Paul Odi & Anor V. Gbaniyi Osafile & Anor (1985)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C 

This appeal raises two important constitutional issues. The first which goes to the extent of the jurisdiction of the Court as the highest and final court of appeal in the Federal Republic of Nigeria is:

“whether the Supreme Court sitting as a full court has jurisdiction to depart from the decision given previously on the same constitutional question by another full court of the Supreme Court.”

The second issue which is no less important is “whether in the instant appeal grounds exist which warrant a departure from the decision in the case Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Anor. (1984) 5 S.C. 79.”

However, before embarking on a consideration of the two very important constitutional issues, a resume of the short history of the proceedings in this matter from its commencement in the High Court to the conclusion of the appeal in the Court of Appeal is desirable.

Proceedings were commenced in the High Court of Justice Midwestern Nigeria, Asaba Judicial Division Holden at Asaba by the respondents against the appellants on 3rd February, 1969 by writ of summons in which the respondents as plaintiffs claimed a declaration of title to a certain piece of land, N400.00 damages for trespass and an order of injunction. The defendants who sued in a representative capacity were (1) Osikpo Nwajei and (2) Odi Onichabor. The matter came up for hearing before Aghoghovbia, J. On completion of pleadings, the learned judge heard evidence and addresses of counsel and adjourned for judgment. He was later transferred from Agbor to Ughelli. He subsequently retired from the Judicial Service of the Midwestern State without delivering his judgment. The matter was later listed before Obi. J. for hearing. He had to carry out a new trial, hearing evidence all over again. But before then, the original 1st and 2nd defendants had died and an order to substitute the present 1st and 2nd for the original dead 1st and 2nd defendants was made on the application of the plaintiffs.

The original 2nd plaintiff became old, feeble, senile and unfit to carry on with the case. Similarly, on the same application, John Emeri was substituted for the 2nd plaintiff.

The learned trial judge heard evidence and addresses all over again and gave judgment for the plaintiff. In the concluding paragraphs, the learned trial judge said:

“I am satisfied that the plaintiffs have been in continuous and unbroken possession of the land in dispute and that they are the owners of it. I also find their complaint of trespass against the defendants established and since the defendants have evinced a determination to continue their acts of trespass, the claim for injunction to restrain them from doing so is also sustained.

I accordingly grant the declaration of title in terms of plaintiffs’ claim. There will be judgment in their favour in the sum of N300.00, damages for trespass. The order for injunction which I will make is that the defendants and members of their Idumu Obi and Idumuaban of Emuhu including their agents, servants or anyone who may purport to act with authority are restrained by way of perpetual injunction from further acts of trespass on the land in dispute shown and therein edged PINK (areas A and B) on survey Plan Exhibit 1.”

This was on the 29th day of July, 1980. Thus it took just over 11 years from the date the claims were filed to the date judgment was given. The cause of the delay was graphically explained in the judgment of Obi, J. as follows:

“The two original plaintiffs were Gbaniyi Osafile and Bakwunye Agbaji both of whom sued for themselves and on behalf of Idumu and Idumu-Ozoba of Umunede. The two original defendants were Osikpo Nwajei and Odi Onichabor sued also in a representative capacity, for themselves and on behalf of Idumu-Obi and Idumu-Aban families of Emuhu.

Pleadings were ordered and duly filed and exchanged between the parties. Thereafter, the case suffered a rather chequered career until it came up for hearing before Aghoghovbia, J. who received evidence to conclusion when he was transferred from Agbor to Ughelli Judicial Division in 1975. Both counsels in the case were requested to submit their addresses in writing to enable judgment in the case to be delivered. They did so but the said judgment did not see the light of the day because in the meantime, the judge who heard the case had retired from the judicial service of the State.

By 1978, the 2nd plaintiff, Bakwunye Agbaji, was said to have become very old, feeble and unfit to carryon with the case. Both the original 1st and 2nd defendants have died. On the application of the plaintiffs, new parties were substituted in the case. By order of court, dated 22nd February, 1978 John Emiri was substituted for 2nd plaintiff, Bakwunye Agbaji and Okwumaso Nwajei and Paul Odi were substituted respectively for the original 1st and 2nd defendants (Osikpo Nwajei and Odi Onichabor). As the names suggest, the new substituted defendants are also direct sons of the two original defendants respectively. These new parties prosecuted the case to finality before me.”

