Misiri Alimi & Ors V. Asani Kosebinu & Ors (2016)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the decision of the Court of Appeal, Lagos Division which set aside the judgment of the High Court of Lagos State that was delivered in the chambers of the learned trial Judge, E. F. Longe J.
The respondent as plaintiff claimed against the appellant as defendants as per their Amended Writ of Summons dated 30th day of October, 1990 thus:
- A declaration that the parcel of land delineated in plans Nos. LA/127/CA/88 and LA/144/CA 88 drawn by in Ademola Ashipa belongs to the plaintiff’s family.
- The sum of N5,000.00k being damages for trespass committed by the defendants jointly and severally against the plaintiff’s farmland on 12th October, 1990 by destroying the cassava, maize, tomatoes, okro, pineapples and kola-nut trees cultivated thereon.
- An injunction restraining the defendants by themselves, their servants, howsoever from further acts of trespass on the said land.
BACKGROUND FACTS
The appellants’ claim as per the Amended Writ of Summons before the trial Court are for declaration of title to land, injunction and damages for
1
trespass.
The appellants sued in representative capacity and the respondents were also sued in representative capacity.
The appellants filed an Amended Statement of Claim dated 13th December, 1994 and filed an Amended Reply dated 12th February, 1992. The respondents filed an Amended Statement of Defence dated 19th January, 1998.
At the trial, the appellants called 9 witnesses whilst the respondents called 6 witnesses. Upon the close of the defence both counsel delivered final addresses and judgment was reserved for 28th February, 2001. Judgment was not delivered on that day, the learned trial judge delivered a pre-judgment Ruling wherein he ordered counsel to further address the Court on an area of conflict. In compliance with the pre-judgment both counsel further addressed the Court on 16th May, 2001.
At the close of the further addresses of both counsel, the learned trial judge ordered a visit to the locus suo motu. Parties and their respective counsel went to the locus with the learned trial judge. At the locus, the trial judge made personal observations and took Statements from people thereat. The learned trial judge thereupon
2
reserved judgment for 27th June, 2001. Judgment was not delivered on 27th June, 2001, but on 28th June, 2001. Same was delivered in the chambers for the learned trial judge for the reason that there was power outage.
In Chambers of the learned trial judge, he recorded the appearance of parties and counsel and stated in writing why he was delivering the judgment in his chambers.
The defendants/respondents being dissatisfied with the judgment appealed to the Court of Appeal, Coram: K. B. Aka’ahs, M. D. Muhammad and M. L. Garba JJCA and in a lead judgment delivered by M. D. Muhammad JCA (as he then was) set aside the judgment of the trial High Court on the ground that a judge’s chambers was outside the constitutional provision of a public place where the judgment could be delivered.
The appellant aggrieved has come before the Supreme Court challenging the decision of the Court of Appeal contending that the Judge’s Chambers was in order for the delivery of the judgment. The respondent cross-appealed.
On the 26th day of April, 2016 learned counsel for the appellant, I. O. Ajomo Esq. adopted the Brief of Argument filed on the 28/2/2006 which
3
was settled by Titiola Akinlawon. In the Brief were distilled three issues for determination which are thus:
- Having tacitly found that the Judge’s chambers in the case at hand was accessible to the public, whether the Court of Appeal was guilty of a fatal misdirection or error, not to have categorized the chambers as a public place for purposes of Section 36(3) of the 1999 Constitution, simply because it was not ordinarily accessible (Grounds ii and iii).
- Should the Court of Appeal have applied the decision in Oyeyipo v. Oyinloye as opposed to misapplying the decisions in Nigeria Arab Bank v. Barri Engineering, Oviasu v. Oviasu and Abrashi v. COP (Grounds i, iv, v, vi).
- Assuming “arguendo” that delivery of the judgment in chambers was a breach of the Constitution, what order ought the Court of Appeal have made in the circumstances (Grounds vii).
