Anachuma Anyaoke & Ors V. Dr F. Adi & Ors (1985)

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G. IRIKEFE, J.S.C 

Before the Onitsha Judicial Division of the High Court of the then Eastern Region of Nigeria, the appellants herein sued the 1st set of respondents herein claiming as follows

“Declaration of title to land known as Nne Agu or Ntumala, situate in Agulu. (Annual value of 20pounds). Recovery of possession of the said piece of land. 100pounds damages for trespass. Injunction trespassing the defendant, his servants and or agents from further trespass into the said Nne Agu or Ntumala land.”

By a series of applications made before the High Court, before the actual hearing commenced, that court made orders joining the other sets of respondents to this appeal. The High Court took the evidence of all the parties, recorded the address of each counsel and adjourned the matter for judgment. In its judgment delivered on 2nd February, 1976, the High Court (Aseme, J, as he then was) dismissed all the claims of the appellants.

The appeal against the decision of the High Court was dismissed by the Court of Appeal on 15th August, 1980; the implication of this being that the decision of the court of trial was upheld. The appellants have now appealed to this court, on a number of grounds, both of mixed law and fact, but the only ground argued before us which raises a constitutional issue, reads thus

“4. The judgment of the Court of Appeal is null and void and of no effect as it offends section 258 of the Constitution of the Federal Republic of Nigeria 1979.

PARTICULARS

(a) Only one judge of the Court of Appeal, Hon, Justice J. A. Phil-Ebosie, J.C.A. sat, read and delivered his judgment but the judgments of other judges who were absent, or their statements in writing that they adopted any particular judgment were not pronounced or read in Court on 15-8-80.

(b) No copy of the judgment was delivered to the appellants on the date of the delivery of the judgment and in fact by letter No. FCA/E/232/78 dated September, 1980, a copy of the judgment signed by only Hon. J.A. Phil-Ebosie, J.C.A., was sent by post to the Appellants’ counsel.

Chief Onyiuke, S.A.N. for the appellants argued that the issue raised in the above ground of appeal relates solely to the jurisdiction of the Court of Appeal to deliver judgment. He argued further that, in the case in hand; it would appear that the court which delivered judgment was constituted by only one justice of the Court of Appeal (Phil-Ebosie, J .C.A.). Counsel submitted that the jurisdiction of the Court of Appeal to entertain an appeal, such as in this case, from a decision of a State High Court, derives from section 219 of the Constitution of the Federal Republic of Nigeria (1979) and that in every case, the Court of Appeal that is the particular panel thereof, must be properly constituted. In the view of counsel, the Court of Appeal would not be properly constituted for the purpose of delivery of judgment if only one justice out of three that heard all the argument in the appeal sat to read the judgment thereon. In each case, argued counsel, the panel sitting to deliver judgment must be a panel of three, the legally prescribed quorum for a panel. Chief Onyiuke did not, however, spell out whether what was required was the mandatory presence of the three-man panel that heard argument in the case or whether the requirements of the constitution would be met, if any other three members of the Court sat to read the judgments of those who participated in the hearing. Counsel cited our decision in Ifezue v. Mbadugha and Anor (1984) 5 S.C. 79 as authority for the foregoing submissions.

Mr. Okonkwo, learned counsel representing the 1st and 3rd set of respondents, in his reply, argued that this court is bound by the appeal record, which shows that all the three justices who heard the case had contributed to the judgment. He added that section 258(2) of the Constitution envisages that one justice can sit as a court to read his own judgment and then the judgments of the two other justices who might not be present. Mr. Akpamgbo for the 2nd set of respondents adopted the argument of Mr. Okonkwo.

For ease of understanding, I propose to set out the heading of the judgment of the Court of Appeal as it appears at page 157 of the record of appeal.

“In The Federal Court of Appeal.

Enugu Judicial Division