It is tragic that this case continues to be beset with delays peculiarly characteristic of the slow movements of the mechanism of justice and the need to ensure that justice is done and fair hearing given to the parties in the case. The wheels of justice grind slowly but surely till its purpose is achieved.

Aggrieved by the decision of the High Court, the defendants appealed to the then Federal Court of Appeal now the Court of Appeal by notice of appeal dated the 30th of July, 1980. Only one ground of appeal was filed with the notice and it is- “that the decision of the Court is against the weight of evidence.”

Leave was sought and obtained from the Court of Appeal to file and argue 5 additional grounds of appeal.

The appeal came up for hearing on the 24th day of February, 1982. Arguments were heard on the 24-2-82 and concluded on the 25-2-82 when the record of the Court shows the minute:

“Court: Judgment reserved until a date to be announced later.

Signed: J. OMO-EBOH, J.C.A. 25-2-82”

On the 26th day of January, 1983, the Court record reads:

“Court: says that it became necessary to invite counsel to both parties to give further arguments on the point that arose from their submissions as proposed in the question as shown below.

Signed: J. OMO-EBOH.J.C.A. 26-1-83”

“B/18/81

The point is rightly made in arguments arising from the grounds of appeal that the parties are bound by their pleadings. Can it be said that in the face of the pleadings the learned trial judge was right in saying at p. 87 of the record:

“This case is essentially a battle for the correct boundary between the plaintiffs (parties)” .

So, if it is common ground that both communities, that is, the plaintiff’s community and the defendants’ community own land contiguous to each other as the trial judge said at page 87; in the determination of the boundaries between the plaintiffs and the defendants are the principles applicable to action for a declaration of title simpliciter applicable without any reservation

Signed: J. OMO-EBOH, J.C.A.

The court purported to reopen the appeal, and short submissions were heard from learned counsel for the appellants, Chief Gani Fawehinmi and learned counsel for the respondents, Mr. J.B. Iyare on the question posed and as the court record shows, judgment was further reserved sine die. The record reads:

“Court: Judgment reserved until a date to be announced later.

Sgd. J. Omo Eboh, J.C.A. 26-1-83.”

The record of appeal finally shows that the judgment of the Court was delivered on the 10th day of March, 1983. The record reads:

“Court: Written Judgments read in open Court. Appeal dismissed with costs.

Sgd. J. OMO EBOH, J.C.A. 10-3-83

Sgd. R.O. OKAGBUE, J.C.A. 10-3-83

Sgd. B.B. PEPPLE, J.C.A. 10-3-83”

On the above facts, the appellant was granted leave by this Court to argue an additional ground which raised the issue:

“whether the judgment of the Court of Appeal is null and void in view of the decision of the Supreme Court in Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and another S.C. 68;-1982 delivered on Friday the 18th of May, 1984 now reported in (1984) 5 S.C. 79.”

Briefs of arguments were filed both by the appellants and the respondents on this issue and learned counsel addressed the court to amplify and clarify their briefs. Learned counsel for the appellants submitted.

(1) That the facts of Chief Dominic Onuorah Ifezue v. Livinus Mbadugha (supra) are not dissimilar to the facts of the present case.

(2) That the Supreme Court declared the judgment in Ifezue’s case a nullity in that it violated section 258(1) of the 1979 Constitution of the Federal Republic.

(3) That the central point in Ifezue is that the appeal was reopened after 3 months from the conclusion of final addresses by counsel and reservation of judgment.

(4) That the decision in Ifezue was recently followed and applied by the Court of Appeal in the case of Adold/Staman Internal Nigeria Ltd v. Lagos State Development and Properties Corporation, Appeal No. CA/L/117/84 delivered on Friday, the 5th of October, 1984.”