Otunba Kayode Ogunjobi learned counsel for the respondent adopted their Brief of Argument filed on the 7/2/08 and deemed filed on the 6/5/09 and he raised three issues for determination, viz:
- Whether the Court of Appeal was right to have set aside the judgment of the Lower Court
4
delivered in chambers in violation of Section 36 (3) of the Constitution of the Federal Republic of Nigeria, 1999.
- Whether the Court of Appeal was right in applying Nigerian Arab Bank v. Barri Engineering, Oviasu v. Oviasu and Abrashi v. COP as opposed to Oyeyipo v. Oyinloyeand whether the Court correctly applied the cases.
- What is the effect of a judgment delivered in breach of constitutional provision.
I need to state that the respondents cross-appealed and argued the cross-appeal in their Brief of Argument earlier referred to in the main appeal that is the Brief filed on 7/2/08 and deemed filed on the 6/5/09.
The appellants/Cross-respondents filed on 28/8/09 a Brief of Argument settled by Titilola Akinlawon.
MAIN APPEAL
In my humble view, the issues as crafted on either side are in effect asking the same questions and I see Issue 1 on both sides are sufficient to settle this appeal and that of the respondent being simply couched, I shall utilise it.
ISSUE 1
Whether the Court of Appeal was right to have set aside the judgment of the Lower Court delivered in chambers in violation of Section 36 (3) of the
5
Constitution of the Federal Republic of Nigeria, 1999.
In urging this Court to allow the appeal, learned counsel for the appellant contended that applying the proper test of “actual accessibility” the judgment of the trial Court was delivered in public and that the Supreme Court had in the cases of Oviasu v. Oviasu (1973) 1 ALL NLR 730; Nigerian Arab Bank v. Barri Engineering (1995) 8 NWLR (Pt. 413) 257 as opposed to Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356 adopted the test of actual accessibility but held that the circumstances in the former two cases did not pass the test.
That the proper order the Court of Appeal ought to have made was to set aside delivery of the judgment and not the proceedings, as judgment per se did not occasion any miscarriage of justice.
That in the alternative in so far as they did not adopt the test of actual accessibility, the cases of Oviasu v. Oviasu and Nigerian Arab Bank v. Barri Engineering (supra) ought to be departed from and overruled whilst the latter ought to be nullified having not been delivered by a full panel.
Learned counsel for the appellant relied on a number of cases such as: Nwadike v.
6
Ibekwe (1987) 4 NWLR (pt. 67) 1 ALL ER 705; Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 54; Ifezue v. Mbadugha (1984) 15 NSCC 314 etc.
For the respondents, learned counsel contended that neither Oviasu v. Oviasu nor Nigerian Arab Bank v. Barri Engineering (Nig.) Ltd. is an authority for the proposition that delivery of judgment in chambers under any circumstance cannot amount to delivery in public and the absence of public was the rationale for vitiating the proceedings and judgment in both cases. That where proceedings are conducted in private and judgment delivered in public, the judgment is null and void. He said conversely where proceedings were held in public and judgment was not delivered in public, the proceedings on which the judgment is based together with the judgment are null and void. That the reason for that is that there is a fundamental breach of the provision of the Constitution in relation to the adjudication and such proceedings so conducted amounts to grave injustice. He cited Abrashi v. COP (2005) 5 NWLR (Pt. 917) 36 at 49, NEPA v. Onah (1997) 1 NWLR (Pt. 680); Awuse v. Odili (2004) ALL FWLR (Pt. 212) 1611 at 1648.
The
7
appellant’s counsel urges the appeal be allowed on the fact that there was “actual accessibility” and so it can be taken that the judgment was delivered in public. That the proper order to be made is a setting aside of the delivery of the judgment while the proceedings survived.
Respondent’s stance is that the proceedings having been conducted in public and the judgment must be delivered in public, failing which as in this instance where the judgment was delivered in private, all proceedings, judgment inclusive are a nullity as a constitutional breach had arisen.
