Obianwuna Ogbunyiya & Ors V. Obi Okudo (1979)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

The Honourable Mr. Justice Philip Nnaemeka-Agu (Nnaemeka-Agu J.C.A.) of the Federal Court of Appeal, who in June 1977, was a Judge of the High Court of Anambra State, on the 17th day of June, 1977 in the Onitsha Judicial Division of the High Court of the said State, delivered a judgment in favour of the respondents who, as plaintiffs in Suit 0/71/58, claimed against the appellant, as defendants, a declaration of title to a parcel of land situate at Aboh, Ogidi in Anambra State, damages for trespass thereon and an order of injunction to restrain the appellants from further interference with the respondents’ ownership of the said land.

The appellants unsuccessfully appealed to the Federal Court of Appeal holden at Enugu (hereinafter referred to simply as “the Court of Appeal”), from the said judgment of the Honorable Mr. Justice Nnaemeka-Agu (who will hereafter in this judgment be referred to as Nnaemeka-Agu J.). They now appeal to this Court contending as they did in the Court of Appeal that the judgment of the High Court of Anambra State in Suit 0/71/58 is null and void the same having been delivered by the learned Judge when he had no jurisdiction to do so.

For the purpose of answering the question of law upon which this appeal will turn only a brief account is needed of the facts which have given rise to it. The respondents in 1958, filed their claims for title to land at Aboh in Ogidi, damages for trespass thereon and injunction in the High Court of Onitsha in the former Eastern Nigeria (part of which in now Anambra State). After a chequered history in the wake of the Nigerian Civil War and and the creation of States the suit was eventually heard by Nnaemeka-Agu J. who after listening to the address of counsel on both sides on the 13th day of June, 1977, adjourned the matter to 17th June, 1977, when he duly delivered judgment as already stated. Sometime subsequent to this judgment, Nnaemeka-Agu J. was appointed a Judge of the Federal Court of Appeal with effect from the 15th day of June, 1977. There is no evidence in these proceedings of the exact date of appointment; however, for the question of law raised in this appeal the important fact is that the appointment of Nnaemeka-Agu J. as a Judge of the Federal Court of Appeal was made effective from the 15th day of June, 1977, that is, two days prior to delivery by him of the judgement from which the appellants have appealed.

Before the Court of Appeal learned counsel for the appellants, Chief F.R.A. Williams produced a copy of the Official Gazette of the Federal Republic of Nigeria No. 48 of the 6th day of October, 1977, from which he read from the Bar, a Government Notice No 1258 at Page 1478, issued under the seal of His Excellency, Lieutenant-General Olusegun Obasanjo (as he then was) Head of the Federal Military Government (of Nigeria) and Commander in-Chief of the Armed Forces (of Nigeria) and in which it was stated that the Supreme Military Council, acting after consultation with the Advisory Judicial Committee “has appointed Mr Philip Nnaemeka-Agu . . . . a Justice of the Federal Court of Appeal with effect from the 15th day of June, 1977.” Thereafter learned counsel for the appellants urged the Court to hold that on the 17th June, 1977 Nnaemeka-Agu J. had ceased to be a Judge of the High Court of Anambra State and, therefore, had no jurisdiction to deliver the judgment which is the subject of the appeal. It does not appear that Nnaemeka J. was aware of his elevation to the Federal Court Appeal on the 17th day of June, 1977, when he delivered judgment in Suit 0/71/58; on the contrary the facts indicated strongly that he was, indeed unaware of it. Although the Gazette (Le of 6/10/77) was not produced from the witness box nor formally tendered and received in evidence, both counsel for the respondents and the Court (i.e. members of the Court of Appeal) looked at and read the said Government Notice. The Court of Appeal Phil-Ebosie Kazeem, Anya JJ. C.A. rejected the contention of learned counsel for the appellant and in dismissing the appeal held inter alia:

