Gbaniyi Osafile & Anor V. Paul Odi & Anor (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

There are two separate appeals in this case each supported with its separate set of briefs. The first raises a somewhat novel issue as to the value, if at all, of a judgment, which has been declared null and void. The second challenges the judgment of the Court of Appeal, Benin Division on the re-hearing on the merits of the case.

Because of the novelty and importance of the points raised in the first set of briefs, we decided to take that appeal first and, if our conclusions thereon still so warrant, to take the second appeal. In my statement of facts therefore I wish to try as much as possible to limit myself to those facts of the case which are sufficient to give meaning to the issues in contention in the first appeal.

The case itself started in 1969 in the High Court of Asaba Judicial Division of the Midwestern State of Nigeria as suit no. AG/1/69. The claim was for a declaration of title to a piece or parcel of land known as and called Idumu Ozoba situated and lying at Umunede. The plaintiffs also claimed for an injunction against the defendants as well as damages for trespass said to have been committed in 1968.

After a full hearing by Obi, J. he granted to the plaintiffs the declaration they sought, awarded N300.00 for trespass against the defendants and, subject to the liberty of any of the defendants having any crops on the land in dispute to reap them, permanent injunction against them.

From that judgment which was delivered on the 29th of July, 1980 the case has had a chequered career.

In the first appeal to the (Federal) Court of Appeal, Benin city, the judgment of the learned trial Judge was confirmed. On the defendants’ further appeal to this court, the court in the now celebrated case of Odi v. Osafile (1985) 1 N.W.L.R. (Pt. 1) 17 declared the judgment of the Court of Appeal null and void on the ground that it was delivered more than 3 months limitation of time within which to deliver such a judgment under section 258(1) of the constitution of the Federal Republic of Nigeria 1979. The case was remitted to the Court of Appeal for hearing de novo before another panel. I should mention that the first appeal before the Court of Appeal was heard and determined by that court composed of Omo-Ebo, Agbaje and Okagbue, J.J.C.A.The second hearing was however, by the Court of Appeal, coram Ikwechegh, Mustapher and Ajose-Adeogun, J.J.C.A.This latter panel reached a conclusion different from that of the earlier panel, they allowed the defendants’ appeal, set aside the judgment of the High Court and dismissed the plaintiffs’ claim.

Now, how did this particular appeal arise The learned counsel for the respondents before the Court of Appeal at the second hearing, who are the appellants now before this court in several portions of the respondents’ brief gave notice that they would rely on portions of the nullified judgment of the Court of Appeal. Because of the materiality of both the form and contents of such notice in this appeal, I shall set them out here. At p. 2 in paragraph 1.2 of the said brief it was stated:

“The respondents intend wherever necessary to invite this Hon. Court to adopt its opinion given on the 10th day of March, 1983 with respect to any relevant issue.”

I may observe that no particulars of where such relevant issues arose or of the previous opinion of the court were given. Also at p. 4 of the said brief it was stated:

“It is clear that the two villages of Umenede which were represented as plaintiffs in the suit herewith are not the two villages of Umenede which were represented as defendants in W/37/52. The respondents adopt the reasoning of the Court of Appeal in the judgment delivered on the 10th day of March, 1983 at pp. 5-13. This Honorable Court is urged to adopt the opinion.”

On the issue as to whether the appellants were represented in suit no.W/37/52, the submission of counsel in the respondents’ brief again ended thus:

‘Again the respondents notify this Honorable Court to adopt the reasoning at pp. 5-13 of the decision given during hearing on the 10th day of March, 1983.”

Similarly notices were given in similar words with respect to the subject matter at p. 5 Para. 3.4. Then at p. 8 Para. 6.3 on the “applicable law” the brief stated:

“See the case of Okoh v. Olotun and Ors 20 N.L.R. 123 at p.125, and the opinion of this Honorable Court at pp. 11-12 of the judgment delivered on the 10th day of March, 1983.”

I may emphasize at this stage that no certified true copy of the earlier judgment of the Court of Appeal which had been nullified by this court was produced before the Court of Appeal during the second hearing. No extracts of the opinions of the court to be relied upon were exhibited or produced in anyway. There were only page and line references to such opinions at places. So the present respondents in their” “Appellant’s Reply Brief” dated 15th day of May, 190pt raised a preliminary objection to the way and manner these opinions of the Court of Appeal in the nullified judgment were incorporated into the respondents’ brief. The objection was in these words:

“2. PRELIMINARY OBJECTION

2.1 TAKE NOTICE that the appellants will, pursuant to Order 3 Rule 15 of the Court of Appeal Rules 1981 as amended in 1984, raise by way of preliminary objection the following:

That the following portions of the respondents’ brief be deleted. That is:

(a) Page 2 paragraph 1.2.

