Lamikoro Ojokolobo & Ors. V. Lapade Alamu & Anor (1987)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
This is one more case in the series starting with the decision of this Court in Dominic Ifezue v. Mbadugha (1984) 5 S.C. 79. That case of course dealt with the interpretation of Section 258(1) of the Constitution of the Federal Republic of NIGERIA, 1979 (hereinafter known as the Constitution).
The short constitutional point taken in this appeal came about this way. In Suit No. 1/38/80 in the Ibadan Judicial Division of Oyo State, the respondents, as Plaintiffs, sued the appellants as defendants claiming as follows:-
“(a) Declaration that the entire members of plaintiff’s family are entitled to Statutory right of occupancy in respect of their family farmland situate, lying and being at Aromona village, Olojuoro Road, Ibadan, Oyo State of Nigeria which farmland had been in effective possession of the plaintiff’s family from time immemorial.
(b) N400 damages for trespass committed by the defendants, their servants and agents.
(c) Injunction.”
On the 12th October, 1982 Oguntoye, J. gave judgment allowing all the claims of the plaintiffs. I shall return to the proceedings in the High Court later. The defendants/appellants appealed to the Court of Appeal which on 22nd May, 1986 dismissed their appeal. The appellants then appealed to this Court. 3 grounds of appeal were originally filed. On the 18th day of May, 1987 learned Senior Advocate for the appellants, Professor A.B. Kasunmu moved this Court praying for leave to argue an additional ground of appeal couched in the following terms:-
“The learned Justices of the Court of Appeal erred in law in confirming the decision of the lower court which judgment is a nullity having regard to the provisions of Section 258 (unamended) of the 1979 Constitution of the Federal Republic of NIGERIA.
Particulars of Error
Judgment was reserved on the 7th day of July,1982 by the trial Court after the conclusion of evidence and final addresses which judgment was not delivered until 12th day of October. 1982.”
That prayer was granted. It is necessary now to set down the relevant proceedings of the Trial Court. At the conclusion of the evidence on page 126 learned counsel to the plaintiffs and defendants in the trial Court addressed the Court as stated on page 127-138 of the Record of proceedings. At the conclusion of that address on page 138 the learned trial Judge D.E.A. Oguntoye, recorded this –
“Judgment reserved to 16/7/82”. On 16th July, 1982 the learned trial Judge. Oguntoye, J. recorded this – “Judgment not read and further adjourned to 23/8/82”.
This was on the top part of page 139 of the Record Lower down on that same page the proceedings for 23/9/82 were recorded thus-
“Court:- The point raised by Mr. Peluela as to the filing of the Counter-Claim has just been raised before me in another matter, and I wish to consider the point further. Judgment is therefore, further reserved to 12th October, 1982.
(Sgd.) D. E. A. Oguntoye
Judge
23/9/82”
As can be seen on page 140 of the Record, that judgment was delivered on 12th October, 1982. It is also necessary to set down the amended and unamended Section 258 of the Constitution. Section 258(1) states-
“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.”
By the Constitution (Suspension and Modification (Amendment) Act No.17 of 1985. Third Schedule Section 258 of the Constitution was amended by the addition of a new Subsection 4 which read –
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of sllch non-compliance has suffered a miscarriage of justice by reason thereof.”
In argument before this Court on 18th May,1987. Professor Kasunmu. S.A.N. was content to refer to the proceedings before the learned trial judge on 7th and 16th July, 1982 as well as on 23rd September and 12th October, 1982. He submitted that by virtue of Section 258(1) of the Constitution and the decision of this Court in Dominic Onuora Ifezue v. Mbadugha (1984) 5 S.C. 79; Paul Odi v. Osafile (1985) 1 N.W.L.R. pt. 17; Shodipo v. Lemminkainen OY (1985) 2 N.W.L.R. pt. 8, 547, the judgment of the learned trial judge was a nullity, and that consequently the judgment of the Court of Appeal was equally a nullity.
He referred to the new Sub-section 4 of Section 258 of the Constitution and submitted that, following the decisions of this Court in Kpema v. The State (1986) 1 N.W.L.R. 366.445; Taylor v. Trustees of the Trinity Methodist Church (1986) 4 N.W.L.R. 136, 141, that amendment which came into operation on 27th August, 1985 was not retrospective and so could not save the judgment in issue. He equally submitted that what transpired before the learned trial Judge on 23rd September, 1982 could not bring the case within the principles established in the case of Shodipo (supra).