“As there is neither evidence on record nor any produced to us beyond the reference to the Government Notice in the Gazette earlier mentioned, of which we are not bound to take judicial notice, we are unable to accept the argument of lack of jurisdiction Learned counsel for the appellant although unable to produce any judicial decision directly in support of his submission has referred us to the decision of the Federal Court of Appeal in SODEINDE v. THE STATE ( Suit No F.C.A./1B/20/ 77) given on 10th February, 1978 in which that Court held that a judgement delivered by the Chief Judge of Oyo State on a date after he had been transferred to Ondo State as Chief Judge of that State was a nullity. He further contended that under the doctrine of Stare decisis, the Court of Appeal held at Enugu is bound by the decision in Sodeinde (Supra) and ought to have upheld his submissions. On the question whether the Court of Appeal was right in refusing to regard as evidence the publication in the Federal Gazette of 6th October, 1977, relating to the appointment of Nnaemeka-Agu J., learned counsel for the appellants submitted that the Court of Appeal was wrong in its consideration and application of section 73, 112 and 115 of the Evidence Act.

Finally, he submitted that in the circumstances in which the said Gazette was produced, and in view of the fact that it was read by both the Court and learned counsel for the respondents who also made use of it in the course of his arguments and submissions, there was no need for formal admission in evidence of the document (i.e. the Gazette). For the respondents, Mr Afolabi Lardner, submitted that in as much as the Judge (Nnaemeka-Agu J.) had not been sworn as a Judge of the Federal Court of Appeal on the 17th June, 1977, when he gave the decision now on appeal he had jurisdiction to do so since he was, on that date, still a Judge of the High Court of Anambra State. Alternatively, learned counsel for the respondents in a rather weak attempt to support the decision of the Court of Appeal submitted that the onus was on the appellants to produce in evidence the actual date of appointment of the Judge and the date on which he was sworn, as a Judge of the Federal Court of Appeal. In support of his submissions Mr Afolabi Lardner referred us to Section 128 of the Constitution of the Federation of 1963 No 20. (as amended by the Constitution (Amendment) (No 2) Decree of 1976, No 42).

The question for determination in this appeal although of considerable importance is, indeed remarkably devoid of any direct judicial decision, authority or comment. We think, however, that we should approach the issues raised in this appeal by first examining the provisions of sections 112 (a) (i) and 115 of the Evidence Act Cap. 62 in Volume II of the Laws of the Federation of Nigeria (1958 Edition). However, it is necessary to point out, at this stage, that in their judgment, the Court of Appeal erroneously made copious reference to sections 112 and 115 of the Evidence Law Cap 49. in Volume III of the Laws of Eastern Nigeria (1963 Edition) which are inpari materia with the identical sections of the Evidence Act aforesaid. The Evidence Law is an enactment of a State Legislature which is not competent to make any enactment on Evidence in relation to proceedings before the Federal court of Appeal. Sections 115 and 112 (a) (1) of the Evidence Act Cap 62. Vol. II read:

“115: The court shall presume the genuiness of every document purporting to be the London Gazette or the Official Gazette of Nigeria or of a Region or the Gazette of any British Possession or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by the Queen’s Printer, and every document purporting to be a document directed by law to be kept by any person if such document is kept substantially in the form required by law and is produced from proper custody. ”

italics supplied by this court.

“112: The following public documents may be proved as follows:

(a) all proclamations, Acts of State, orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or the Government of Nigeria in any Region thereof or of any local Native authority

(i) which appear in the Official Gazette of Nigeria or of a Region, by production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.

(ii)…

(iii) …

(iv) …

italics by this court

After a review of sections 115 and 112 (a) (i) of the Evidence Law the Court of Appeal came to the conclusion that under section 115 the presumption of genuineness of a document became applicable only when “produced from proper custody” and that “Production in evidence of the Official Gazette of the Federal Republic of Nigeria shall be prima facie proof’ under section 112 (a) (i) of the evidence Law of the kind of matters including appointments specified in the section. Thereafter the Court of Appeal stated in their judgment: “Section 115 provides for the presumption of genuineness of any document of the kind therein mentioned if and when produced in evidence. Only facts whether documented or not which are taken judicial notice of need no proof Section 72 of the Evidence Law. Such facts are catalogued in Section 73 of the Evidence Law and do not seem to include appointments or promotions of Judicial or other public officers. ”