(b) Page 4 Lines 4-7 from the words:-“The respondents adopt. . . to adopt the opinion.”

(c) Page 4 paragraph 3.2 Lines 5-8 from the words:-” Again the respondents. . . 10th day of March, 1983.”

(d) Page 5 paragraph 3.4 Lines 11-13 from the words:-“The respondents further. . . 10th day of March, 1983.”

(e) Page 5 paragraph 3.4 Lines 24-25 from the words:-“The respondents finally. . . pages 25 to 27.”

(f) Page 8 paragraph 6.3 Lines 7-8 from the words:-“and the opinion. . . 10th day of March, 1983.”

AND TAKE NOTICE that the ground upon which the objection is based is that the judgment relied upon by the respondents in the said portions had been set aside by the Supreme Court in Paul Odi & Anor.v. Ghaniyi Osafile reported in (1985) N.W.L.R. (Pt. ) 17 and thay is a nullity and is of no effect whatsoever.”

The appellants, now respondents, submitted that when a judgment is set aside on appeal, it is a nullity. It is of no effect whatsoever. It is non-existent. It is as if it had never been given. It therefore cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise. The following cases were cited in support:

Akpene v. Barclays Bank (190pt) I S.C. 47 and 59;

N.H.D.S. v. Mumuni (190pt) 2 S.C. 57 at pp. 85-0pt;

Peenok Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 at pp. 100-101;

Uttah v. INDEPENDENCE Breweries. (1974) 2 S.C. 7 at p. 10;

Animashaun v. Osuma (1972) 4 S.C. 200 at p. 212.

Learned counsel for the respondents, that is the present appellants also filed what they called “Respondents’ Reply/Objection to Appellants Preliminary Objection/ Objection to Preliminary Objection.” It was dated 20th May, 190pt. In a nutshell, he submitted that whether or not the court can make use of a nullified judgment in the determination of the appeal was a point of substantive law and not procedural law and relates to the merit of the appeal. So, it was not a matter for preliminary objection as the respondent(i.e. the present appellants) had not breached any rule of procedure. To argue that a nullified judgment does not exist would lead to absurdities, as such judgments are only a nullity in law and not in fact. It was finally submitted that the opinion which the court expressed in the said judgment was not necessarily nullified, it was the legal effect of the judgment that was nullified.

It does not appear from the record that the matter was pursued separately in oral argument before the Court of Appeal. But Ajose-Adeogun, J.C.A. who delivered the lead judgment in court and with whose opinion Ikwe and Mustapher, JJ.C.A. concurred, after quoting the opinion of Swanwick, J in the English case of Ealing London Borough Council v. Race Relations Board & Anor. (1971) 1 Q.B. 309 at p. 312 said:

“Following the above submission, respondents’ counsel declared at page 2 of his brief that he intended “wherever necessary to invite this Honorable Court to adopt its opinion given on the 10th day of March, 1983 with respect to any relevant issue.” This disturbing intention of counsel was indeed carried out in some portions of his argument in the respondents’ brief (pages 4, 5, 7, 8) especially where he prayed in aid certain pages in the past judgment of this court which had already been declared by the Supreme Court to be a nullity. So, it is understandable when the appellants, in their reply brief, raised objection to the said portions in the respondents’ brief, which referred to the already nullified judgment.

The aforesaid attempt by respondents’ counsel to influence this court, consisting of a different panel of Justices, by the previous but nullified conclusions even though described as opinions of its predecessors in respect of the same appeal is, in my view, a novel and an improper one.

As rightly submitted by learned counsel for the appellants, a judgment set aside as a nullity ceases to have any effect whatsoever, for it is null and as if it had never been given. I therefore agree with the conclusion of appellants’ counsel that such judgment “cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise.”

Reference was specially made to the cases of Akpene v. Barclays Bank (190pt) 1 S.C. 47 at 59 where the Supreme Court adopted the view of Lord Denning in Macfoy v United African Company Ltd. (1961) 3 W.L.R. (P.c.) 1405 at 1409, to the effect that “You cannot put something on nothing and expect it to stay there. It will collapse.”

I have found it necessary to deal right now with the above mentioned attempt of respondents’ counsel to relate the present appeal to conclude views or opinions already taken in the previous nullified appeal in the same case and the objection of appellants’ counsel to the said attempt. This is moreso, not only because both parties raised the issues in their respective briefs but also to avoid any possible belief that the present appeal is being teleguided and therefore prejudiced by the previous but already nullified judgment of this court on the same appeal.

