In conclusion, this Court has never shrunk, where the words of a statute so permit, from doing equitable justice by giving liberal construction to the provisions of a statute, especially where the liberties of the subject are concerned. In NAFIU RABIU v. KANO STATE (1980) 8-11 S.C. 130 at 149, Udoma, J.S.C., delivering the lead judgment of this Court, advocated a leaning to broad interpretation, “in response to the demands of justice

whenever possible”. This was what he said inter alia:

“And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.”

Idigbe, J.S.C., was of the same view, adding the rider “unless there is something in the con or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”

It is, however, always safer, to look objectively at the statute and to see if the literal interpretation is available. If it is, the duty of the court is to give it the literal interpretation, the consequences notwithstanding. In ADEGBENRO v. AKINTOLA And Another (1962) 1 All N.L.R. 442 where there was divided opinion, with Ademola, C.J.N. leading the liberal construction view (Bairamian and Taylor, F.JJ. agreeing with him) and Brett, F.J. (dissenting) adhering to the literal construction, the Privy Council (per Viscount Ratcliffe) settled the matter in favour of literal construction (1963) A.C. 614 at 626-633). Said Ademola, C.J.N. at page 456:

“I believe that the Constitution contemplated proceedings in the House as being the touchstone of whether the Premier (and his Government) commands the support of a majority of the members or no longer commands such support. I think that the House of Assembly cannot be relieved of its responsibilities and duties as the House by a letter to the Governor signed by members of the House. It will be an unduly narrow and restrictive interpretation of the powers of the House, and a correspondingly unduly wide interpretation of the powers of the Governor, if in the circumstances, section 33( 10) is interpreted in any other way except in a way which makes it clear that the evidence emanates from proceedings of the house.”

The contrary view was expressed by Brett F.J., adhering to the literal interpretation at pages 458 to 459, as follows:

“No doubt that clearest way in which it can possibly appear that the Premier no longer commands the support of a majority of the members of the House of Assembly is by an adverse vote, or a series of adverse votes, of the House itself either expressly on the issue of confidence or on some other matter or matters of sufficient importance.

That is the orthodox source of information and preferable to any other when it is available, but it does not necessarily follow that it is the only source from which the fact may lawfully become apparent to the Governor, particularly in a Region where the House of Assembly is less continuously in session than the House of Commons of the United Kingdom.

To take an extreme example, suppose the Premier quarrels with his political associates to such an extent that all the other Ministers resign and he can find no members of the House of Assembly willing to serve on the Executive Council; or suppose that there is a coalition government dependent on the support of two political parties, the parties fall out, all the Ministers from one party resign, and it is announced that that party will unite with a third party in opposing the Premier and his government. Suppose in either case that the House of Assembly has been prorogued and that the Premier declines to advise that it should be convened, so that its views may be known.

If these events occurred shortly after the passing of the annual Appropriation Act, a Premier who was obstinate to the point of perversity might try to remain in office for a further twelve months or so.

In such an exceptional case I cannot see why, for the purposes of section 33(10) of the Constitution, the Governor should not be allowed to know what everyone else in the Region knows, and exercise his discretion as the public interest requires, even if it means that he has to rely on information extraneous to the proceedings of the House of Assembly in deciding whether the Premier still commands the necessary support as well as in deciding whether any other person who might be appointed Premier would be likely to command it.”

As Fatayi-Williams, C.J.N., had observed in CHIEF OBAFEMI AWOLOWO v. ALHAJI SHEHU SHAGARI And Others (1979) 6-9 S.C. 51 at page 64, authorities are often cited in favour of one interpretative proposition or another leading sometimes to doubts and vagueness in interpretation, yet in the con of Nigeria with its proliferation of Decrees, it would be safe to adhere to a literal construction. At pages 64 and 65 he had this to say “In the con of Nigeria, where the rate of promulgation of Decrees has been prolific during the last few years, it would be safe to adhere to the view once expressed by the late Lord Evershed, M.R., that ‘the length and detail of modem legislation has undoubtedly rein forced the claim of literal construction as the only safe rule.’ ”

There is no doubt in my mind that the framers of our section 258(1) intended that section to be binding on our courts by reason, obviously, of the interminable delays to which, in the past, litigants were subjected in the courts. As was pointed out in SENATOR ABRAHAM ADE ADESANYA v. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA And Another (1981) 5 S.C. 112 at 134 the courts have a duty when interpreting the provisions of the 1979 Constitution to look at the Constitution as a whole and construe the provisions in such a way as not to frustrate the “hopes and aspirations” of those who have made the strenuous efforts to provide the Constitution for the good government and welfare of all persons in the country on the principles of freedom, equality and justice.

Finally, having regard to all the foregoing, I am firmly of the view that on a proper construction of the words of section 258(1) of the constitution, having regard to the mischief intended to be prevented, the 1979 Constitution required that the judgment of the Court of Appeal in this matter be delivered within three months of its being “reserved” by that court, after the hearing of the appeal and that failure to do so invalidated the so-called judgment delivered after that period. The appeal must be allowed and is hereby allowed. The so-called judgment is declared null and void and, for the avoidance of any doubt, is hereby set aside. The appeal is remitted to the Court of Appeal, before a different panel, for hearing and determination, according to law.

The appellant is entitled to the costs of this appeal which are hereby assessed N300.00.

Other Citation: (1984) LCN/2223(SC)

Published by

LawGlobal Hub

LawGlobal Hub is your innovative global resource of law and more. Among other things, we ensure easy accessibility to the laws of countries around the world.

Leave a Reply

Your email address will not be published. Required fields are marked *