For a convenient interpretation of section 115 of the Evidence Act we think the section should be split, and we have accordingly split it into two limbs viz: the portion which is not underlined (to which in this judgment we refer as limb A) and the underlined portion thereof (to which in this judgment we refer as limb B). Documents which come under limb A (and these include the Official Gazette of the Federation) do not have to be produced from proper custody before they can be presumed genuine under the section, while those which come under limb B must be produced from proper custody before their genuineness can be presumed by a court. Under the section the presumption of genuineness is, of course, rebuttable.

With due respect to their Lordships in the Court of Appeal, we think that the court was very much in error of law when it held that the Official Gazette of the 6th October, 1977 and the Government Notice No 1258 therein cannot be presumed genuine as it had not been “produced from proper custody.” What after all, is meant by the expression “proper custody” of a document It means no more than “its deposit with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found” and “proof of production from proper custody is required not as a ground for reading the document” (as appears from the judgment of the Court of Appeal to be in their contemplation) “but to afford the Judge reasonable assurance of it as being what it purports to be”

See Phipson: Evidence 12th Edition Article 1762 Page 731. Had the Court of Appeal addressed its mind adequately to the issue of “proper custody” of documents it would certainly have come to the conclusion that the proof production from proper custody cannot properly apply to a Government printer’s copy of the Official Gazette and that it could not be a sine qua non to the application of the reputable presumption of genuineness to the Government Notice in the Official Gazette aforesaid.

Again, the language of section 112 of the Evidence Act appears to us to be sufficiently clear. Put shortly it states that all appointments and other official communications of the Government of the Federation which appear in the Official Gazette of the Federation of Nigeria may be proved by “production of such gazette, and shall be prima facie proof of any fact of a public nature which they were intended to convey.” It seems to us indisputable that the statement of fact on the appointment of a Judge of a Federal Court intended to be conveyed by Government Notice No 1258 in the Official Gazette of the 6th October, 1977, is a statement of fact” of a public nature” What seems to us to admit of any argument is the precise meaning of the expression, in section 112 aforesaid, production of such Gazette. “Produced”, is a word “which has not got any exact or special meaning, but which requires to have an interpretation placed upon it in the statute in which it is used. “See Rigby L.J. in HENGSFSTAENGL v. AMERICAN TOBACCO COMPANY (1895) 1 Q. B. 347. The ordinary dictionary meaning of “produce” is “to bring forward” or “to bring out” or “to put on stage”. The question before the Court of Appeal in these proceedings was whether it was enough for the document in question (i.e the Official Gazette of 6th October, 1977) to be brought forward simply or whether it was necessary for it to be produced under oath. In other words, does section 112 (a) (i) aforesaid contemplate that documents mentioned therein require to be produced only by a witness testifying under the sanctity of an oath As far back as 1834 it was decided in Perry v. Gibson that a witness called merely for the purpose of producing a document need not be sworn. See PERRY v. GIBSON (1834) 1 A & E 148. Following Perry (Supra) the Supreme Court of New Zealand in 1961 held that a person called in criminal proceedings merely to produce documents was not required to be sworn but that he could place the documents on the table in court where they could be identified and made evidence and use of by other witnesses – See R. v Gilmore (1961) N. Z. L. R. 384. On a proper reading and construction of section 112 of the Evidence Act, it seems to us, that it is not in the contemplation of the section that production of the document mentioned in subsection (a) (i) must be by a witness testifying under oath. section 34 (3) of the evidence Act states that – “it shall be sufficient to account for his non-attendance” (i.e. non-attendance of a witness employed in the Public Service who having testified on oath at an earlier judicial proceedings was required to testify in subsequent judicial proceedings) “at the hearing of the said judicial proceedings if there is produced to the court, either a gazette, or a telegram purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default.” When the section was considered by the West African Court of Appeal, that Court was satisfied that the mere production by Crown Counsel, of the Official Gazette showing that a witness Eric Parr who (having testified at the preliminary inquiry) was required to testify again at a subsequent trial, was out of the country on leave (without the formality of production on oath from the witness box), was sufficient foundation for the admission under section 34 (1) of the Evidence Act of the deposition of the witness Eric Parr. Delivering the judgment of the Court (the West African Court of Appeal) in MAJEKODUNMI v. THE QUEEN (1952) 14 W ACA 64 at 66 to 67 , Foster-Sutton P. made the following observations:

“Counsel for the appellant then submitted that the deposition of Eric Parr, surveyor, Posts and Telegraphs Department, had been wrongly admitted in evidence at the trial because it was not properly proved, Counsel for the Crown having merely applied for the deposition to be read after producing a notice in the Official Gazette showing that a witness was out of the country on leave.”

The learned President then reviewed the provisions of section 34 (1) of the Evidence Act and the Proviso thereto and after making reference to the Provisions of Part XXXVI of the Criminal Procedure Ordinance (Cap. 43) and section 114 of the Evidence Act (both of which are not relevant to the point in issue), concluded:

“In our opinion, providing the requirements of the section of the Ordinance ‘(i.e. section 34)’ to which I have referred have been met the deposition of a witness. . . produced from the custody of the Registrar of the Court before which the trial is held, may properly be admitted in evidence without further proof That being so it follows that, on our view, the trial Judge rightly admitted in evidence the deposition in question in this case.”

italics supplied by this court

VINCENT ISIBOR v. THE STATE (1970) 1 All N.L.R. 248 was of the view that the learned trial Judge in the court below erred in law in refusing to admit the deposition of a witness duly signed by the Magistrate when learned counsel for the accused sought to tender the same in evidence from the Bar, and in insisting that it could only be proved in evidence through a witness on oath. It follows, from the foregoing that, in our view, their Lordships of the Court of Appeal erred in Law when they held, in effect, that the mere production of the Official Gazette of 6th October, 1977, (hear after referred to as “the October Gazette”) without more, did not constitute evidence of the Government Notice No 1258 therein contained. It is perhaps just as well to point out here that since the Notice No 1258 in the October Gazette dealt with facts of a public nature and of which it was the intention of Government to notify the public, once the document (i.e. the October Gazette containing the said notice) was produced before a court – whether of first instance of Appellate grade – then unless the contents of the notice aforesaid are irrelevant to the matter in issue that court, having the document before it, ought to take account of the same and, if need be, admit the same in evidence under sections 115 (limb A) and 112 (a) (1) of the Evidence Law. In the case of BAWA Sarup Singh v The Crown where a similar situation arose in a Crown Revision Appeal in the High Court of Lahore Fforde & Scott Smith J.J. the following pertinent observations were made:

“The first point taken by Mr. Puri for the petitioners is that it has not been proved that the association was in fact an unlawful one. This contention is clearly untenable. S.16 of the Criminal Law Amendment Act 1908 as amended by the Devolution Act 1920 provides that if the Local Government is of the opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that to constitutes a danger to the public peace, the Local Government may by notification in the Official Gazette declare such association to be unlawful. The local Gazette, namely the Punjab Gazette of October 12th 1923 has been produced before us. Notification No 23,772 of this Gazette declares that the Govenor of the Punjab in Council by virtue of the powers conferred on him by S .16 of the Criminal Law Amendment Act 1908 as amended by the Devolution Act 1920 is pleased to declare the Shiropmani Gudwara Parbandhak Committo be an unlawful association. Under the provisions of S.81 of the Indian Evidence Act the genuineness of this gazette must be presumed. Mr Puri was driven to arguing that the gazette was not in evidence merely because it was not formally tendered at the trial. It is clear however that it was produced before the lower Appellate Court, and even produced before the lower Appellate Court, and even if it is shown that this document was not formally tendered in evidence, it is now before us and we must accept it as proof that the Shiropmani Gudwara Parbandhak Committee is an unlawful association. . .” per forde J. in Bawa Sarup Sing vs The Crown (1925 A.I.R. (Lahore) 299 at 300.

