Asani Kosebinu & Ors. V. Misiri Alimi & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
D. MUHAMMAD, J.C.A.
By their Writ of Summons dated 30th October, 1990, the Respondents in the instant appeal, commenced Suit No.ID/2140/90, against the Appellants at the Lagos State High Court. The claims by the former against the latter per their amended writ of summons are for:
“(i) A declaration that the parcel of land delineated in Plans Nos. LA/127/CA/88 and LA/I44/LA/88 drawn by in Ademola Ashipa belongs to the Plaintiffs’ family.
(ii) An injunction restraining the Defendants by themselves, their servants or against or otherwise howsoever from further acts of trespass on the said land.
(iii) The sum of N5000.00k being damages for trespass committed by the Defendants jointly and severely against the Plaintiffs farmland on 12th October, 1990, by destroying the cassava, maize, tomatoes, Okro, pineapples and kolanut trees cultivated thereon.”
The Suit proceeded to trial at the end of which on 16th May, 2001, the Court reserved judgment till 27th of June, 2001. Judgment was eventually entered for the Respondents a day later on 28th June, 2001. As events preceding the delivery of the judgment form the basis of the crucial issue raised in this appeal, the significance of those events have necessitated their reproduction, hereunder, from page 180 of the records of Appeal thus:
“Court. This is the second day that this judgment could not be read in open Court, because there was no electricity in the Court room. We therefore, decided with consent of the parties’ counsel to read it in chambers. It is also agreed resently (sic) by statutory order (sic) that judgment must be read within 3 months overrides the procedural rule under Order 38 (rule 1 and 2) that judgement must be read in open Court. Finally, even though the judgment is read in chambers anyone who feels bad about that method may have to convince the higher Court that he has been preferred (sic) by that method”.
The Defendants being dissatisfied with the decision of the Court have appealed to this Court on an amended notice containing six grounds. The sixth ground of Appeal from which the crucial issue in the appeal is distilled reads:-
“(f) The learned trial Judge erred in law, when he delivered the judgment in chambers and not in open Court in breach of mandatory constitutional duty to read judgment in open Court and thereby occasioned miscarriage of justice.
Particulars
(i) The duty to deliver judgment in open Court is imposed by the Constitute of the Federal Republic of Nigeria.
(ii) Parties by consent cannot waive a Constitutional duty and confer right on the Judge to deliver judgment in chambers in breach of Constitutional provision.
(iii) The absence of electricity in the Court is not reasonable cense for reading judgment in chamber”.
Appellants have formulated four issues from their six grounds of appeal for the determination of the appeal. The issues read:-
“(1) Whether in the face of the gross misapprehension and misapplication by the trial judge of facts in the pleadings and in the evidence adduced before the trial court, the court could have come to a correct decision (Ground A).
(ii) Whether in the face of the contradictions replete in the case of the Plaintiffs/Respondents, the learned trial judge considered the totality of the evidence adduced before him by both parties and weighed same properly before granting the reliefs claimed by the Plaintiffs (Grounds B & C).
(iii) Whether the learned trial judge was right to rely in his judgment on his personal observations and unsworn statements made at the visit to the locus in quo (Grounds D & E).
(iv) Whether the judgment delivered by the learned trial judge in chambers and not in open court as required by Section 33(3) of the Constitution of the Federal Republic of Nigeria 1999 is valid (Ground F).”
At page two of the Respondents’ brief, the following three issues have been distilled as having arisen for the determination of the Appeal:
“1. Whether the trial Court wrongly evaluated the evidence on record in upholding the Plaintiffs claim to title-Grounds a, b & c.
- Whether the Court was empowered suo-motu and without prior notice to the parties to order a visit to the locus in quo after final addresses and make use of the record of the visit in the manner he did – Grounds d & e.