Consequently, I do not propose to read the same judgment, let alone considering or, even worse, adopting any opinion, view or conclusion therein as being suggested by respondent’s counsel. The duty of the court is to consider afresh the present appeal on the merits of each party’s case of proceedings and on the merits of the augments contained in the new briefs, minus the aforesaid offensive portions.”

It is this opinion by the Court of Appeal that is crux of the present appeal.

The learned senior advocate of Nigeria for the appellants who filed one ground of appeal, with particulars on the points formulated an issue for determination in these words:

“Is the court below correct in refusing to read or consider its earlier opinion which was declared a nullity by the Supreme Court for the purpose of determining the relevant issues in this appeal”

He also formulated a subsidiary issue in these words:

“If the answer to the main question is in the negative, what order should this court make in the circumstances”

Counsel on both sides filed their briefs of arguments and addressed us orally. The learned counsel for the appellants, Chief Williams, S.A.N. submitted that when a judgment or order is declared or adjudged to be a nullity, it only means it is devoid of any legal consequences. So it cannot be enforced by the party in whose favour it was given or made. But that does not mean that the judgment or order is non-existent. Nullity is not equivalent to nothing. In support he cited the case of Kpema v. State (190pt) 1 N.W.L.R. (Pt. 17) 396 at 408. Also Peenok Investment Ltd v. Hotel Presidential Ltd. (1983) 4 N.C.L.R. 122 at p. 163. He submitted that although such a judgment has no legal consequences it exists as a fact and can be relied upon as an opinion must as any other opinion. His main targets of attack were on the statement of the Court of Appeal that such a judgment is “non existent” and “cannot constitute an opinion of the court that gave it.”

In submitting that such a judgment which has been nullified may be regarded as the opinion of the Judge who delivered it, he relied on the dictum of Swanwick, J. in Ealing London Borough Council v. Race Relations Boards (1971) 1 Q.B. 309 at p. 312; also Forfie v. Seifah (1958) A.C. 59. He further submitted that the clear refusal of the Court of Appeal to consider the appellants’ case on the basis of the previous opinion of the same court at an earlier hearing which they adopted as part of their case in the Court of Appeal was a misdirection which deprived the appellants of their constitutional right to fair hearing. He cited: Adigun v. Attorney-General Oyo State (1987) 2 N.W.L.R. (Pt. 53) 678. He therefore urged the court to allow the appeal and either remit the case to the Court of Appeal for a proper hearing and consideration or hear the appeal itself.

In his own submission, learned counsel for the respondents, Mr. Oyetibo, after drawing the attention of this court to the dictionary meanings of the word “opinion”, submitted that an opinion must be predicated on something. But a judgment declared a nullity, is of no effect whatsoever. It is as if it had never been given, and so cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise. In support he relied upon the opinion of this court in Fadiora v. Gbadebo (1978) 3 S.C. 219 at pp. 235 and the several cases cited therein, including: Gipps v. Gipps & Hume. (1844) 11 H.L. Cas. 1 ; Roe v. R.A. Naylor Ltd. (1916) 21 C.L.R. 509

Also: Venn v. Tedesco, (1926) 2 K.B. 227 and Smith v. Stroud, (1926) 42 T.L.R. 372 Akpene v. Barclays Bank, (1977) 1 S.C. 47 at p. 59 and Kajubo v. The State, (1988) 1 N.W.L.R. (Pt. 73) 721 at pp. 732-733.

Counsel also submitted that in any event, the opinion in the previous decision, which was being relied upon, was not before the Court of Appeal at the second hearing. The copy of the proceeding was not exhibited; portions of the nullified judgment being relief upon as opinion were not extracted and exhibited in the motion papers only page and line references of the opinions which might have existed only in the registry of the court were mentioned in the motion paper. The court could not take notice of the proceedings before another panel different from the one that heard it, he submitted.

In his further reply, Chief Williams submitted that as the reason given by Ajose-Adeogun, J.C.A. for not looking at the previous judgment and the opinions therein which were seeking relief upon was not that they were not before him, it cannot be relied upon in this court, there being no respondents’ notice. In any event, the previous judgment was in the registry of the court, every court will take judicial notice of its record.

I believe it is useful to begin my consideration of the main issue for determination in this appeal by advising myself that a judgment in a civil case is made up more or less of five distinct parts. These are; the introduction of the issue in controversy between the parties, the cases of either side to the litigation as revealed on the pleadings, the evidence called by either side in support of its case, the resolution of the issues of fact and of law put forward by each party, and the court’s conclusions based on the resolution of the issues and the claims before the court. It is only in the resolution of issues and the conclusions that the “opinion” of the court as I understand it to have been used in this appeal is relevant. I must not, I believe, confuse it with the meaning attached to the word in England where it refers to the speech or a whole judgment of a law Lord delivered in the House of Lords, or in the United States where it refers to the entire judgment of a superior court.