Chief F.R.A. Williams, S.A.N., appearing as amicus curiae, contended that the question was whether the amendment in 1985 is intended to apply to all appeals or to applications for review after the date of that amendment. He submitted that the amendment is directed to the Court of Appeal or the Court of Review. He submitted that the rule about retrospectivity is a presumption that legislation is not retrospective.
This, he said, will only arise for consideration when there is doubt. He referred to Subsection 5 of Section 258 which he said reinforces the point that the matter is live when the appeal comes out before the High Court in case of review or the Court of Appeal in case of appeal. He referred to West v. Gwynne (1911) 2 CH. D.I; Attorney-General v. Vernazza 1960 A.C. 965. He also referred to two decisions of the Court of Appeal – The Registered Trustees v. Adeosun (1986) 3 N.W.L.R. 561: and Gafari v. Johnson (1986) 5 N.W.L.R.66. 71.
Chief Williams finally submitted that the intention of Section 258(4) was to reduce the rigours of 258(1) and urged the court to give it a beneficial construction. Mr Odugbesan for the respondents submitted that the amendment was made to correct a mischief – the effect of Sub-section 1 of Section 258 dealt with the Judge. He submitted that all judgments not yet delivered prior to 27th August, 1985 will not be declared null and void unless there is miscarriage of justice.
He submitted that Subsection 4 of Section 258 dealt with procedural not substantive law. It therefore had retrospective effect. He referred to the case of In re Athlumney (1898) 2 Q.B. 547 at 551-552. In reply, Professor Kasunmu submitted that Subsections 1 and 4 of Section 258 have to be construed together. He contendcd that by the provisions of Subsection 1 of Section 258 and the decision of this Court in Ifezue (Supra) a decision given outside the 3 months period was a nullity.
He argued that there was already a vested right arising from such a null judgment. The amendment of the Constitution, he submitted, specifically put the operative date as 27th August. 1985 and so it would not apply to decisions given before 27/8/85, and coming before the Court of Appeal after 27/8/85. To say that it did would mean validating judgments that were already null and void.
Finally, he said that before the 27th August, 1985 amendment, and following Section 258(1) of the Constitution, there was no jurisdiction in the Court if the judgment was delivered outside the 3 months period. The effect of Subsection 4 of Section 258 is that there was no jurisdiction to examine the otherwise null judgment and so declare it only if there is a miscarriage of justice.
The constitutional point raised here is clearly of some importance. This Court had in three previous decisions – Kpema (Supra) Taylor (Supra) and Obadiara v. Uyigwe (1986) 3 S.C. 39 – held that the new Subsection 4 of Section 258 was not retrospective. It is however conceded that there was no argument on the issue in any of those cases. It is therefore within the principles enunciated by this Court to receive argument on the point, and if satisfied, to overrule its previous decisions. See Bronik Motors v. Wema Bank (1983) 1 S.C.N.L.R. 296 and a host of other cases.
This is more so as it is a matter on which there are already 2 conflicting decisions of two divisions of the Court of Appeal. In the Adeosun case (Supra) the Court of Appeal decided that the Subsection had retrospective effect, but in fairness to the learned Justices of that Court, the issue was really not argued before them nor did they adduce any supporting reasons for that decision.
The opposite was the case in Gafari v. Johnson (Supra) which was decided by the Lagos Judicial Division of the Court of Appeal. In that case, the issue was squarely whether the judgment delivered by the learned trial judge 6 months after the conclusion of evidence and final addresses was saved by Section 258(4) of the Constitution when that judgment had been delivered before 27th August, 1985. After hearing extensive argument on the issue the Court (Nnaemeka-Agu, Mohammed and Kutigi, J.J.C.A.) came to the conclusion that the amendment did not have retrospective operative effect and so could not save the judgment which was declared void following Ifezue (Supra).