- Whether the venue and circumstance under which the judgment was read rendered the judgment null and void – Ground f”
One is very much aware that the Supreme Court in a plethora of its decisions has held that it is incumbent on this Court to determine all the issues canvassed by the parties in an appeal before it. See Adah v. NYSC (2004) All FWLR (Pt. 223) 1850; 7up Bottling Co Ltd v. Abiola and Sons Ltd (2001) 13 NWLR (Pt 730) 469 and Alao v. Akano (2005) All FWLR (Pt.264) 799 at 807. The Same Court has, however, held that where the Appellate Court is of the view that a determination of a single issue is sufficient to dispose of the Appeal, the duty to consider all the issues canvassed by the parties abates. See: Anyaduba v. Nigerian Renowned trading Co Ltd (1992)5 NWLR (Pt 243)535 at 561; Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131; Ebba v Ogodo (1984)1 SCNLR 72 and Alao v. Akano Supra at 808.In the instant case where a common but crucial issue of the propriety of the delivery in Chambers of the judgment from which this appeal evolved has arisen for consideration amongst other issues, a resolution of this fundamental issue in favour of the Appellant would be sufficient to dispose of the appeal thereby obviating the necessity of the consideration of the other issues posed by the parties. A breach by a Court of the right to fair hearing is crucial and goes to the root of the trial Court’s jurisdiction. If established, it nullifies the entire proceeding in which the breach occurred leaving nothing for the Appellate Court’s further scrutiny. See: Deduwa V Okorodudu (1976) 9-10 SC 310 and Adigun v. Attorney General Oyo State (1987) 1 NWLR 1 (Pt.53) 578. It is for this reason that one makes a Consideration of this overriding question as postulated under Appellants’ fourth issue and Respondent’s third a priority.
In arguing Appellants’ fourth and crucial issue, their learned Counsel submits that by S.33 (3) of the 1979 Constitution, the proceeding of a law court including the announcement of the Court’s decision shall be held in public. It is mandatory for the Court to conduct its proceedings in public, which the Judge’s Chambers where the judgment in the instant case was delivered is not. The two reasons given for the delivery of the judgment in Chambers, lack of electricity and the consent of parties and counsel is not sufficient, argues learned Counsel, to make an illegal conduct on the part of the Court lawful. It is submitted that final addresses of Counsel were taken by the trial Court on 16th May, 2001, and judgment reserved for 27th June, 2001 as shown at pages 175-177 of the record of appeal. Judgment was delivered precisely forty three days after final addresses of counsel. There was no necessity on the part of the Court to willy nilly pronounce its decision in the light of S.258 (1) of the Constitution which stipulates delivery of judgment within ninety days after conclusion of evidence and final addresses. In any event, learned Counsel further contends, party who challenges a judgment of a Court on the basis of its being delivered outside the ninety days stipulated by S.258 (1), must satisfy the Appellate Court of the injustice non compliance with the section has caused him.
In further contention, learned Appellants’ counsel submits that the learned trial Judge is wrong in surmising that S.258 (1) which provides for time for the delivery of judgment, and that is where indeed time is scarce, should override Order 38 (Rule 1 and 2) of the trial Court’s procedural rules.
The requirement of delivery of judgment in open Court is a mandatory Constitutional provision and not a matter within the procedural practice of the Court. Finally, Counsel contends that parties and counsel cannot by consent waive the mandatory constitutional provision which required the judgment of a Court to be delivered in public and by so doing confer jurisdiction on the Court to deliver its judgment in Chambers in violation of the Constitutional provision. Counsel has cited and relied on the case of Alhaji Bani Gaa Dudo Muhu v. Alhaji Ishola Are Ogele (2004) FWLR (pt.193) 362 and particularly on Nigeria Arab Bank Ltd v. Barri Engineering Nig. Ltd (1995) 5 NWLR (Pt 413) 257 at 290.
Learned Appellant’ counsel, for the foregoing as well as argument in respect of Appellant’s other three issues, has urged us to allow the appeal.
In advancing arguments in respect of Respondents’ 3rd issue for the determination of the appeal, learned Counsel concedes that the judgment of the trial Court dated 28th June, 2001, was indeed delivered in Chambers. What is in dispute, however, counsel submits, is what happened on 27th June, 2001 to which dated on 16th May, 2001, the Court initially adjourned for judgment. It is argued that the key factor in S.36 (3) of the 1999 Constitution relied upon by the Appellants is that proceedings must be held in the full glare of the public. Counsel seeks to distinguish the instant case from what happened in Oviasu v Oviasu (1973) 1 All NLR 730. The entire proceedings in Oviasu v Oviasu, unlike the instant case, were conducted in chambers at the instance of the Court and without any apparent reason for hearing the Suit in chambers. Accordingly Oviasu’s case is no authority on the basis of which the instant appeal is to succeed.