Again, in BURNELL v. BRITISH TRANSPORT COMMISSION where the question was whether the trial Judge

(Sellers J.) was right in admitting in evidence and entire document (classified as privileged) which had been employed by defence counsel in cross-examination in the attempt to discredit a witness by use only of a portion of the document whereupon counsel for plaintiff had demanded that the entire document (portions of which were unfavorable to the plaintiff) be received in evidence, Denning L.J. observed:

“It seems to me that the ruling of Sellers J. was correct. It was in accordance with the practice as I have always understood it. I would like to add that since the evidence Act 1938, the document once it was legitimately in the presence of the Court, would be admissible as evidence under that Act also. I think, therefore, that we should look at the document as the Judge did…” See Denning L.J. in BURNELL v. BRITISH TRANSPORT COMMISSION (1956) 1 Q B 187 AT 190.

Following the above principles of the Law of Evidence we think that their Lordships of the Court of Appeal ought to have admitted the document (the October Gazette) in evidence or, at least, looked at and regarded it as evidence and in refusing to do so, we consider that they erred in Law. In exercise of our general powers under section 22 of the Supreme Court Act No 12 of 1960 and in keeping with the above principles of law of Evidence we not only looked at but also admitted in evidence (neither counsel at the hearing of the appeal objecting) the document the October Gazette as Exhibit SC (1).

The stage we think, is now set for a close consideration of the principal question for determination in this appeal which although, in our view, of considerable importance is (as far as we are aware) completely devoid of any direct judicial decision, authority or comment. The submission of learned counsel for the appellants, Chief F.R.A. Williams, is that by virtue of the appointment of Nnaemeka-Agu J. (as he then was) as expressed in exhibit SC.1, he ceased to be a Judge of the High Court of Anambra State on the 15th June, 1977, two days prior to delivery by him of the judgment now on appeal. Chief Williams also prayed in aid of his contention the decision of the Federal Court of Appeal held at Ibadan in Sodeinde (Supra), Mr Afolabi Lardner, learned counsel for the respondents contended that until the learned Judge was sworn he was precluded by virtue of Section 128 of the Constitution of the Federation No 20 of 1963 from entering upon the duties of his office, so that in the absence of evidence that he had on or prior to the 17th day of June, 1977 been sworn as a Judge of the Federal Court of Appeal, he was on that date still a Judge of the High Court of Anambra State. Beyond the observation that the decision in Sodeinde (Supra) really turned on the operation of section 5 (3) of the States (Creation & Transitional Provision) Decree No. 12 of 1976 we would say no more of the decision in Sodeinde(Supra); nor do we think it necessary for our determination of the question in this appeal to deliberate on the issue of the doctrine of Stare decisis and the question whether upon that principle the Court of Appeal was bound to apply the decision in Sodeinde (Supra) to the case in hand.

Section 128 of the Constitution of the Federation No 20 of 1963 as amended by section 1(c) of the Schedule to The Constitution (Amendment) (No 2) Decree No 42 of 1976 makes it imperative that “a Judge of the Federal Court of Appeal” shall not enter upon the duties of his office unless he has taken or “subscribed the Oath of Allegiance and such oath for the execution of the duties of his office as may be prescribed by Parliament.” A close look at Section 128 of the Constitution (No 20 of 1963) as amended by the Schedule to Decreee No 42 of 1976 shows clearly that the section is intended to lay down a condition proceeding to the functioning but NOT the appointment of a Judge. That section impliedly recognises the fact of appointment (already as a Judge) of the incumbent of that public office but makes the swearing of the prescribed oaths conditions precedent to his functioning in that office. The language of the section reads:

“A judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos NOT a person appointed to be a Judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos shall not enter upon the duties of his office (Not, be it noted, enter upon his office) unless he has taken or subscribed the Oath of Allegience and such oath for the due execution of his office as may be prescribed by Parliament. ”

The employment of the phrase in brackets in the above quotation would indicate that a person appointed to be a judge becomes one (i.e. such a Judge) only after oath has been made and subscribed by him. Here, however, the language of section 128 aforesaid is directed to the entering by a judge (not by a judge designate) upon the duties of his office (not, upon his office).