In a well reasoned lead judgment, Nnaemeka Agu, J.C.A., emphasising the words” shall not be set aside or treated as a nullity” held that they were words which in normal expression indicated something happening in future i.e. from 27th August, 1985. In concluding his judgment, the learned Justice said-
“There appears to be some force in the submission of Chief Kehinde that the provision is one of substantive law because it provides some relief against a breach of Section 258(1) of the Constitution. But it appears to me that this case may not rightly rest on mere classification which, in any event, is not always free from difficulties.
It appears to me that for a constitutional provision such as this the best approach – and this is perfectly in accord with the presumption against retrospectivity – is to look at the provision itself and try to ascertain the dominant intention of the enactment. Whether it is intended to apply in future or to take away vested rights. I derive considerable support for this approach from the decision of the Federal Supreme Court in Are v. Attorney-General of Western Religion (1960) 5 F.S.C. 111 at 112”.
It is a cardinal rule of the construction of statutes that words should be given their ordinary natural meaning. To do this one has to look at the words of the statute carefully. Having done that, the use in Subsection 4 of Section 258 of the words shall set aside referred to earlier contemplates something in future, that is judgment delivered after the commencement date of the amendment which is 27th August, 1985. It had to refer to judgments delivered after that date for the section continues with the words “or treated as a nullity” which cannot apply to judgments delivered before 27/8/85 which, as I shall show hereunder, were already a nullity if they violated the provisions of Section 258(1). Furthermore, the condition in Section 258(4) which requires miscarriage of justice is a new ground going beyond the nullity stipulated by Section 258(1). It has also been established by this Court that in construing the provisions of our Constitution, the Sections have to be taken together. See Senator Abraham Adesanya v. The Federal Republic of NIGERIA. It follows that Subsections 1 and 4 of Section 258 of the Constitution have to be read together. Reading Subsection 1 first, it says that every court shall deliver its judgment not later than 3 months from the conclusion of evidence and final addresses. Since the provision is mandatory, the implication is that any judgment delivered after 3 months is a nullity. The Subsection is directed to every Court and so for a judgment to be valid it has to be delivered within 3 months, and as a corollary, any judgment delivered by a Court after that mandatory 3 months is a judgment delivered by that court without jurisdiction. That is the decision of this Court in Ifezue (Supra) and Odi v. Osafile. In the latter case, Obaseki, J.S.C. said at page 29-
“It seems clear that the Constitution itself sets a limit of time forthe exercise of the jurisdiction to “hear and determine” appeals and any determination outside the 3 months period from the date of the conclusion of evidence and final addresses (which constitutes the hearing) is a determination without jurisdiction. I do not see how one can overlook the phrase “subject to the provisions of this Constitution.” This constitutional restraint reinforces the construction of Section 258(1) by this Court that the provision is mandatory and not directory. That, in my view, settles or lays the point that any judgment delivered after 3 months from the conclusion of evidence and final addresses is a nullity at best. It is the Constitution that gave the jurisdiction. It is the Constitution that terminated it. Without jurisdiction, a court cannot exercise its judicial powers and any such exercise is an exercise in vacuo and null and void.”
Subsection 4 of Section 258 now carries the matter further. While the judgment per Subsection 1 is a nullity and is delivered without jurisdiction, Subsection 4 allows the court to examine that judgment and determine whether there was a miscarriage of justice. If there is none, then that judgment cannot be treated as a nullity. In other words, as Professor Kasunmu rightly submitted, after 27th August, 1985 the Court now has jurisdiction to so examine such a judgment before treating it as a nullity or not as the case may be. It is agreed by all that the Constitution (Suspension and Modification) Amendment Act No. 17 of 1985 came into effect on 27th August, 1985.There is nothing on the face of the provisions of the Act to suggest that it was intended that it should apply to any transactions before that date. More specifically, there are no clear words in the new Subsection 4 of Section 258 of the Constitution to suggest that it was intended that it should apply to judgments delivered before 27th August, 1985- In other words, that it should have retrospective effect.