Learned counsel for the appellants contended that what becomes of a judgment delivered after re-opening outside the three months’ period prescribed by section 258(1) of the 1979 Constitution is a point well settled in Ifezue’s case. He concluded his submissions by adopting the words of Nourse, J. in Colchester Estates (Cardiff) v. Calton Industries. PC (1984) WLR 693 at 697.

“There must come a time when a point is normally treated as having been settled at first instance.”

He therefore submitted that the judgment of the Court of Appeal is null and void because it was delivered in breach of section 258(1) of the 1979 Constitution.

Chief F.R.A. Williams, SAN., learned counsel representing the respondents, while conceding the point that Ifezue’s case when followed, will render the decision of the Court of Appeal a nullity, null and void, and of no effect, submitted that the decision in Ifezue’s case was clearly erroneous and being erroneous, the court should depart from it and overrule it. He opened his submissions while two dicta both enunciating the duty of the court to avoid perpetuating the errors of the court in previous decisions to the detriment of the general welfare of the public and advocating a departure from precedent in the interest of Justice and the development of the law.

The first was the dictum of Idigbe, J.S.C. (as he then was) in the case of Bucknor-Maclean & Anor v. Inlaks Ltd. (1980) 11 S.C. 1 at 25. There. Idigbe, J.S.C. adopted with approval the dictum of Lord Morris in Conway v. Rimmer.

Learned counsel submitted that in several cases the Privy Council has held itself free to differ from its previous decisions only with the greatest hesitation. Learned counsel cited Gideon Nkabule v. R (1950) A.C. 379 at 397.398 Cushing Deputy (1880) 5 A.C. 409 at 417 Read v. Bishop of Lincoln (1892) A.C. 644 at 654, 655 Attorney-General for Ontario v. Canada Temperance Federatiqn (1946) A.C. 193 at 206.

The Supreme Court, he observed, did not abandon this Practice. Instead, it has followed it in a number of important decisions. It has done so in Johnson v. Lawanson (1971) 1 ALL N.L.R. 57 where it overruled the Privy Council decision of Maurice Goualin Ltd. & Anor. v. Wahab Atanda Aminu Appeal No. 17 of 1957 decided on 24-7-58; and followed since then in Odeneye v. Savage (1964) N.M.L.R.115 . Williams v. Akinwunmi (1966) 1 ALL N.L.R. Amudipe v. Arijodi (1978) 2 L.R.N. 128 overruling Babajide v. Aisa (1966) 1 ALL N.L.R. 254. American International Insurance Co. v. Ceekay Traders Ltd. (1981) 5 S.C. 81 overruling the Obiter dictum of this Court in Jammal Steel Structures Co. Ltd. v. African Continental Bank Ltd. (1973) 1 ALL N.L.R. (Part 2) 208 Oduola & Ors. v. Coker & Ors. (1981) 5 S.C. 197 which overruled Mobil Oil Nigeria Ltd. v. Abolade Coker (1975) 3 S.C. 175; Nofiu Surakatu v. Nigerian Housing Society (1981) 4 S.C. 26. Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 S.C. 1.; Overruling Shell BP. Co. Ltd. v. Jammal Engineering Co. Nig. Ltd. (1974) 1 ALL N.L.R. (Part 2) 107. Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 15 at pp. 162-163 and 298 at 302 where the doctrine of stare decisis featured.

There is unanimity on the constitutional existence of the rule of stare decisis and its active application by all the lower courts in this country. It is also agreed that none of the above cases dealt with constitutional matters or questions of the interpretation of the provisions of the 1979 Constitution.

Learned counsel prayed the court to be more ready to correct recent decisions in constitutional cases than cases dealing with the interpretation of statutes or statutory instruments. Counsel then submitted that there are no sound reasons why the court should treat its previous decisions on interpretation of the constitutional provisions differently from those of interpretation of the other statutes.

Precedent is an indispensable foundation on which to decide what the law is, there may be times when a departure from precedent is in the interest of justice and the development of the law.

The second dictum commended by counsel to this court is that of the Indian Judge, Das, Ag. CJ. in Bengal Immunity Co. v. State of Bihar (1955) AIR Supreme Court 651 at 673 (2nd column) to 674 (1st column).