It is in the con of the use of the word with reference to the United States and House of Lords’ decision that Black’s Law Dictionary (5th Edn.) at p. 985 defined “opinion” as:

“The statement by a Judge or Court of the decision reached in regard to a cause tried or argued before them expounding the law as applied to the case and detailing the reasons upon which the judgment is based.”

This equates an “opinion” to the entire decision which would include other parts of a judgment. But clearly the appellants are not saying that the Court of Appeal on the second hearing should have simply rubber stamped and handed down again the previous decision of that court differently constituted. A more relevant definition of the word “opinion” in the sense it is used in this appeal is to be found in Words and Phrases Permanent Edition Vol. 29A at pp. 495-496 where “opinion” was defined thus: “An ‘opinion’ of the court is a statement by the court of its reasons for its findings, conclusions, or judgment …”

I adopt this, and only add that it also includes not only the reasons but also such findings or conclusions in such a judgment. So, an “opinion” is the reasoning and conclusion of a Judge on the issue or issues in contention before him. It is in this con that I shall consider the real points raised by this appeal.

Now, it is common ground that a judgment nullified is devoid of any legal effect. It cannot be relied upon for a plea of estoppel per rem judicatam. This court said that much in the case of Fadiora v. Gbadebo (1978) 3 S.C. 219 at pp. 235 where my Lords, Fatayi-Williams, Idigbe and Obaseki, JJ.S.C. stated:

“Put in another form the question is: what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal of a case on appeal before that court We think that in trials de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judge’s findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The court of second trial therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. This is the reason why it is a fundamental principle of the doctrine of res judicata that “no finding of the court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel”; and over the years this principle has been allowed by a number of important decisions, and we will mention a few in chronological order and also refer to important observations in some of them. ”

This deals with the legal effect of a nullified judgment where a retrial has been ordered. So do many cases cited in argument or referred to by the learned counsel for the respondent. The case of Gipps v. Gipps Hume (1861-73) All E.R. Rep. 138 dealt with the question whether the consent of a jury which had been dispensed with on a trial of a petition for divorce would still subsist on an order of retrial. It had nothing to do with any opinion on any issue in the cae. The case of Roe v. Naylor Ltd. (1918) 87 L.J.K.B. 1598 was an unsuccessful attempt to use the finding in an abortive trial as evidence on a retrial. The same principle was involved in the Australian case of Gray v. Dalgety & Co. Ltd. (1916) 21 C.L.R. 509. Also, in Venn v. Tedesco (1926) 2 K.B. 227 the court resisted the attempt to prevent it from taking at a new trial a point which arose on the pleadings but which had not been taken in the first trial. The case of Akpene v. Barclays Bank (1977) 1 S.C. 47 had nothing to do with a retrial, but with the validity of a mortgage deed. Utta v. Independent Breweries Ltd. (1974) 2 S.C. 7 at p. 10 deals with the effect of a judgment based on the report of a referee appointed by the illegal High Court of Biafra. So, all the cases cited or referred to by learned counsel for the respondents go to reinforce the point conceded by learned counsel for the appellants, id est., that a judgment which has been nullified is devoid of any legal effect. So, such a judgment cannot be relied upon for a plea of estoppel.

But none of the cases so far discussed attempted to answer the points of difference between counsels on both sides in this case. Does such a judgment exist as a fact or does its nullification, as it were, wipe it out of existence entirely If it still exists, can it be relied upon as an opinion of the court that gave it I must observe that in trying to answer these important questions, learned counsel for the respondents tried to take umbrage under the state of Lord Denning in Macfoy v. United African Co. Ltd. (1961) 3 W.L.R. 1405 at p. 1409, P.C. where he said:

“Any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect…” If an act is void, then it is in law a nullity. It is not only bad but also incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

With respect to the learned counsel for the respondents, it appears to me that the very eminent Lord Justice’s aim in this much misquoted and misapplied dictum was again talking of the effect in law of a judgment being declared void. It is “automatically null and void without much ado” and “every proceeding which is founded on it is also bad and incurably bad.” His Lordship did not say that it ceases to exist as a fact. I agree with Chief Williams that there is a world of difference between saying that a judgment has no legal effect or consequences and saying that it is non-existent; between giving a judgment which is a nullity because, say, it was given without jurisdiction and saying that no judgment was given at all. The learned Justice of Appeal was, therefore, in error when he held that because the previous judgment of the Court of Appeal had been nullified by this court for having been delivered more than three months of the conclusion of the final addresses, it follows that the judgment was non-existent. In my view, although, by its being declared a nullity, the judgment had no more any legal effect, it continued to exist de facto.