It is a well settled principle of law that an Act of Parliament cannot be construed as having retrospective effect unless there are express words in the enactment showing such an intention. This is based on the presumption that the legislature does not intend what is unjust. Statutes are construed as operating only in cases or on facts which came into existence after the statutes were passed unless a retrospective effect is clearly intended. One of the more well known statements on this rule is that of Wright, J. in Re Athlumney (1898) 2 Q.B. 551 at 551,552 where he said-
“Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right of obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only”
See also Moon v. Durden (1848) 2 Ex 22, 43. But the presumption against retrospectivity is a presumption and is therefore not rigid and inflexible. Scarman, J. in Carson v. Carson(1964) 1 W.L.R. 511 at 517 said it is “one to be applied always in the light of the language of the statute and the subject matter with which the statute is dealing.” The presumption can also be overcome either by express words in the Act or by circumstances sufficiently strong to displace it. See Sunshine Porcelain Potteries Ply. Ltd. v. Nash (1961) A. C. 927, 938. In the instant appeal, I have already indicated that there are no express words in Section 258(4) which would suggest that the legislature intended it to have a restrospective effect. Nor can I imply any such intention from the language. Are there then any circumstances which would lead one to agree that the presumption against retrospectivity had been displaced I agree with Chief Williams that the legislature in making the amendment must have been motivated by a desire to lessen the rigours on litigants often brought about by the application of Section 258(1) of the Constitution. That however is no reason for assuming that the legislature intended that remedy except in the case of judgments delivered after 27th August, 1985 which, when they come up for review or on appeal can only be set aside, although they may have been delivered outside the 3 months period, if there is a miscarriage of justice. If the argument that Subsection 4 has retrospective effect is accepted, how far back would it go’.’ At the very least, it would have to go back to October 1979 when Section 258(1) came into force. In that case the provisions of Subsection 4 ought to have been applied when cases such as Ifezue and Shodipo (1984) got to the Court of Appeal and to that extent they are in effect over-ruled. That must be so, for if Subsection 4 is to apply to cases decided before 27/8/85 whenever they come up on appeal, why would it not apply to Ifezue which may have been decided at the same time with such cases but may have come up on appeal earlier I think that I would look out for more express words before coming to the conclusion that the legislature intended to overrule Ifezue and the host of cases that have since followed it.
Two cases may more clearly show circumstances in which it would be reasonable to assume that a statute is intended to have retrospective effect. The first case is the Sunshine Porcelain case (supra). There Section 12(1) of the Victoria Worker’s Compensation Act 1951 in England, was first enacted in 1940 by way of amendment of an Act of 1928. It provided that-
“where (a) a medical practitioner certifies that a worker is suffering from a disease and is thereby disabled from earning full wages at the work at which he was employed and (b) the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of the disablement”, compensation should be payable. The respondent was employed by the appellant company in 1931 and 1938; during their work she was exposed to dust containing silica: and the first symptoms of silicosis appeared in 1950. It was held that the presumption against retrospectivity was displaced by the circumstances and that she could claim under Section 12(1). The Court held that they could not require the respondent to prove that the disease started after 1946 when the section was enacted when it was known that the disease silicosis comes on slowly and may manifest itself after a long period.
The other case is Gwynne’s case (supra) which was cited to this Court by Chief Williams. In that case, what was in issue was Section 3 of the Conveyancing and Law of Property Act, 1892.
That section read –
“In all leases containing a covenant, condition, or agreement against assigning, undertaking, or parting with the possession or disposing of the land or property it leased without licence or consent, each covenant, condition, or agreement shall, unless the lease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expenses incurred in relation to such licence or consent”
The question was whether the provision applied to leases executed before 1892. Joyce, J. holding that it did used words which on the face of them would appear to support the contention put forward in the instant appeal.
He said, at page5 –
“The Legislature, I think intended to prevent or put an end to something which, rightly or wrongly, was considered an injustice …………….
Looking at all the circumstances in reference to this enactment, and examining it in the way Lord Hatherly in Pardo v Bingham L.R.4 Ch 740 said the statute must be examined, and considering the express generality of the provision namely “in all leases” which I think is the same thing as if the statute had said “in every lease” without making any distinction between leases granted before and leases granted after the passing of the Act, upon the whole I come to the conclusion that this Section was intended to apply to every lease, both existing and future, and in effect, as from the commencement of this Act of 1892″
The Court of Appeal in England agreed with Joyce, J. Kennedy L.J. in his own judgment observed at page 15,-
“In the first place, it appears to me that the language of the Section though it does not exclude the contention of the appellant, favours the wider interpretation. The opening words, “in all leases”. prima facie negative a distinction between leases made before and leases made after the passing of the Act. Nor is there anything in the con to prevent or modify this inference. In order to give the section the limited application for which the appellant contends, you must add by implication after the words “all leases” some such words as “made after the passing of this Act”
It is clear to me that the circumstances of these two cases are different from those in the instant appeal, the circumstances of the earlier case perhaps more so. In the latter case I seem to see a greater justification for the construction there where the words “in all leases” were used than I would feel in Subsection 4 where the words “No judgment shall be” were used. Besides what Section 3 of the 1892 sought to do was to stop the lessor in future from exacting a fine for granting an assignment unless there is a clear provision that he can do so. Surely it must be the intention that the lessor whose lease contains such provision against assignment should be subject to the new condition.
