Obianwuna Ogbunyiya & Ors V. Obi Okudo (1979)

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IDIGBE, J.S.C. 

The Honourable Mr. Justice Philip Nnaemeka-Agu (Nnaemeka-Agu J.C.A.) of the Federal Court of Appeal, who in June 1977, was a Judge of the High Court of Anambra State, on the 17th day of June, 1977 in the Onitsha Judicial Division of the High Court of the said State, delivered a judgment in favour of the respondents who, as plaintiffs in Suit 0/71/58, claimed against the appellant, as defendants, a declaration of title to a parcel of land situate at Aboh, Ogidi in Anambra State, damages for trespass thereon and an order of injunction to restrain the appellants from further interference with the respondents’ ownership of the said land.

The appellants unsuccessfully appealed to the Federal Court of Appeal holden at Enugu (hereinafter referred to simply as “the Court of Appeal”), from the said judgment of the Honorable Mr. Justice Nnaemeka-Agu (who will hereafter in this judgment be referred to as Nnaemeka-Agu J.). They now appeal to this Court contending as they did in the Court of Appeal that the judgment of the High Court of Anambra State in Suit 0/71/58 is null and void the same having been delivered by the learned Judge when he had no jurisdiction to do so.

For the purpose of answering the question of law upon which this appeal will turn only a brief account is needed of the facts which have given rise to it. The respondents in 1958, filed their claims for title to land at Aboh in Ogidi, damages for trespass thereon and injunction in the High Court of Onitsha in the former Eastern Nigeria (part of which in now Anambra State). After a chequered history in the wake of the Nigerian Civil War and and the creation of States the suit was eventually heard by Nnaemeka-Agu J. who after listening to the address of counsel on both sides on the 13th day of June, 1977, adjourned the matter to 17th June, 1977, when he duly delivered judgment as already stated. Sometime subsequent to this judgment, Nnaemeka-Agu J. was appointed a Judge of the Federal Court of Appeal with effect from the 15th day of June, 1977. There is no evidence in these proceedings of the exact date of appointment; however, for the question of law raised in this appeal the important fact is that the appointment of Nnaemeka-Agu J. as a Judge of the Federal Court of Appeal was made effective from the 15th day of June, 1977, that is, two days prior to delivery by him of the judgement from which the appellants have appealed.

Before the Court of Appeal learned counsel for the appellants, Chief F.R.A. Williams produced a copy of the Official Gazette of the Federal Republic of Nigeria No. 48 of the 6th day of October, 1977, from which he read from the Bar, a Government Notice No 1258 at Page 1478, issued under the seal of His Excellency, Lieutenant-General Olusegun Obasanjo (as he then was) Head of the Federal Military Government (of Nigeria) and Commander in-Chief of the Armed Forces (of Nigeria) and in which it was stated that the Supreme Military Council, acting after consultation with the Advisory Judicial Committee “has appointed Mr Philip Nnaemeka-Agu . . . . a Justice of the Federal Court of Appeal with effect from the 15th day of June, 1977.” Thereafter learned counsel for the appellants urged the Court to hold that on the 17th June, 1977 Nnaemeka-Agu J. had ceased to be a Judge of the High Court of Anambra State and, therefore, had no jurisdiction to deliver the judgment which is the subject of the appeal. It does not appear that Nnaemeka J. was aware of his elevation to the Federal Court Appeal on the 17th day of June, 1977, when he delivered judgment in Suit 0/71/58; on the contrary the facts indicated strongly that he was, indeed unaware of it. Although the Gazette (Le of 6/10/77) was not produced from the witness box nor formally tendered and received in evidence, both counsel for the respondents and the Court (i.e. members of the Court of Appeal) looked at and read the said Government Notice. The Court of Appeal Phil-Ebosie Kazeem, Anya JJ. C.A. rejected the contention of learned counsel for the appellant and in dismissing the appeal held inter alia:

“As there is neither evidence on record nor any produced to us beyond the reference to the Government Notice in the Gazette earlier mentioned, of which we are not bound to take judicial notice, we are unable to accept the argument of lack of jurisdiction Learned counsel for the appellant although unable to produce any judicial decision directly in support of his submission has referred us to the decision of the Federal Court of Appeal in SODEINDE v. THE STATE ( Suit No F.C.A./1B/20/ 77) given on 10th February, 1978 in which that Court held that a judgement delivered by the Chief Judge of Oyo State on a date after he had been transferred to Ondo State as Chief Judge of that State was a nullity. He further contended that under the doctrine of Stare decisis, the Court of Appeal held at Enugu is bound by the decision in Sodeinde (Supra) and ought to have upheld his submissions. On the question whether the Court of Appeal was right in refusing to regard as evidence the publication in the Federal Gazette of 6th October, 1977, relating to the appointment of Nnaemeka-Agu J., learned counsel for the appellants submitted that the Court of Appeal was wrong in its consideration and application of section 73, 112 and 115 of the Evidence Act.

Finally, he submitted that in the circumstances in which the said Gazette was produced, and in view of the fact that it was read by both the Court and learned counsel for the respondents who also made use of it in the course of his arguments and submissions, there was no need for formal admission in evidence of the document (i.e. the Gazette). For the respondents, Mr Afolabi Lardner, submitted that in as much as the Judge (Nnaemeka-Agu J.) had not been sworn as a Judge of the Federal Court of Appeal on the 17th June, 1977, when he gave the decision now on appeal he had jurisdiction to do so since he was, on that date, still a Judge of the High Court of Anambra State. Alternatively, learned counsel for the respondents in a rather weak attempt to support the decision of the Court of Appeal submitted that the onus was on the appellants to produce in evidence the actual date of appointment of the Judge and the date on which he was sworn, as a Judge of the Federal Court of Appeal. In support of his submissions Mr Afolabi Lardner referred us to Section 128 of the Constitution of the Federation of 1963 No 20. (as amended by the Constitution (Amendment) (No 2) Decree of 1976, No 42).

The question for determination in this appeal although of considerable importance is, indeed remarkably devoid of any direct judicial decision, authority or comment. We think, however, that we should approach the issues raised in this appeal by first examining the provisions of sections 112 (a) (i) and 115 of the Evidence Act Cap. 62 in Volume II of the Laws of the Federation of Nigeria (1958 Edition). However, it is necessary to point out, at this stage, that in their judgment, the Court of Appeal erroneously made copious reference to sections 112 and 115 of the Evidence Law Cap 49. in Volume III of the Laws of Eastern Nigeria (1963 Edition) which are inpari materia with the identical sections of the Evidence Act aforesaid. The Evidence Law is an enactment of a State Legislature which is not competent to make any enactment on Evidence in relation to proceedings before the Federal court of Appeal. Sections 115 and 112 (a) (1) of the Evidence Act Cap 62. Vol. II read:

“115: The court shall presume the genuiness of every document purporting to be the London Gazette or the Official Gazette of Nigeria or of a Region or the Gazette of any British Possession or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by the Queen’s Printer, and every document purporting to be a document directed by law to be kept by any person if such document is kept substantially in the form required by law and is produced from proper custody. ”

italics supplied by this court.

“112: The following public documents may be proved as follows:

(a) all proclamations, Acts of State, orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or the Government of Nigeria in any Region thereof or of any local Native authority

(i) which appear in the Official Gazette of Nigeria or of a Region, by production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.

(ii)…