In the lead judgment read by Eboh, J.C.A. on the 10th day of March, 1983, the learned justice gave reasons to explain the delay in delivering the judgment of the Court of Appeal in these words:

“After hearing the appeal in this Court on 24th February, 1982, judgment could not be delivered therein within the statutory period of three months because its consideration and preparation were not completed as a result of my prolonged ill-health arising from serious injuries that I sustained following a motor accident I was involved in about mid-April, 1982.

On 26th January, 1983 counsel to both parties were invited before this Court to tender further arguments on points which had arisen during the consideration of the judgment.”

The learned counsel for the respondents in the light of the above reasons, then raised the question:

“whether the decision of this Court in Ifezue v. Mbadugha (Supra) delivered only a few months ago could be departed from and overruled. ”

Learned counsel referred to the historical fact that the Supreme Court has succeeded the Judicial Committee of the Privy Council as the Highest and Final Court of Appeal in Nigeria. This succession also involves succession to all the inherent powers of the court including the powers of overruling previous decisions of the court. The Privy Council had always held itself free to overrule its previous decisions when persuaded that they were erroneous unlike the House of Lord which held rigidly to the doctrine of stare decisis till 1966. Counsel then referred first to American authorities to indicate that the Supreme Court of the US has frequently overruled itself. These cases are:

Brown v. Board of Education 98 L Ed 873, 38A LR 2nd 1180 (overruling Plessy v. Fergusson 41 L Ed 216 on racial segregation matters)

Girouard v. U.S. 90 L Ed 1084 (overruling US v. Schwimmer 73 L Ed 889)

West Virginia State Board of Education v. Barnette 87 L Ed 1628, 147 A.L.R. 674 (overruling Minersville School Dist. v. Gobitis 84 L. Ed. 1375, 127 A.L.R. 1493 as to constitutionality of requirements to salute the flag of USA).

Counsel also referred to Australian authorities. He also referred to the work of Wynes titled Legislative, Executive and Judicial Powers in Australia by Wynes 5th Edition pp. 11 et. seq. especially footnote 90. Learned counsel however disagreed with Wynes on Wynes’ interpretation of the decision of the Privy Council in Attorney-General for Ontario v. Canada Temperance Federation (1946) A.C. 193 at 207 and said that the in the footnote at p. 32 is slightly misleading when it declares in unqualified terms, that the case cited is authority for the proposition that the Privy Council “will seldom depart from previous decisions in constitutional cases.” He was of the view that it would have been more accurate to say that in constitutional cases the Privy Council will seldom depart from a previous decision which had stood for very many years “and which it may be assumed have been acted on both by Governments and subjects.”

He then referred to the Privy Council’s decision in Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. 129 CLR 576 delivered by Lord Diplock which emphasised the legal policy considerations which determines whether or not an erroneous decision should be overruled. He adopted, subject to the above criticisms, the statement in footnote 90.

The decision in the Attorney-General for Ontario’s case (supra) had stood and been applied for over 60 years hence the observation of Viscount Simon at page 206 that:

“Time and again the occasion has arisen when the Board could have overruled the decision had it thought it wrong. Accordingly, in the opinion of their Lordships, the decision must be regarded as firmly embedded in the constitutional law of Canada, and it is impossible now to depart from it.”

Learned counsel then referred to Indian authorities. He was of the view that the position of the Supreme Court of India is probably more proximate to that of our own Supreme Court than that of the court of last resort in any other Commonwealth law jurisdiction as it inherited the jurisdiction of the Privy Council as the court of last resort in India. He referred to the Indian leading case on the question of State decisis in constitutional cases in India that is:

Bengal Immunity Co. v. State of Bihar (1955) AIR 661

Counsel relying on the dicta of Das, Ag. CJ and Bhagwali, J. in the above case submitted, and I agree with him, that the fact that a decision is very recent is certainly not a ground to turn down a request for reconsideration. This Court has not, in my experience, adopted that attitude. Indeed, such requests and re-examination enhance the authoritative effect of the decision if the arguments for its overruling fail. Learned counsel also cited:

State of West Bengal v. Corporation of Calcutta AIR (1967) SC.997, at 100

Sajian Singh v. State of Rajasthan AIR (1965) SC. 855

Golak Nath v. State of Punjab AIR (1967) SC. 1643 at 1670

Counsel then submitted that this Court should not hesitate to overrule its previous decision once satisfied (a) that it is erroneous and (b) that it would be contrary to the public interest and the due administration of justice to leave such a decision uncorrected.