Two matters remain to be considered. The first is that a statute is not to be given a retrospective effect so as to impair existing or vested rights. As was said in the 6th edition of Craies on Statute Law at page 386, a statute is retrospective” which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”. In the instant appeal. I have already stated that in my view the effect of Section 258(1). and indeed that has been so declared by this Court, is that any judgment delivered outside the period of 3 months from the conclusion of evidence and final addresses is void. The party that lost in such a suit does have rights which have vested as a result of such a void judgment, for the party that was ‘successful’ cannot derive any consequential benefits from that judgment without being successfully challenged. It is therefore my view that in this case it was not the intention of the legislature to enact a subsection which would have the effect of adversely affecting such vested rights.
The second matter arises from the fact that it is settled law that the presumption against retrospective construction has no application to enactments which only affect procedure and practice of the Courts. As Mellish, J said in Republic of Costa Rica v Erlanger (1074) 3 Ch.D.62. no person has a vested right in any course of procedure. I think that what was involved here was not a matter of procedure, but touched on a substantive issue of constitutional law -judgments delivered outside jurisdiction and the question of miscarriage of justice. To that extent the case Attorney-General v. Vernazza (Supra) cited also by Chief Williams is not relevant to this case. That case clearly dealt with a matter of procedure – an amendment requiring a vexatious litigant to obtain leave of the High Court, before filing any suit and the question was whether this applied to cases which he had previously filed. It was held that it did. Lord Denning at page 977 of the report stated the law-
“If the new Act affects Mr. Vernazza’s substantive rights, it will not be held to apply to proceedings which have already commenced unless a clear intention to that effect is manifested. See Colonial Sugar Refining Co Ltd v Irving (1905) A.C. 369. But if the new Act affects matters of procedure only, then prima facie it applies to all actions, pending as well as future.”
He was of the view that the Act. did not affect Mr. Vernazza’s substantive rights.
For the foregoing reasons, I am of the view that subsection 4 of Section 258 of the Constitution would only apply to judgments delivered after 27th August, 1985. It is therefore inapplicable in the present suit. To return, therefore, to the proceedings in this case, evidence and final addresses were concluded on 7th July, 1982, but the trial court’s judgment was delivered on 12th October, 1982, 5 days later than the mandatory 3 months prescribed by Section 258(1) of the Constitution. I have also looked at the proceedings before the trial court on 23rd September, 1982 to see if there was a reopening of the case within the principles set down by this Court in Shodipo (Supra). I am afraid that it does not fall within it. On the 23rd September, 1982 the learned trial Judge appeared to be talking to herself aloud – some point had just been raised before her in another matter. Although she said that she wished to consider the point further, she did not call for any further address by counsel.
In all these circumstances, the judgment of the trial court dated 12th October, 1982 was a nullity and I hereby so declare. I would therefore allow this appeal and it is hereby allowed. The judgment of the High Court delivered on 12th October. 1982 as well as the judgment of the Court of Appeal dated 28/5/86 are set aside. The suit is remitted to the High Court of Oyo State, Ibadan Judicial Division for trial de novo by another Judge. I award costs of N300 in this Court and N350 in the Court of Appeal in favour of the appellants.
BELLO, C.J.N. (Presided): The facts of the case upon which the constitutional issue was predicated in this appeal are simple. The evidence and the final addresses at the trial of the case in the High Court of Oyo State holden at Ibadan were concluded on 7th July 1982. Although the trial judge had reserved judgment to be delivered on 16th July 1982, the judgment was not in fact delivered until on 12th October 1982, which was more than 3 months from the date of conclusion of the final addresses.