Also, the decision of the Supreme Court in N.A.B. Ltd v. Barri Engineering (Nig) Ltd (supra) relied upon by the Appellants, learned Respondent counsel further contends, does not avail the Appellants. The facts of the case in N.A.B Ltd v. Barri Engineering (Nig) Ltd (supra) are different from the facts of the instant case. In Barri’s case, it is argued, neither were the parties present during nor was any reason advanced for the delivery of the judgment in chambers. Most importantly, in the instant case, the chambers was open to the public when judgment was being delivered. Learned Counsel contends that whether or not, a Court sits in public is a question of fact to be determined on the peculiar facts of each case. This is the import of the Supreme Court’s decision in Barri’s case per the dictum of Ogundare at page 270 of the law report in amplification of Ayoola JCA’s decision that was being appealed against. Beyond the differing facts in the two cases, Barri’s case, counsel submits, does not have any binding force. Learned Counsel has cited S 213(2)(b) and S 214 of the 1979 Constitution and submits that since the decision in Barri’s case has evolved from the Supreme Court’s consideration of the Constitution, the application of S33(3) thereof, the Court with five justices instead of seven, was not properly Constituted to deliver a lawful binding decision. Barri’s case cannot, therefore, overrule the Court’s decision in Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt 50) 356 at 377.
Finally, Respondents’ counsel has urged that sight must not be lost of the fact that the trial Court was unable to deliver its judgment on 27th June, 01 because of lack of electricity in the Court room. The situation persisted by 28th June, 01, when the Court with the consent of parties and Counsel, in avoiding further delay, delivered its judgment. Counsel concluded that the appeal has no merit given his arguments and the appeal should be dismissed. It is important to observe that the three decisions of the Supreme Court alluded to by both counsel, Oviasu v Oviasu on the one hand and Oyeyipo v Oyinloye and N.A.B. Ltd v. Barri Engineering Ltd on the other, were decided in the light of two different constitutions. While Oviasu’s case was decided in relation to S.22 (1) and 3 of the 1963 Constitution, the Oyeyipo and Barri cases were decided under S.33(1) and (3) of the 1979 Constitution, The applicable law to the instant case is S36(1) and (3) 1999 Constitution which provision is the same with those under the two previous Constitutions. The latter Constitutional provision provides:-
“S36(1) and (3):
(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 a manner as to secure its independence and impracticality
“(3) The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the Court or tribunal) shall be held in public”
(Supplied underlining for emphasis)
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 has argued and relied on the dicta of the Justices of the Court of Appeal as well as the Supreme Court in their decisions in N.A.B. Ltd v. Barri Engineering (Nig) Ltd supra and Oyeyipo v Oyinloye (supra) which tend to suggest that what ‘a public’ place is as envisage under S.36 (3) of the 1999 Constitution, is a question of fact.
It is further submitted that given the particular facts of the instant case, the judge’s chambers wherein the decision of the lower Court was pronounced was such a public place in the context of S.36 (3).
The decision in Oyeyipo v. Oyinloye must be outrightly discounted from this discourse. The rationes decdendi 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.36 (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 context 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 internalise 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, know that the Judge’s Chambers is not a place that can, without pretensions, be called a public place where persons have the right to freely enter into and exit from. By S.74 (m) of the Evidence Act, judicial notice should be taken of “the course of proceeding” 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 the 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.
The Supreme Court per Kutigi, JSC at p. 276 of the Law Report in considering S.33 (1) and (3) of the 1979 Constitution and Order 43 (1) of the Lagos State High Court rules firstly stated thus:-
“These enactments clearly show that the learned trial Judge should have sat in public and in open Court to deliver his judgment.”
Then in a further amplification at page 291 of the report, Ogundare, JSC (as he then was) stated why delivery of judgment in Chambers contravenes the legislations under reference. He held thus:-
“A Judges’ Chambers is not one of the regular court rooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge.”