As for whether such a nullified judgment can be relied upon as the opinion of the court or Judge who delivered it, it is helpful to note that a judicial opinion may be either binding, persuasive, or merely obiter. An extra judicial opinion may persuade a court, which may adopt it; or may fail to do so if the court considers the proportion of law, which it espouses as incorrect. When a judgment has been declared null and void, and so of no legal effect, it looses its binding and persuasive effect as a judicial opinion. But it exists and like the opinion of any other writer, may be adopted in argument or even accepted and adopted by a court in its judgment. It is, of course, true particularly in the appellate courts that the old practice whereby the opinion of a writer could be adopted in court only long after his death is no longer the vogue. We no longer insist upon the old rule that only the opinion of the illustrious dead could rule the living in our courts. If a contemporary jurist puts forward a convincing proposition on a recondite point of law on which there is no decided authority there is now nothing wrong with a court accepting and applying it, particularly in the top echelon of our judicial hierarchy. The eminent Lord Justices of the House of Lords recently bore testimony of the fact that this breeze of change is also blowing through the highest appellate courts in Britain see Lord Diplock in “A.L.G. – a Judge’s View” (91 L.Q.R. (1975) 457 at p. 459); also Lord Reid:-“The Judge as Law Maker” p. 22. So, it cannot be a valid objection that the Judge who delivered the judgment is still alive. A clear suggestion that the effect of the nullification of the judgment is only to rob it of its legal effect and that in spite of its nullification it still exists as an opinion of the court that gave it is contained in the decision of Swanwick, J., in Earling London Borough Council v. Race Relations Board & Anor. (1971) 1 Q.B. 309 at p. 312 where he said:

“I am however naturally anxious to save duplication of effort and legal costs; and I have, therefore, consented to listen to argument on both issues and to give my decision on both, whatever it may be, to the end that, if it should be determined by me or on appeal that this court has jurisdiction, my judgment on the substantive question should, if it stands, be binding on the county courts. If of course it should be determined by my unchallenged decision or on appeal that this court has no jurisdiction. my decision on the substantive point will amount to no more than an expression of opinion.” (italics mine, for emphasis).

The judicial committee of the privy council put the matter even clearer when it stated in Kofi Forfie, Odikro of Marbanv v. Barima Kwabene Saifah Kenyasehene (1958) A.C. 59 at page 65 thus:

“To say that a judgment is a nullity is not to say that the judgment is not a judgment for any purpose, and in particular, that it is not a judgment within the meaning of the term in Ord. 41. Their Lordships are of opinion that the term in Ord. 41 means nothing more than an adjudication by a Judge upon rights of parties. If made without jurisdiction, it would be ineffectual, but the effectiveness or otherwise of the judgment is not relevant to the question whether it is a judgment.”

I entirely agree. A judgment delivered without jurisdiction or nullified for any other cause continues to exist as a judgment, although it will be ineffectual, invalid, or even unlawful. It is no longer in the eyes of the law an effective adjudication on the rights of the parties, or per se, in appropriate metaphor, a legal foundation upon which any lawful right could be hoisted; but it exists in point of fact. It remains the opinion of the court or Judge that delivered it, for what it is worth. The case of R. v. Almon (1765) W.N. 234 was never delivered; but the opinion in it has been relied upon in many cases.

As it is so, it is my considered opinion that such opinions expressed by a court in a judgment that has been nullified, if properly brought before another court, could be used, like any other opinion, say, in a book. For this reason, there is force in the argument of Chief Williams when he submitted that by a court refusing to consider a party’s argument adopting such an opinion in its brief simply because the party has adopted an opinion of a court in a judgment that has been nullified as having been given without jurisdiction could amount to a misdirection.

Indeed, it could, in a proper case, be tantamount to refusing to consider the party’s case- an infringement of the party’s guaranteed right of fair hearing. Whether or not the opinion is right is quite an irrelevant consideration. For it is settled that a court is bound to consider every material aspect of a party’s case, no matter its merit. But I must add that the opinion in the nullified judgment must be properly raised at the re-hearing.

This brings me to the manner in which reliance on the opinions of the Court of Appeal in the nullified judgment was raised in this case. As I have stated, the Court of Appeal differently constituted delivered the previous judgment. That previous judgment was not before the new panel in any way. No extracts of the opinions said to be relied upon were highlighted in the brief. The principles or legal propositions propounded in the said opinions were not even clearly set out. Only page and line references of them were made in the brief. Worse, it does not appear that the points were taken up in oral argument so as to have enabled counsel to, perhaps, draw the court’s attention to the passages if they were available. So, the learned counsel for the respondents argued before us that even if the appellants could have relied upon portions of the judgment as expressions of opinions by the former panel of the Court of Appeal, the court could not have taken notice of that when the judgment was not exhibited to the motion paper or otherwise produced before the court on the rehearing.