In Ifezue v. Mbadugha (1984) 5 S.C. 79 this Court decided that any judgment delivered outside the 3 months limit prescribed by subsection 258(1) of the Constitution is null and void. The subsection provides:
“258 (1) 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 within 7 days of the delivery thereof.”
The Constitution (Suspension and Modification) (Amendment) Decree 1985 which came into force on 27th August 1985 added to section 258 two new subsection as follows:
“258. (4) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.
(5) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was noncompliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the court shall send a report on the case to the Chairman of the Advisory Judicial Committee who shall keep the Committee informed for appropriate action”
In Kpema v. The State (1986) 1 NWLR 396. Taylor v. The Trustees of T.M. Church (1986) 4 NWLR 130 and Obadiaru v. Uyigue (1986) 3 S.C. 39 this Court also decided that the foregoing amendment has no retrospective but has only prospective operation and hence the amendment is inapplicable to any case in which the conclusion of final addresses was before 27th August 1985 and the judgment was delivered outside the 3 months limit.
From the foregoing, it is transparently clear that learned counsel for the Appellants is right in his submission that the judgment of the trial court in the case on appeal is a nullity.
However, learned counsel for the Respondents and Chief Williams, as amicus curiae, have introduced a new dimension in the case on appeal which was not taken and canvassed by counsel and was not directly determined by this Court in any of the previous cases. The new dimension is the issue as to whether the amendment to section 258 affects substantive law or it affects purely procedural matter. Both counsel relied on the general principle of interpretation of statutes and contended that. if the provision of the amendment is an enactment of substantive law then, the operation of the amendment cannot be retrospective and must be prospective. On the other hand, if the amendment is a matter of procedure then, its operation is retrospective. Learned counsel submitted the amendment was of procedure and referred to In Re Athlumney (1898) 2 Q.B. 547 at 551-552 and West v. Gwynne (1911) 2 Ch. 1 at 15.
Moreover, Chief Williams relied on A- G. v. Vernazza (1969) A.C. 965 at 975 and 978 and 44 Halsbury’s Laws of England, 4th Ed” paragraphs 922 and 925 to buttress his submission that retrospectivity should be put to the amendment. He referred to the decision of the Court of Appeal, Ibadan Division, in the Registered Trustees v. Adeosun (1986) 3 NWLR 561 which was in favour of his submission. He also drew our attention to Gafari v. Johnson (1986) 5 NWLR 66 where the Lagos Division of that Court held a different view. He contended that putting time limit in a statute for doing an official act is procedural and said the matter was not fully canvassed in Kpema v. The State (Supra) and Taylor v. The Trustees (Supra). He said the amendment is a remedial statute modifying the rule of procedure and should be given a beneficial construction.
In his reply, learned counsel for the Appellants adopted the reasoning of Nnaemeka-Agu, J.C.A. in Gafari v. Johnson (Supra) at pages 71-72 that the constitutional amendment is not procedural. He further submitted that the Appellants have a vested right to have the judgment declared a nullity and the amendment has affected that right.
It appears from the interpretation put to the amendment by this Court in Kpema and Taylor cases, despite the proclamation by the amendment of the demise of the ratio decidendi of Ifezue case, we are still haunted by the ghost of the ratio and the victims of the judicial errors committed prior to the amendment are not relieved of the hardships inflicted upon them by Ifezue case.
I am inclined to agree with the forceful submission of Chief Williams that beneficial and retrospective interpretation will repel the unwanted visitation of the ghost of Ifezue case and drive it away into the limbo of dark oblivion. Thus the parties will be relieved for ever of the hardships, anxieties and the long delay in the administration of justice brought about by its visitation.
It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties: Oshinye v. Commissioner of Police 5 FSC 105 at 112, Kimbray v. Draper (1868) L.R. 3 QR. 160 at 163, In re Suche & Co. Ltd. (1875) 1 Ch. 48 at 50, Colonial Sugar Refining Co. v. Irving (1905) A. C. 369 at 172 and A-G. v. Venazza (1960) A.C. 965 at 978.