At the root of this contest is the application of Section 36(1) and 3 of the 1999 Constitution which stipulates thus:
“1. In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
- The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in Subsection (1) of this
8
Section (including the announcement of decisions of the Court or tribunal) shall be held in public”.
The Court of Appeal or Court below in its judgment anchored by Musa Dattijo Muhammad JCA (as he then was) in its interpretation of Section 36(1) and (3) of the Constitution of the Federal Republic of Nigeria 1999 held thus:
“What follows from a community reading of the above provisions is that a Court or tribunal must, in their proceeding in relation to the civil rights and obligations of persons, conduct such proceedings and pronounce their decisions in that regard in public. The appellant had argued and relied on the dicta of the Justices of the Court of Appeal as well as the Supreme Court in their decisions in Nigerian Arab Bank v. Barri Engineering (Nig.) Ltd. and Oyeyipo v. Oyinloye (supra) which tend to suggest that what “a public” place is as envisage under Section 36(3) of the 1999 Constitution, is a question of fact.”
The Lower Court stated further at page 475 as follows:
“It is further submitted that given the particular facts of the instants case, the judge’s chambers wherein the decision of the Lower Court was pronounced was such
9
a public place in the con of S.36(3).
The decision of Oyeyipo v. Oyinloye must be out rightly discounted from this discourse. The rationes decidendi in Oyeyipo v. Oyinloye is on the constitutionality of the Supreme Court’s right to sit in chambers as provided by the Apex Court’s rules of practice. It never was an issue in that case, as it presently is, whether or not sitting in chambers to pronounce decision satisfies the provisions of S.33(1) and (3) of the 1979 Constitution and Order 43 Rule 1 of the adjectival law of the Lower Court.
And coming to the decision in Barri’s case, this Court per Ayoola JCA, (as he then was) was correct in stating that whether or not a place is a public place within the con of S.33 (1) and (3) of the 1979 Constitution, now S.36 (1) and (3) of the 1999 Constitution, is a question of fact.
What the Court did not do then was to internalize the rule of evidence which dispenses of proof of such facts that should be taken judicial notice of in the course of proceedings. All judicial officers and indeed the genuine consumers of the services of such officers, who are privy to the conduct of judicial functions,
10
know that the Judge’s Chambers is not a place they can, without pretensions, be called a public place where persons have the rights to freely enter into and exit from. By Section 74(m) of the Evidence Act, judicial notice should be taken of “the course of proceedings” in the Lower Court. And the course has been that proceeding including pronouncement of decision in the State or Federal High Courts, have always been conducted in the Open Court rather than the Chambers of Lower Court resorted to in the delivery of its judgment. The Supreme Court’s decision in the Barri’s case is a profound restatement of this practice and recognition of same.”
Indeed, just as the Court below found, a judges chambers cannot be classified as a regular Courtroom or a place to which members of the public have right to go in and out since such access is dependent on the invitation or consent of the judge or maybe by his permission. It therefore implies that a constitutional right to which members of the public apart from the litigants and counsel are entitled cannot be at the whim of a Judge whatever the status of the Court the judge is presiding over. A part of the
11
Courts proceedings which ought to be public and is conducted in the confines of the judge’s chambers is clearly one done in secrecy and detracts from the impartiality, independence, publicity and unqualified respect which enshrouds justice given openly without fear or favour. Its acceptance by the public at large and the confidence it demands depend on these qualities which must be strictly adhered to. See Barri’s case (supra). What occurred in the trial High Court was a clear aberration, an irregularity so profound as to be incurable and a situation that is now well settled up to recently in this Court’s decision in Abrashi v. COP (2005) 5 NWLR (pt. 917) 36 at 49 which went along the decisions in Oviasu v. Oviasu (supra) Nigerian Arab Bank v. Barri Engineering (Nig.) Ltd. (supra).
