Benjamine Daminabo Iwo & Ors V. Hubert Ockiya & Ors (2009)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
May, 1977 two suits nos. PHC/74/75 and PHC/173/72 before the High Court of Rivers State were consolidated by order made by Pepple, J. with the further order that-
“plaintiff in PHC/74/75 shall be plaintiff in the consolidated action. Since he has already opened his case.”
The trial of the consolidated suits proceeded accordingly. On 30th March, 1981 counsel for the parties concluded their final addresses in the consolidated suits. Judgment was then adjourned to 23rd April, 1981. There was no minute of any proceedings on 23rd April, 1981.
The judgment in the consolidated suits was however delivered on 14th September, 1981 – five months, 15 days after the conclusion of final addresses on 30th March, 1981. The judgment is at pages 161 – 176 of the Record of Appeal.
On 24th November, 1981 the Appellants lodged their appeal against the judgment with four (4) original grounds of appeal. Two more additional grounds of appeal were filed by order/leave of this Court granted on 21st September, 2000. According to the recital (xxiv) in the Amended Brief of Argument of the Appellants (at page 6 thereof) –
The Honourable Court on 21.9.2000 granted the application, which was dated 26.10.99 but filed on 27.10.99, for the amendment of the Grounds of Appeal, which was thereafter filed and served within 14 days. –
One of the additional grounds of appeal reproduced in the Amended brief of argument of the Appellants at page 7 thereof complains that the learned trial Judge erred in law in delivering judgment in the consolidated suits on 14.9.81 in violation of section 258 (1) of the 1979 Constitution of the Federal Republic of Nigeria, then in force. As earlier stated, he judgment was delivered 5 months 15 days after the final addresses.
Section 258(1) of the -1979 Constitution allegedly violated provided thus –
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 matters determined with duly authenticated copies of the decision on the date of delivery thereof.
The complaint in the appeal is only in respect of the first limb of section 258 (1) of the 1979 Constitution above reproduced.
Borrowing Aniagolu JSC’s preface in IFEZUE v. MBADUGHA (1984) NSCC 314 at 317 – “The outcome of the appeal hinges on the interpretation of section 258 (1) of the 1979 Constitution. Although the grounds of appeal encompass other issues of law and facts, the interpretation of section 258 (1) becomes the dominant issue in the appeal because should the Appellants’ arguments on it be accepted, no useful purpose, other than fanciful academic peregrinations, would be served by going through the facts and issues of law arising therefrom.” I am guided accordingly.
The appeal was heard on 9th June, 2009 only on the Amended Appellants Brief dated and filed on 14th April, 2003, upon leave to that effect granted on 14th February, 2007. The only remaining Respondent did not file any brief of argument. On 10th February, 2003 the 1st Appellant, Benjamin Danimabo Iwo, and all Respondents, except the present Respondent who was the 4th Respondent, were struck off the appeal as they were reported to have all died. On 9th June, 2009 upon the report of the bailiff that the only remaining Respondent, Igbani Aggo, was on 2nd June, 2009, served hearing notice for the day’s proceedings but the said Respondent nonetheless decided to be absent we heard the appeal only on the amended Appellant’s Brief. Mr. D.A. Toby of counsel for the Appellants identified and adopted the Amended Appellant’s Brief dated and filed on 14th April, 2003 leave for the filing of which was granted on 14th February, 2007. Three issues for determination were formulated out of the 7 grounds of appeal, including the additional grounds of appeal. As I earlier indicated, I will first take the issue formulated from additional ground (f) to wit –
whether the trial Court’s judgment delivered 5? months after final addresses is not null and void?
(Ground F).
I had earlier reproduced the provisions of section 258 (1) of the 1979 Constitution, which at the time the judgment was delivered on 14th September, 1981 governed the said judgment. This I think is trite in view of OWATA v. ANYIGOR (1993) 2 SCNJ I (also reported: (1993) 2 NWLR (pt.276) 380). Mr. Toby submits that the judgment was delivered 2? months outside the constitutionally stipulated period of 3 months; that the High Court of Rivers State was one of the courts established under section 234 of 1979 Constitution in view of the fact that Rivers State is one of the States recognized under section 3 and Part I of the First Schedule to the said Constitution, and that after the evidence of the last defence witness, DW4, on 17 February, 1981 final addresses of counsel were concluded on 30th March, 1981. Counsel further submits that the judgment of the trial court on 14th September, 1981, delivered 5? months after the final addresses violated section 258 (1) of the 1979 Constitution and therefore was null and void. Relying on CHIEF DOMINIC ONUORA IFEZUE v. LIVINUS MBADUGHA & ANOR (1984) 5 sc 85 (also reported as IFEZUE v. MBADUGHA (1984) 15 NSCC 314). Counsel further submits that the constitution [Suspension and Modification] Amendment Decree, 1989, whereby section 258 was amended by addition of subsection (4) thereto did not affect the judgment delivered before the amendment came into force on 27th August, 1985 and that in view of the Supreme Court decision in LAMIKORO OJOKOLOBO & ORS v. LAPADA ALAMU & ANOR (1987) 7 SC [pt.1] we should allow the appeal. I agree with Mr. Toby that the High Court of Rivers State was one of the courts established under section 234 of the 1979 Constitution. It derived its existence and jurisdiction from the said Constitution. The salient words of section 258 (1) of 1979 Constitution were
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.