In The Ydun (1899) P. 236, the vessel sustained damage as the result of alleged negligence of the Borough of Preston on 13 September 1893. The Public Authorities Protection Act, which provided that an action for negligence against any public officer must be commenced within 6 months next after the act complained of, was passed on 5 December 1893 and came into force on 1st January 1894. On 14 November 1898 the owners of the vessel issued a writ against the Borough for damages sustained by the grounding of their vessel. The Court of Appeal held the Act was an Act dealing with procedure only and applied retrospectively. Vaughan Williams L.J. stated at p. 246 of the report thus:
“I also agree that the Act is retrospective, for though, no doubt, the general rule of construction is that “nova constitutio futuris for man imponere debet non praeteritis.” it is pointed out in Moon v. Durden (1) that rule of construction yields to a sufficiently expressed intention of the Legislature that the enactment shall have a retrospective operation, and there is abundant authority that the presumption against a retrospective construction has no application to enactments which affect only procedure and practice of the Courts.”(Italics mine)
Again, while dealing with the construction of statutes which made provisions for “time” within which judicial proceedings might be taken, Lord Alverstone C.J. said at p. 338 in The King v. Dharma (1905) 2 K.B. 335:
“The rule is clearly established that, apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective. It has been held that a statute shortening the time within which proceedings can he taken is retrospective (2). The Ydun, (1899) p. 236 and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force. Mr. Compton-Smith would have been entitled to succeed; but when no new disability or obligation has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply to offences completed before the statute was passed. That is the case here. This statute does not alter the character of the offence or take away any defence which was formerly open to the prisoner. It is a mere matter of procedure, and according to all the authorities it is therefore retrospective.”
The foregoing decisions seem to me to show that a statute making provision for “time” within which judicial proceedings can be taken is retrospective. I cannot see any good reason why a statute prescribing the time within which a court should dispose of proceedings ought not be so construed. The fact that the time limit prescribed by section 258 is a constitutional provision cannot be a valid reason because we have been applying the ordinary rules of interpretation of statutes in the interpretations of the several provisions of our Constitutions past and present.
Now, it is clear to me that the direction under subsection 258(1) of the Constitution that every court shall deliver its decision in writing not later than 3 months from the conclusion of evidence and final addresses is purely procedural and does not in any way affect the rights of the parties. The amendment added to the subsection by subsections (4) and (5) does no more than to spell out in clear terms the consequences of non-compliance with the provisions of the section, particularly subsection 258(1). It follows therefore that the amendment affects purely a matter of procedure and does not affect the rights of any party.
Furthermore, where a statute is passed for the purpose of explaining a former statute, the subsequent statute has relation back to the time when the prior Act was passed: see Craies on Statute Law, 7th Ed. p. 395. It is quite clear that the amendment does no more than to resolve the contentious issue in Ifezue case as to whether the provisions of subsection 258(1) were mandatory or directory i.e. whether or not mere non-compliance with the subsection renders the decision of a court null and void. The amendment resolves the issue in the negative. Since the amendment simply “explains” the effect of non-compliance with subsection 258(1), it ought to have effect from 1st October, 1979 which was the date subsection 258(1) came into force. Accordingly, the decision of the trial court ought not be a nullity because the final addresses had been concluded on 7th July, 1982 when the amendment was in force.
Applying the principle, which I have earlier stated, of construction of statutes regulating judicial procedure or explaining a previous statute, I would hold that the amendment to section 258 of the Constitution ought to have been given retrospective effect.
In Odi & An. v. Osafile (1985) 1NWLR 17 this Court exhaustively considered the significance of adhering to the rule of stare decisi in constitutional cases and set out the circumstances on which the Court may depart from its previous decision. I do not intend to reiterate the circumstances herein, it is sufficient to state that the Court may depart from the previous decision if it is satisfied the previous decision is erroneous and was reached per incuriam and that adhering to the previous decision will perpetuate hardship or injustice.
I am satisfied the decisions in Kpema and Taylor cases were reached per incuriam but as I pointed out in Odi v. Osafile (Supra) such decisions will not perpetuate hardship or injustice. Accordingly, one of the circumstances, i.e. perpetuating hardship or injustice that will warrant the Court to depart from the decisions in Kpema and Taylor cases has not been satisfied.
I would therefore allow the appeal and it is hereby allowed, I endorse the orders made by my learned brother Nnamani, J.S.C.
SC.42/1987