Turning to the case of Ifezue v. Mbadugha which dealt with the correct interpretation of section 258(1) of the 1979 Constitution, learned counsel conceded that:

“All the members of the Court, including the learned dissenting justice (Mr. Justice Bello) had no doubt whatsoever about the meaning of the section. It is indeed undisputable that the intention of the section is that every court is required to deliver its decision in writing not later than three months after the conclusion of evidence and final addresses.”

Learned counsel contended that “those of their Lordships in Ifezue’s case who insisted that they were following the “plain literal meaning” of the section missed the fact that they have in their conclusion either added words to the section or completely rewritten it. They have “construed” the section not in its “plain literal meaning” but as if it reads:

“Every court . . . shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses and any judgment delivered after the expiration of the 3 months shall be void.”

or:

“No court shall have jurisdiction to deliver its decision in any case tried by it unless such decision is delivered in writing not later than 3 months after the conclusion of evidence and final address.”

With the greatest respect to the learned Senior Advocate, he has failed to advert his mind fully to the questions before the court in Ifezue’s case.

The first question in that case raised the issue of the correct interpretation of the section-Section 258 (1). The second question raised the issue of the validity of any judgment delivered after the 3 months limitation.

There is no doubt and I agree with learned counsel that the answers of the majority of the learned Justices to the two questions could be read in either of the two renderings of the section set out above by counsel.

The issue of the liability of a judge or a court who delivers his judgment or its judgment outside the three months limit was not the question for determination by the court. Whether or not it amounts to a breach of a judge’s judicial oath is a question that may arise in another matter before the court or a non-judicial body and in particular the Advisory Judicial Committee and the Supreme Military Council meeting in exercise of their disciplinary powers.

It is impossible to divorce the extent of the jurisdiction of the court from the consideration of the delivery of the judgment outside the period laid down by the constitution. The Court of Appeal hears an appeal and delivers judgment in it in exercise of the jurisdiction conferred on it by the 1979 Constitution, section 219 of which reads:

“Subject to the provisions of this Constitution, the Federal Court of Appeal shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”

and by virtue of section 258(1) that jurisdiction to hear and determine terminates with the delivery of judgment in the appeal as provided by section 258(1) of the 1979 Constitution. Section 258(1) of the 1979 Constitution reads:

“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusions of evidence and final addresses . . .”

It seems clear that the Constitution itself sets a limit of time for the exercise of the jurisdiction to “hear and determine” appeals and any determination outside the 3 months period from the date of the conclusion of evidence and final addresses (which constitutes the hearing) is a determination without jurisdiction. I do not see how one can overlook the phrase “subject to the provisions of this Constitution.” This constitutional restraint reinforces the construction of section 258(1) by this Court that the provision is mandatory and not directory. That, in my view, settles or lays the point that any judgment delivered after 3 months from the conclusion of evidence and final addresses is a nullity at rest. It is the Constitution that gave the jurisdiction. It is the Constitution that terminated it. Without jurisdiction, a court cannot exercise its judicial powers and any such exercise is an exercise in vacuo and null and void.

Learned counsel for the respondent submitted that since the section did not lay down the consequences of a contravention of the section or non-compliance with the provision of the section, the vital question is:

“Whether that contravention means that the judgment delivered is a nullity.”

If the court delivers its judgment outside the 3 months limit prescribed by section 258(1) of the 1979 Constitution, then under what law does the court act in delivering its judgment outside the 3 months limit If there is a State’s law which permits it that law is in conflict with the provision of the Constitution as amended and to that extent, it is void.