It is my firm and considered view that a place qualifies under S.36 (3) of the 1999 Constitution to be called “public”, and which a regular Court room is, if it is outrightly accessible and not so accessible on the basis of the “permission” or “consent” of the Judge. In the case at hand, but for the “permission” or “consent” of the Judge to have the judgment delivered in his Chambers, neither the parties nor their counsel and indeed the public at large would have had access as of right to the Judge’s Chambers. It is of essence of justice that not only should it be done but that it should actually be seen to be done. Read the apex Court again to this end when in Barri’s case (Supra) at pages. 290-291 of the report it states:-
“Any act of secrecy, however desirable it might seems, detracts from the aura of impartiality, independence, publicity, and unqualified respect which enshrouds justice given without fear of favour. Its acceptance by the public at large, and the confidence it demands, depend on these aura being strictly adhered to.”
The Court in its unanimous judgment concluded in the more succinct words of Kutigi, JSC thus:-
“From the foregoing it would by now be clear that Oviasu v. Oviasu is still the law and it has not been overruled by the decision in Oyeyipo v. Oyinloye (Supra).
The Court of Appeal was clearly in error for holding otherwise. So as it was in Oviasu v. Oviasu, it will also be in this appeal. The irregularity occasioned by the delivery of judgment in Chambers contrary to clear and unambiguous provisions of S.33 (3) of 1979 Constitution above is very fundamental and vitiates the whole trial.”
It cannot be otherwise in the instant case too. Recently, this Court in Abarsh v. COP (2005) 5 NWLR (Pt 917) 36 at 49, in keeping with rules of stare-decisis, had bowed to these authorities. As it were in the three decisions, Oviasu v. Oviasu, NAB Ltd v. Barr; Engineering (Nig) Ltd and Abarshi v. C.O.P. (Supra) so it must be in the instant case. The delivery of judgment in Chambers by the lower Court being in breach of S. 36 (3) of the 1999 Constitution has vitiated the whole trial.
Learned Respondent’s Counsel has lustily argued that because of the consent of not only the parties and their counsel but also that of the Judge, to have the judgment delivered in Chambers, the lower Court’s proceeding should, for that reason, be saved. Counsel argued that the right enshrined under S.36 (3) of the 1999 Constitution could be waived and decisions emanating from the Court’s proceeding endures because of the waiver.
It must be observed as pointed by Appellants’ Counsel that the reasons advanced by the trial Court in justifying the delivery of its judgment in Chambers, to say the least, were pretentious. The Court had ample time ahead of it within which, hopefully, with electricity eventually restored in the Court room, to “announce its judgment in public” as mandatorily required by S.36 (3) of the 1999 Constitution.
Secondly, S.258 that set a time frame for the delivery of Judgments did not require that the Courts must willy nilly deliver Judgments within the target period. The section has provided for breach if same could be explained and injustice had not been caused any party to the Judgment that was delivered outside the target period.
Thirdly, reasons justifying the act of a Court or tribunal is only relevant where the Court or Tribunal has the jurisdiction to act in the first place. Where the Court or tribunal completely lacks the jurisdiction to do the particular act, it does not matter for what reason the Court did that which the law did not empower it to do. Any step taken by a Court including the announcement of its judgment in chambers rather than in ‘Public’ that has not been sanctioned by the law, having proceeded without the necessary jurisdiction is null and void see Madukola v. Nkemdilim (1962) 2 SCNLR 341 and Atolagbe v. Awuni (1997) 9 NWLR (Pt 522) 536.
Lastly, Appellants, in respect of the waiver by parties of their right under S.36(3) vis-a-vis the illegal delivery by the Court of its judgment in chambers, must be left again with the dictum of Ogundare JSC (as he then was) in Barri’s case as follows:-
“The right provided under S.33 (3) and order 37 rule (sic) is a public right for “every Court of Justice is open to every subject of the king” per lord Halsbury in Scott v Scott (supra). “The Court must be open to any who may present themselves for admission” per lord Blanesburgh in Mepherson v Mcpherson (supra).
Secret trials, whether civil or criminal are not norms of a democratic society. True, there are strictly defined exceptions in the proviso to sub-section 13 of section 33 of the Constitution to the right of the Public to free access to Court proceedings. The case at hand does not come within these exceptions. Being a public right, therefore, the Defendant nor any party to the Suit cannot waive the right see Ariori v Elemo (1983) 1 All NLR 1″.