I think I should first dispose of the submission of Chief Williams in his final reply, to wit: that this point was not the ground upon which the learned Justice of Appeal refused to look at the expressions of opinion contained in the nullified judgment. He simply stated that the judgment was non-existent. As, without a decision on the above point, the decision of this court on the substantive issue could be no more than an expression of a mere academic and hypothetical opinion a course which this court has stated several times that it has neither the jurisdiction nor the intention to take,we decided to hear counsel on both sides on the point, even though it was a point which could have been properly raised under a respondents’ notice.

This course is of course permitted by the rules (see, for example, order 8 rule 3(6) of the Supreme Court Rules, 1985). Besides, our consideration of the point is necessary for the determination of the real question in controversy in the appeal within the meaning of section 22 of the Supreme Court Act. Indeed the subsidiary issue framed for the appellants in their brief envisages it. But let me emphasize that although such powers, no doubt exist, they are such that this court does not want to make a habit of drawing therefrom constantly so that it does not give the wrong impression that it is taking sides in matters in controversy before it. A respondent’s counsel should always make his own decision and file a respondent’s notice whenever necessary, otherwise he may find that he cannot advance a certain line of argument. I am invoking the power in this case because it is necessary for my decision in the case and has been raised by the subsidiary issue and was fully argued. So, although I have held that the learned Justice of Appeal was in error to have held that he could not look at the earlier judgment of the Court of Appeal, which had been nullified by this court because it was non-existent, I should go further to consider whether the matter was in fact properly raised, that is: if he had directed himself correctly, would he have arrived at a different conclusion.

This attitude is informed by the fact that it is now a well-known policy of this court that it is not every slip of a lower court that will result in an appeal being allowed, it is only those mistakes that have been shown to have affected or influenced the decision appealed against that result in the appeal being allowed see on this- Onajobi v. Olanipekun (1985) 4 S.C. 156 at 163, also Jude Ezeoke and Ors. v. Moses Nwagho and Anor. (1988) 1 N.W.L.R. (Pt. 72) 616 at p. 626. Before I can consider whether it was rightly rejected, and what order to make I must first consider whether it was properly raised in the brief.

Then to the question: were the opinions contained in the nullified judgment properly raised before the Court of Appeal on the re-hearing Or could the court have taken notice of them Learned counsel for the appellant submitted that because the former judgment was part of the record of the Court of Appeal, notwithstanding that it was differently constituted, it was a matter of which the court at the re-hearing could have taken judicial notice. In effect, that the principle that a court can take notice of its own proceedings and records would apply when the sitting panels of the same court are different. Learned counsel for the respondent, on the other hand, submitted that as the Court of Appeal was differently constituted, it could not have taken notice of the earlier judgment in which none of the members of the second panel took part, as the judgment was not exhibited or relevant extracts thereof highlighted in the brief. Page and line references in the brief, of a judgment, which was not before the court at the re-hearing, are not enough. It must be appreciated that this case raised a much more difficult and fundamental issue than was raised before this court in the case of Obianwuna Ogbunyiya and Ors. v. Obi Okudo and Ors. (1979) 6-9 S.C. 32. In that case the issue was whether an official gazette containing notice of the date and the fact of appointment of a Judge which was produced by counsel from the Bar and read by the court and counsel without formal admission in evidence could be taken notice of as proof of the facts contained therein. That court answered the question in the affirmative.

In this case, it is whether the contents of a nullified judgment which was probably in the archives of the court, and which was never placed before the court and which the members of the court at a re-hearing were not shown to have ever had the opportunity of seeing, could be judicially noticed.

No doubt, as a general proposition, a court will take notice of its own proceedings and records and take notice of their contents see Vol. 17 Halsbury’s Laws of England (4th Edn.) para. 102 at p. 74. But the real questions which are raised by the peculiar facts of this case are numerous. What is the meaning of its own records and proceedings. Does the expresinclude every document filed in the court’s registry or lying in the archives of the court Will it apply to a case in an appellate court which sits in panels and the particular record and proceeding were before an entirely different panel from the one expected to take judicial notice of it Will the principle include judgments which have been declared null and void, and so have no legal effects, that are not before the court

In argument, we were not referred to any decided case that appeared to have answered the basic problem in the above questions. I shall therefore attempt to answer them inferentially from some decided cases and from general principles. In the case of Craven v. Smith (1869) L.R. 4 Exch. 146 which was referred to in argument, it is clear from a careful reading of the report that what the court was held to be entitled to look at was the lawful record of the same panel of the court in the same case. It cannot, therefore, be regarded as supporting a case like this in which the question is whether a separate panel can take notice of the nullified judgment of an earlier panel.