If there is no law authorising the act, the court has acted without jurisdiction and any act done without jurisdiction or in excess of its jurisdiction is void. The Constitution as amended by Decree No.1 is supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Learned counsel, after quoting the answer the lead judgment of the Supreme Court (delivered by Aniagolu, J.S.C.) gave to the vital question in Ifezue’s case, which is that failure to deliver judgment within the 3 months limit of time “Invalidated the so called judgment delivered after the period”, contended that “what is in doubt is whether the Supreme Court gave any (or adequate) consideration to the reasons (if any) which led it to the answer which it gave in the passage underlined.” He then went on to submit that “in fact hardly any consideration was given to the point.” .

Discussing Ifezue’s case and the vital question, learned counsel for the respondent in his brief said:

In Ifezue’s case, the arguments presented to the court adopted the categorisation of the classes of statutory provisions under consideration into “mandatory” (where one of the legal consequences of contravention is nullification) and ‘directory’ (where nullification is not’ one of such consequences). Aniagolu, J.S.C. made careful and copious references to the arguments submitted to the Court on the tests for ascertaining whether a law falls within “mandatory” class or the “directory” class. His Lordship also referred to the arguments advanced in support of the case for treating section 258(1) as falling within the “directory” class. But his judgment contained no reason for his conclusion on this aspect of the argument. His Lordship concentrated on the meaning of section 258(1). In so far as his Lordship’s decision on the meaning of section 258(1) is concerned, no one can have any quarrel whatsoever. The only criticism here made (very respectfully), is the complete absence of the reasons why the court came to the conclusion that nullification is one of the consequences of contravening section 258(1) of the Constitution.

Learned counsel then proceeded to x-ray all the judgments read by the 7 Justices one by one and examined critically the reasons (if any) relied upon for the conclusion that nullification of the judgment actually delivered is a consequence of contravening section 258(1) of the Constitution.

Dealing with lead judgment by Aniagolu, J.S.C. learned counsel felt unable to agree with the reasons for classifying the provisions of the section as mandatory. He submitted that “mandatory” or “directory” designation of a particular enactment does not depend upon whether it is couched in “imperative” or “permissive” terms.

As regards the judgment delivered by Irikefe, J.S.C. which applied the mischief rule in trying to ascertain the intention of the Constitution, he submitted that his Lordship appeared to assume that a policy of automatically setting aside every judgment (however manifestly unimpeachable) given after the expiration of the 3 months period will suppress the mischief. He contended that such course will lead to justice delayed and justice denied.

Dealing with the judgment of Obaseki, J.S.C. , learned counsel, in his brief, observed and submitted:

“The learned justice pointed out that before the enactment of section 258(1) of the Constitution ‘the Supreme Court had always frowned openly at inordinate delays in trial of cases and in delivery of judgments after the close of evidence and addresses’. The appellant respectfully submits that the Constitution makers must be presumed to be aware of the law fortified as it is by the provisions for fundamental rights to a fair hearing within a reasonable time . . . Obaseki, J.S.C. appeared to consider that the object of section 258(1) of the Constitution is to provide a ‘rule of the thumb’ for deciding whether or not there has been a miscarriage of justice. His Lordship said

‘The presumption that necessarily arises from the failure to perform the public duty of adjudication within the time prescribed is that of miscarriage of justice. Justice delayed is justice denied is the favourite song today. Any act or conduct of a judge which denies justice to the parties within the time stipulated by the Constitution amounts to miscarriage of justice in the determination of the case. This miscarriage cannot but be fatal to the decision and renders it null and void.’

With great respect, this reasoning appears to elevate the period of 3 months to the level of a formula or magic for detecting miscarriage of justice. It is respectfully submitted that just as the failure to furnish authenticated copies of decision to alieties to the cause on the date of delivery does not affect the genuineness of the authenticated copies so, failure to deliver a judgment within 3 months can in no way affect the quality of that judgment in those cases where the decision does not rest entirely or mainly on reliance by the trial court on the value placed on the witnesses who testified before it.”

If I could be persuaded that the mental processes of considering judgment before writing it and delivering it in an appeal were as mechanical as making authenticated copies of the judgment delivered, I would readily accept the fallacy of my reasoning. So far, counsel has not succeeded in this regard.

