Malam Hassan Alh. Saidu & Anor V. Malam Bukar Haruna Pelo Ola (2016)

LawGlobal-Hub Lead Judgment Report

JOSEPH TINE TUR, J.C.A.

I tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a ?decision? to means, ?in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?Ruling? is omitted in the definition of ?decision? under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that, ?When the nature of things changes, the rules of law must change too.?
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of

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change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag this determination an ?opinion? or a ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
?I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.?
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word ?determination? at pages 243-244 as follows:
?We gave careful consideration to the argument of Chief

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Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In this section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means

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?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
?(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more than one

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Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.?
Section 318(1) of the Constitution (supra) defines a ?decision? to mean, ?in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?ruling? is omitted from the definition of ?decision?. I have decided to tag this determination ?Decision? as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.

The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of ?decisions? or ?opinions? Justices of the Supreme Court or the Court of Appeal renders which constitutes the ?determination? of these appellate

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Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.
I shall now consider this application on the merit.
The remedies claimed by the appellants/applicants are set out in the motion on notice filed on 8th March, 2016 as follows:
?(a) Extension of time within which to seek leave to appeal against the judgment of the Borno State High Court, Maiduguri delivered in its appellate jurisdiction on 3rd December, 2015 in suit No.BOHC/BU/CVA/1/12 ? Malam Hassan Alh. Saidu & Anor. vs. Malam Bukura Haruna Pelo Ola.
(b) Leave to appeal on grounds of facts and mixed law and facts against the aforesaid judgment.
(c) Extension of time within which to file the Notice and Grounds of Appeal on grounds facts and mixed law and facts against the aforesaid judgment in terms of the attached Proposed Notice and Grounds of Appeal.
(d) AND FOR SUCH further order(s) as this Honourable Court may deem fit

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