In the case of SHABBIR v. THE STATE a view similar to that already expressed in our consideration of the language of section 128 of our Constitution was also taken to the language of a corresponding section of the Indian Constitution. In that case (Shabbir),Article 219 of the constitution of India (in force in 1965) was under consideration. Article 219 reads:

“Every person appointed to be a judge of a High Court shall, before he enters upon his office make and subscribe before the Governor of the State or some person appointed in that behalf by him, an oath of allegiance according to the form set out for the purpose in the third schedule. ”

italics supplied

In the course of the judgment of the court in Shabbir (Supra), J agdish Sahai J. (with whose judgment Mahesh Chandra J. concurred) observed:

“It admits of no argument that a person appointed to be a judge of a High Court can only enter upon his office after making and subscribing the oath required by law. It is the performance of the oath that marks the induction into office. It would be noticed that Article 219 of the Constituuses the words every person appointed to be a judge of a High Court and not ‘every person appointed a judge of a High Court’ which would indicate that a person appointed to be a judge becomes one only after oath has been made or subscribed by him. Before that he is what may be called a judge designate. . .”

(See SHABBIR v. THE STATE (1965) A.I.R (Allahabad) 97 at 99 per Jagdish Sahai J.)

Now let us take a look at Exhibit SC (1) (Government Notice No 1258 in the October Gazette).

That notice states that:

” . . The Supreme Military Council do hereby appoint Mr Justice Philip Nnaemeka-Agu as a Justice of the Federal Court of Appeal with effect from the 15th day of June, 1977.”

It cannot possibly admit of any argument from the italic portion of the said notice that the appointment of Nnaemeka-Agu J. as a judge of the Federal Court of Appeal was intended to and did take effect from the 15th June, 1977.

One of the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument.

The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the con which shows that such a course would tend to derogate from the exact meaning of the words. On the above principles on construction of written instruments, the contents of Exhibit SC (1) can have no other meaning than that the appointment of Nnaemeka Agu J. as a Judge of the Federal Court of Appeal was intended to and did, take effect from the 15th day of June, 1977. An express provision in an instrument excludes any stipulation which would otherwise be implied with regard to the same subject matter expressum facit cessare tacitum. In the circumstances, there is no room for the view, in the face of the express language (of Exhibit SC (1), that the appointment of Nnaemeka Agu. as Judge of the Federal Court of Appeal was intended to take effect at a date subsequent to the 15th June, 1977, or that as a measure of convenience the Judge was to continue to function as a High Court Judge until such time as he may conveniently function in his new office in the Federal Court of Appeal.

From the foregoing observations, we are satisfied that (1) it was the intention of the Supreme Military Council as expressed in Exhibit SC (1)(1) the appointment of Nnaemeka-Agu J as a Judge of the Federal Court of Appeal should, and did, take effect from the 15th June, 1977, and, (2) on that date (15th June, 1977) he ceased to be a Judge of the High Court of Anambra State, and (3) when, therefore, on the 17th day of June, 1977, he gave the judgment now on appeal he did so without jurisdiction. Accordingly, the Court of Appeal erred in Law in rejecting the contention of the appellants that the judgment in these proceedings is null and void.

This appeal succeeds and the same is allowed. It so hereby ordered that the judgments of both the Federal Court of Appeal on the 9th day of March, 1979 in Suit FCA/E/135/78 and the High Court of Anambra State of the 25th day of June, 1976, in Suit 0/71/58 together with costs awarded in each case against the appellants, be and are hereby set aside; and in substitution thereof, it is hereby ordered that the claims of the Respondents (as Plaintiffs) against the Appel (as Defendants) in Suit 0/71/58 be heard de novo in the High Court of Anambra State held at Onitsha. The Appellants will have costs fixed at N400, whereof the sum of N100 represents costs in the Court of Appeal.

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Other Citation: (1979) LCN/2142(SC)