The point has earlier been made in this judgment that S.33 of the 1979 Constitution under which Barri’s case was decided, is par materia to S.36 being considered in the instant case. To that extent the principles enunciated in Barri’s case including the foregoing are applicable to the facts of the present case. See: Ngwo v Monye (1970) 1 All NLR 91, Ofunne v. Okoye (1966) 1 All NLR 94 and N.A .B v Barri Engineering (Nig) Ltd (supra). It was not open to any of the parties to the instant case, for the reasons adumbrated in the above dicta, to waive the right donated under S.36 (3) of the 1999 Constitution. The right is a public one!
Appellants’ final submission under their 4th issue is to the effect that the Supreme Court’s decision in NAB Ltd v Barri Engineering (Nig) Ltd supra does not have binding force because same had evolved without the necessary jurisdiction. It is contended that only five Justices had sat and determined the Constitutional issue raised in the case instead of the seven required by the Constitution.
One is unable to see what help this argument renders the Appellants. It must always be remembered that a subordinate Court cannot depart from the decision of the Supreme Court because it considers same to be wrong. It will be utterly impertinent to even attempt that. Only the Apex Court has the jurisdiction to revisit its decisions and where appropriate overrule itself. Until that has happened, all subordinate Courts are bound by the apex Court’s decisions as wrong and/or illegal as they might seem to be. The Supreme Court’s decision in Sadiku v Dalori (1996) 5 NWLR (Pt.447) 151, for example, though per incuriam, ruled the Judicial terrain until the apex Court itself subsequently departed from the decision in Adisa v. Olayinwola (2000) 10 NWLR (Pt.674) 116. In the instant case, even if the Supreme Court’s decision in Barri’s case is, as contended, given without jurisdiction, the Appellants and indeed this Court, must bow to its authority. And notwithstanding Barri’s case, we must still be bound by the Oviasu’s case which the former re-echoes.The Apex Court’s two decisions apart, the decision of this Court in Abarshi v. Cop (Supra) also restates the principle enunciated in the two decisions of the Supreme Court, including the one being attacked by the Appellants. The Abarshi case again has a binding force on this Court. Appellants have not advanced any reasons and one has not found any, why in determining the instant case this Court should depart from its earlier decision. In sum, all the three decisions alluded to by counsel and on the basis of which the issue being considered has been determined are binding and applicable to the facts of the instant case. This Court cannot depart from them see: Adisa v. Olayiwola supra and Nwangu v. Ukachukwu (2000) 6 NWLR (Pt 662) 674.
In resolving the crucial issue raised by both parties under their 4th and 3rd issue for the determination of the Appeal in favour of the Appellant, the entire proceedings of the lower Court must be said to have been vitiated as a result of the Court’s breach of S.36 (3) of the 1999 Constitution, when it delivered its judgment in chambers. Nothing is left in the proceeding of the Court in relation to which the other issues formulated by parties to this appeal would be considered. In resolving the crucial issue, therefore, the entire Appeal is also determined. The Appeal has merit. It is allowed. The entire proceeding of the lower Court, including judgment being in violation of S.36 (3) of the Constitution is hereby set-aside. As parties and the lower Court are equally to blame for the breach and eventual nullification of the Court’s proceeding, no order is made as to costs.KUMAI BAYANG AKAAHS J.C.A.: Sections 36 (1) & (3) and 294 (1) and (5) of the 1999 Constitution provide as follows:-
“36 – (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.
(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public’
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.”
(5) 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 subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The circumstances leading to the delivery of judgment in Chambers have been stated by the learned trial Judge. However, it is pertinent to point out that what is being contemplated in Section 294(5) as alluded to by the learned trial Judge is the delivery of the judgment beyond the ninety days after the conclusion of evidence and final addresses and the furnishing of the parties in the cause or matter with authenticated copies of the decision within seven days after the decision has been delivered not the delivery of judgment outside the place designated as a courtroom or public place where people may not readily have access to.