The Interpretation Act, 1964 defined month as meaning a month reckoned according to the Gregorian calendar. Final addresses, after the close of evidence with the evidence of DW4, were concluded on 30th March, 1981 at page 160 of the Record. By section 258 (1) of the 1979 Constitution therefore the trial High Court of Rivers State was obligated to deliver its decision in the suits or matter not later than 3 months from the said 30th March, 1981, which in the instant case should have been before and not later than 29th June, 1981. However, the judgment was not delivered until 14th September, 1981 – 5? months after the final addresses. As the majority of the full court of the Supreme Court (6 to 1) held in IFEZUE v. MBADUGHA [supra] on proper construction of the words of section 258 (1) of the 1979 Constitution, having regard to the mischief intended to be prevented, the constitution intended that the judgment in this matter be delivered within 3 months of its being reserved by the trial High Court after the final addresses of counsel on 30th March, 1981 and that the failure to do so invalidated the purported judgment delivered after that period. The clear implication of section 258 (1) of the 1979 Constitution is that after the period of 3 months after final addresses the trial High Court lost its jurisdiction vested by section 236 of the said Constitution to pronounce upon that judgment. After the 3 months stipulated by the constitution it became ultra vires the trial High Court to purport to deliver judgment in the matter, its jurisdiction having ceased.
In OJOKOLOBO v. ALAMU [supra] the issue was whether the amendment to section 258 of the 1979 Constitution effected via the Constitution Suspension and Modification Decree, 1985 by the introduction of subsection (4) thereto affected purely a matter of procedure, which did not affect the rights of any person and therefore had retrospective effect. It was held and further re-affirmed by the Supreme Court that the jurisdiction to determine civil or criminal proceedings in a High Court, as provided by section 258 (1) of the Constitution, was not procedural, and that it went beyond a matter of procedure when the jurisdiction is exercised 3 months after final addresses were concluded in the matter. It is clear from the statements of the majority the learned Justices of the apex court in OJOKOLOBO v. ALAMU [supra], particularly of Obaseki JSC at page 145, that the provision of subsection (4) of section 258 of the 1979 Constitution introduced by the 1985 amendment was not intended to have effect beyond 27th August, 1985. The 1985 Decree that amended section 258 of the 1979 Constitution by introduction of subsection (4) thereto was promulgated on 8th November, 1985 and was expressly made to take effect retrospectively from 27th August, 1985. Therefore the said subsection (4) applied only to judgments delivered after 27th August, 1985. Specifically, the ratio decidendi of OJOKOLOBO v. ALAMU is that the provisions of section 258 (4) of the 1979, as amended, did not apply to the proceedings in that case in which “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.” The instant case is still worse.
The judgment of the trial court was delivered on 14th September, 1981, 5 1/2 months after the evidence and the final addresses were concluded on 30th March, 1981. The judgment infracted section 258 (1) of the 1979 Constitution by 2 months 16 days.
For completeness of this judgment on this issue the two new subsections added to section 258 of the 1979 Constitution by the Constitution Suspension and Modification Decree, 1985 are as follows-
- (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 noncompliance 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 non compliance 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.
It was also held in KPEMA v. THE STATE (1986) 1 NWLR 396; TAYLOR v. THE TRUSTEES OF T.M. CHURCH (1986) 4 NWLR 136 AND OBADIARU v. UYIGUE (1986) 3 SC 39 by the apex court that the foregoing amendment did not have retrospective, but only prospective, operation and that the amendment was inapplicable to any case in which judgments were delivered 3 months, after conclusion of final addresses, before 27th August, 1985. It is accordingly my final view that judgment, in the instant appeal, delivered on 14th September, 1981, 5? months after evidence and final addresses on 36th March, 1981, is incurably a nullity by dint of section 258 (1) of the 1979 Constitution. The appeal on this issue is hereby allowed. The judgment in the consolidated suits being a nullity; no useful purpose will be served by considering the other issues of facts and law arising therefrom. I allow the appeal. The judgment of the Rivers State High Court [Coram: Barclay B. Pepple, J] delivered on 14th September, 1981 in the consolidated suits nos. PHC/74/75 and PHC/173/72 is hereby set aside. The two suits are hereby remitted to the Chief Judge of Rivers State for re-assignment and hearing of the same de novo.
Parties shall bear their costs.
Other Citations: (2009)LCN/3407(CA)