Even though the courts in England took judicial notice of the law of England as administered in the Court of Chancery (for which see e.g. Sims v. Marryatt 17 Q.B. 281), yet the practice of that court was earlier proved by oral evidence before it would be noticed. Hence, in Dicas v. Brougham Ltd M. & Rob, 309, Lord Eldon had to be called as a witness to prove that practice. In Tucker v. Inman 4 M & Gr 1049 an equity counsel was called for the same purpose. In Place v. Potts 8 Exch. 705 at the invitation of counsel, the court made its own inquiry and

informed itself as to the jurisdiction of the court of admiralty. See also Williams v. Lloyd 1 M & Gr. 671. It seems to me from a view of all the decided cases that matters which can be judicially noticed fall into two broad classes. First: There are those which are so notorious that the court automatically takes notice of them, once it is invited to do so.

Secondly: There are others which, although judicially noticeable, the court will not do so until something is produced, though not formally tendered as evidence, in order to inform the court or refresh its memory on the matter before it notices it. Thus, the court may be invited to, and does, inform itself as to a date (Tutton v. Darke (1860) 5 H & N 649); for a publication in a gazette by the production of the gazette (Ogbunyiya v. Okudo (supra)).

On this broad division of judicial notice, the courts have usually refused to take notice of matters falling within the second category when the material from which it can inform itself or refresh its memory is not produced by the party inviting it to take notice of the particular matter. In Omeron v. Dowick (1809) 2 Camp. 44, Lord Ellenborough declined to take judicial notice of the King’s proclamation because counsel failed or neglected to produce a copy of the gazette in which it was published. In R. v. Holt (1793) 5 T.R. 446 the court held that articles of war of which it was invited to take notice ought to have been produced. Also in Pilkington v. Cooke, 16 M & W. 615, the court refused to take judicial notice of when an order of the Judges, allowing a scale of fees to be taken by the sheriffs, was made.

It appears to me from the decisions in the above cases that the courts will take notice without more of cases falling within the first category of matters that could be judicially noted above; but will, in the case of the second insist on the appropriate material from which it can inform itself or refresh its memory being produced. I believe that the underlining assumption is that cases of the first category are matters of knowledge of which the Judge knows or is expected to know. He is not expected to know or remember off hand matters falling within the second category. But because of their very nature, the court can be informed of them or his memory be refreshed thereon without the matter requiring to be proved by evidence.

In 1900, these principles of the common law became part of our received law, subject, of course, to such changes and modifications as might be introduced by local legislations. By section 73 of the Evidence Act (introduced in No. 46 of 1945) our law of evidence made provisions for judicial notice. Subsection 1 enumerates thirteen matters of which “the court shall take judicial notice.”

The list is not exhaustive. In paragraph (m):

“the course of proceeding and all rules in force in the High Court of Justice in England and in the High Court of the states.” were mentioned.

But then subsections (2) and (3) provide as follows:

“(2) In all cases in the preceding subsection and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.

(3) if the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.”

So, “judicial notice” remains in Nigeria what it is in England, that is to say:

“… facts which a Judge can be called upon to receive and act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”

See Commonwealth Shipping Representative v. P. & O. Branch Services (1923) A.C. 191 at p. 212. Needless to say that it is for the party to lay the foundation and call upon the Judge in the appropriate manner to take judicial notice of the fact, the importance of this point in this appeal will become more obvious soon.

The point that I need to emphasize at this stage is that our law preserves the distinction between those facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection (3) of section 73 of the Evidence Act, he may, when called upon to take judicial notice of the fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so.

When the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take notice of the fact. The only difference is that under section 73(2), even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference.

It follows from what I have been saying that every matter entitled to be judicially noticed has its appropriate and necessary foundation without which it cannot be judicially noticed. It must be noted that judicial notice is an anomalous appendage in the law relating to proof.

Some regard it as part of the law of evidence; but then it has not the trammel of the law of evidence, such as scrutiny under cross-examination, the rules of admission and so on. Save in such cases as ascertainment of notorious custom and of the practice of the Court of Chancery, in which evidence may be required before judicially noticeable in the first instance, it has really nothing to do with the rules of evidence. What is necessary in the case of judicial notice is a proper foundation for that particular type of fact before it could be judicially noticed.