My learned brother, Muhammad, J.C.A. has in the lead judgment expounded on the theory of stare decisis which binds this court. Until a full panel of the Supreme revisits the decisions in OVIASU VS. OVIASU (1973) 1 All NLR 730 and NIGERIA ARAB BANK LTD VS. BARRI ENGINEERING LTD (1995) 5 NWLR (PT 413) 257 and decides to overrule them, any decision which is given in contravention of Section 36(3) of the 1999 Constitution will of necessity be declared a nullity. There is no gainsaying the fact that parties cannot by consent abridge the provisions of the Constitution or any statute that specifically prohibits an act which is a public right. The appeal therefore has merit and it is hereby allowed. The entire proceedings of the lower court including the judgment are declared a nullity as the said judgment was delivered in violation of Section 36(3) of the 1999 Constitution. No order on costs is made.MOHAMMED LAWAL GARBA, J.C.A.: The Respondents initiated the suit in the Court below, which resulted in the present appeal.
The case proceeded to hearing after the settlement of pleadings and ended with final addresses from Counsel on the 16/5/01, when the lower Court also visited the locus inquo. The Court did not give a date for delivery of judgment on the 16/5/2001, but eventually, the judgment, subject of the present appeal, was delivered by the learned trial Judge; E. F. Longe, J. on the 28/6/2001 in his chambers. On that day after delivering the judgment in his Chambers, the learned Judge said, at page 205 of the record of appeal, as follows:-
“Court: This is the second day that this judgment could not be read in open court because there was no electricity in the Court room, we therefore decided with consent of the parties Counsel to read it in chambers.
It is also agreed there with statutory order that judgment must be read within 3 months overrides the procedural rule, under Order 38 (Rules 1 and 2) that judgment must be read in open Court.
Finally, even though the judgment is read in Chambers anyone who feels bad about that method may have to convince the Higher Court that he has been prejudiced by that method.”
It is apparent from the reasons given by the learned trial Judge above that he was under the very wrong impression that the requirement that the decision of a Court of law, his own in particular, was a mere procedural rule contained in Order 38 Rule 1 and 2 of the lower Courts’ Rules of civil procedure.
The correct position, as stated in the lead judgment and decided in countless judicial authorities, is that the requirement is a fundamental requirement by the Constitution of our Country which cannot be glossed over by either the parties or the lower Court or even both. In the conduct of proceedings before it, including announcement of its decision/delivery of judgment, the Court below was quarantined within the confines of Section 33(3) of the 1999 Constitution from which it could not be rescued by consent of the Counsel to the parties or lack of electricity in the Court room. In addition to the cases cited on the fundamental nature and binding effect of that Section of the Constitution, see SALAWU V ADZA (1997) 11 NWLR (Pt.527) 14, AUDU v. ALABO (2000) 6 NWLR (Pt.661) 482, MENAKAYA v. MENAKAYA (2001) 9 SCNJ 1 at 19,30-1 and CHIME v. UDE (1996) 7 NWLR (Pt.461) 379.
The learned trial Judge appeared to have been lost in his attempt at searching for reasons to justify what was clearly a deliberate and flagrant violation of the Constitution when he referred to Section 294(1) of the same Constitution.
This latter Section requires that decision of a Court shall be delivered not later than ninety (90) days after the conclusion of evidence and final addresses. This Section cannot avail the learned trial Judge as reason for delivering the decision in Chambers, because the period for delivering the judgment in open Court was not to and did not expire on the 28/6/2001 when it was delivered in what one may call “closed court” which the Chambers of the learned Judge was in the context of the Constitutional provision. From the record of appeal, final addresses in the case closed on 16/5/2001 and judgment was delivered forty-two (42) days thereafter; on the 28/6/2001. The judgment was therefore delivered very well within and infact in less than half, the period provided by Section 294(1). Consequently, there was no urgency or even need to deliver the judgment in chambers on ground of the Section.
Before ending this short comment, I wish to say that it is unfortunate that all the resource and time expended in the eleven (11) years that the trial of the case lasted before the lower Court were rendered futile by the very last act of the delivery of the judgment in Chambers of the trial Judge. With the subsisting position of the law as established and restated in the judicial authorities cited by counsel and this court on the issue, the entire proceedings, including the judgment have been rendered a nullity by the delivery of the judgment in chambers of the trial Judge.
For these reasons which are in support of the fuller and more detailed ones contained in the lead judgment of my learned brother,
Other Citations: (2005)LCN/1788(CA)