It is to be noted that the reason advanced by the appellant in line with what the trial Judge stated to be his reasons for delivering the judgment in chambers being the possible effluxion of time to deliver judgment within the 90 days time frame, as reason that cannot create the waiver of having the judgment in the open and in public as the provisions of Section 36(1)
12
and (3) are too deep seated as cannot bow to such things as a waiver as it is a mandatory stipulation. This is all the more so since Section 294 of the Constitution that has prescribed the time frame within which judgments are to delivered has provided for the allowance of an explanation and where no injustice would occur to any party for the breach to be waived.
“294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days 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 within seven days of the delivery thereof”.
The provision above has been interpreted to have the effect of the judgment delivered after 90 days not automatically invalidated as long as no miscarriage of justice has ensued.
Also to be stated is that the Court of all tines must act within its vires and where it lacks the jurisdiction to carry out any act, any such act is a nullity. Therefore since the Constitution has not granted the trial Court the jurisdiction to take the proceedings and judgment in the private
13
confines of the judge’s chambers, the judge acted in futility when he set out to deliver the judgment in his chambers. He also did not have the power to give consent for whoever to come into his chambers to hear his pronouncement of the decision of Court.
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Atologbe v. Awuni (1997) 9 NWLR (Pt. 522) 536.
For effect, it needs be stated that the provisions of Section 36(1) and (3) of the 1999 Constitution are such that being a public right neither party to the litigation can waive the right or adjust it as it is a right donated by the Constitution. See Ngwo v. Monye (1970) 1 ALL NLR 91; Ofune v. Okoye (1966) 1 ALL NLR 94.
Finally I would say there is nothing upon which I can hinge a departure from what the Court of Appeal did in that the entire proceedings of the trial Court including that judgment had been vitiated as a result of the trial Courts breach of Section 36(3) of the 1999 Constitution when it pronounced its decision in chambers and the conclusion is that the Court of Appeal was right in allowing the appeal before it and setting aside the entire proceedings of the trial High Court
14
including the judgment. Therefore this appeal lacks merit and is dismissed as I uphold the decision of the Court below setting aside the decision and proceedings of the trial High Court.
CROSS APPEAL
The Notice of the Cross-Appeal and grounds without the particulars are thus:
The respondents in the main appeal and now cross appellants identified a single issue which is thus:
Whether aside of its delivery in chambers the judgment of the trial Court is otherwise valid.
The appellants in the main appeal and cross-respondents herein crafted a sole issue which is as follows:
Whether it was a misdirection to hold that in consequence of the delivery of the judgment in chambers vitiating the entire proceedings “there is nothing left in the proceedings of the Court to which other issues formulated by the parties to the appeal would be considered.
Clearly the question raised herein is whether or not the judgment delivered in chambers of the judge is valid or not.
Canvassing the position of the cross-appellants, learned counsel said the breach of Section 36(3) of the 1999 Constitution in the instant case does not in any way
15
affect the correctness or otherwise of the decision and so the Court below ought to have relied on this Court’s decision in Alidu Adon v. National Youth Service Corps (2004) ALL FWLR (Pt. 223) 1850 at 1857 and considered the three issues raised by the respondents/cross-appellants relating to the merit of the judgment itself.
For the Cross-respondents, learned counsel submitted that there was no misdirection in what the Court of Appeal did and that the entire proceedings are vitiated for failure to comply with the constitutional provisions means that all other issues are academic and nothing remains to be determined by the Court. He cited English Exporters (London) Ltd v. Ayanda (1973) 3 SC 51 at 56.
This Cross-appeal is not one to waste any time with, since the implication of the outcome of the main appeal which has been dismissed is that there is nothing on which this Cross- appeal can be founded, the entire proceedings of the trial High Court having been vitiated. The only option open is a striking out of this cross appeal and it is hereby struck out.
In the end the appeal having been dismissed, the cross-Appeal struck out. Parties are
16
to bear own costs.
SC.268/2005