That foundation may be common knowledge, common knowledge reinforced by such information material as the Judge may deem it necessary to consult under section 73(2) of the Evidence Act, statute, the common law, and acquired knowledge under section 73(3) of the act (See Nokes: The Limits of Judicial Notice-74 L.Q.R. 59). As I have stated, judicial notice founded on common knowledge is founded on the Judge’s actual knowledge, experience and memory as a member of society; sometimes however, he finds it necessary to refresh his memory by refering to records, books and reports.

The material foundation of notice of a statute is the production of a copy of the statute; that of any official act is the production of the official gazette. Where the matter to be noticed is an acquired knowledge, the only foundation is the production of the book, document, or other material which will enable the court to do so under section 73(3) of the Act.

In my opinion such is the position in this case. The appellants were obliged to have produced in court a true copy of the judgment which had been nullified and which only could have made their page and line references meaningful. Then they should have called upon the court to take notice of it. At least they could have exhibited, verified extracts or portions of the judgment they wanted to rely upon as opinions. In saying so, I am of the view that once the judgment had been nullified, it could no longer be noticed as law, but as a fact. Being a fact, it could not enjoy any more notoriety than any other opinion in, say, a book lying in a shelf in the court’s library.

It has been suggested that the court could have taken notice of portions of the judgment by virtue of the provision in section 73(1)(m) of the Evidence Act. Now section 73(1) of the Evidence Act enables the courts to take judicial notice of “the course of proceedings and all rules of practice the High Court of Justice in England and in the High Court of the states.” What are the meanings of the expressions “the course of proceedings” and “all rules of practice” within the meaning of that section Are the contents of the record of a nullified judgment part of the course of proceedings or the rules of practice of the court

Now course simply signifies the line, direction, path, or way anything moves. So, “course of proceedings” of a court means the line, direction, path, or way the list in court proceeds. This is, of course, in contradictions to the content of the litigation or the evidence called in support of the case of either party thereto. On the other hand, the “practice” of a court ordinarily means the rules that make or guide the cursus curiae, and regulates procedure, within the precincts of the court.

So, in the technical sense, rules of practice denote the mode of proceedings by which a legal right is determined and enforced, as distinguished from the law, which gives or defines the right. See Lush, L. J. in Poyser v. Minors L.R. 7 Q.B.D. 325 at p. 333; Lever Brothers Ltd. v. Knede & Bagnall (1937) 2 K.B. 87; and Re Shoe smith (1938) 2 K.B. 637. It does not include the mode or material for the proof of that right. So, it appears to me that the point at issue in this aspect of the appeal is neither the course of proceeding nor the rule of practice of the Court of Appeal or the High Court. It is, rather, a rule of proof or of evidence.

Whether the record and contents of a nullified judgment ought formally be produced in court or extract thereof be placed before the court before the opinions expressed therein could be countenanced; or whether the Court of Appeal could have taken notice of their existence and contents by the mere fact that the nullified judgment was probably in the archives of the court.

In Attorney-General v. Sillem L.R. 10 H.L. Cas. 704, it was held that S. 26 of the Queens Remembrance Act, 1859, which empower the Barons of Exchequer to frame rules for making “the process, practice and mode of pleading” on the revenue side of the court uniform with that of the plea side, did not give the Judges the power of entertaining appeals on revenue cases, as they assumed.

It is always necessary to exercise powers conferred by an enabling statute within the four corners of the statute see Australian cases of Tavcar v. Tavcar (1950) A.L.R. 260; White v. White (1947) A.L.R. 342. It therefore appears to me that the power, conferred by S.73(1) of the Evidence Act, for a court to take judicial notice of its course of proceedings and rules of practice cannot rightly be invoked to take judicial notice of the contents of a nullified judgment, which the members had not earlier had an opportunity of seeing.

For true, it existed as a fact, being devoid of any legal consequences, it was then like any other opinion, say, in a book. I do not think that anybody can suggest that such a book opinion should be judicially noticed.

The conclusion I have reached is that in theory, learned senior counsel for the appellants was right in his contention that the learned Judge was wrong to have stated that the appellants could not rely upon the opinions in the nullified judgment because on being set aside, it was non-existent.

But because those opinions were not properly placed before the Court of Appeal at the re-hearing there was really nothing to take notice of. So, the appellants are right on the main issue that the learned Justices of Appeal were wrong to have said that they could not consider the opinions expressed in the nullified judgment because the judgment ceased to exist.

But upon a proper direction the Court of Appeal would have dismissed the appeal on the subsidiary issue in that the proper materials were not placed before the court. I am entitled to make any order they would have made.

I would therefore, dismiss the appeal. It is hereby dismissed with N500.00 costs against the appellants.

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SC.149/1987