In regard to the judgment of Eso, J.S.C., learned counsel observed:

“The judgment of Eso, J.S.C. dealt mainly with the effect of construing section 258(1) in such a way that its contravention is regarded as invalidating the judgment actually delivered . . . In short, it was Mr. Justice Bello’s point that it was more rational to construe the provision as directory rather than as mandatory. Eso, J.S.C., however countered this solution where he said:

It is however very important to my decision that in the subsection, the word “shall” is used only once, and that is in the first limb. In reading the second limb that is furnishing all parties to the cause or matter determined with duly authenticated copies of the decision, the word shall is definitely absent and to read the word “shall” therein is to import into the subsection that which the legislator has not intended.

With all due respect to his Lordship, it is submitted that if the word “shall” is to be excluded from the second limb as suggested, then the sentence becomes a piece of hopelessly bad composition and grammar. So the only alternative to Mr. Justice Bello’s treatment of the word “shall” is Mr. Justice Obaseki’s namely, that it is mandatory in the first limb, and directory in the second. The appellant relies on Mr. Justice Bello’s interpretation.”

Dealing with the judgment of Nnamani, J.S.C., learned counsel observed:

The learned Justice emphasised the imperative terms of the provisions of the section under consideration. It has already been submitted that the terms of the enactment are not necessarily determinative of the question whether a breach of the enactment nullifies the action of the person to whom the provisions are directed.

Finally, dealing with the judgment of Uwais, J .S.C., learned counsel observed:

His Lordship attributed the decision to nullify the judgment to the need to stop judges from delaying the delivery of judgments unnecessarily as had been the case prior to the enactment of the Constitution . . . The nullification of his judgment on appeal is something which any judge must learn to live with. It cannot be right to regard it as a method of “punishment” or “sanction” for a judge whose judgment is nullified.

Learned counsel prayed the court to review its decision in Ifezue’s case and approve the conclusion of Mr. Justice Bello in his minority judgment and invited the court to overrule the Court of Appeal decision in Adold/Stamm, etc. v. LSDPC. CA/L/117/84 delivered by the Court of Appeal on 5-10-84.

Chief F.R.A. Williams, SAN. cited in further support of his submissions that section 258(1) of the 1979 Constitution is directory and not mandatory, the following six cases.

(1) Liberty Mutual Insurance Company Petitioner v. Industrial Accident Commission and Walter F. Walden Services of Mead Data Central page 2 Dec. 28, 1964. Before Van Dyke, J. retired Presiding Justice of the District Court of Appeal, sitting under assignment by the Chairman of the Judicial Council. This was a proceeding to review an order of the Industrial Accident Commission awarding compensation for a new and further liability.

(2) Martin Dale Edwards v. R. Spencer Steele Supreme Court of California October 4, 1979 Services of Made Data Central-P.1.

(3) Illinois ex Rel Oscar N. Larson v. Thomoson. 140 ALR 948 at 952, Illinois Supreme Court-June 17, 1941 which stated that time in statute is directory unless time was intended as a limitation on the power of the officer to act.

(4) Younker Brothers v. Harry Zirbel. 151 ALR 242 at 246 Iowa Supreme Court which interpreted Tax statute as directory and not mandatory as to time.

(5) The Queen v. Justices of the County of London and the London County Council. (1893) 2 QB 476 at p. 488 per Lord Esher, MR and at pp. 491 to 493 per Bowen, LJ. The language of the statute is permissive.

(6) Anderson v. Mooney. (1907) Victorian Law Report 623 at 631.

These cases, learned counsel contended, illustrate that the provision as to time prescribed in a statute for the hearing and determination of matters have been held to be directory and not mandatory.

None of the above cases dealt with a constitutional provision as to time in which the public officers are to perform a public duty.

In reply, Chief Gani Fawehinmi submitted that no basis exists for a departure from the decision in Ifezue’s case. He observed that all that learned counsel has succeeded in doing was a presentation of the same type of arguments placed before the Court in Ifezue’s case which were rejected by the court.

Chief Gani Fawehinmi further submitted that Nigeria has peculiar provisions in sections 213, 214 and 251 which are absent from the constitutional provisions of India. He then referred to Art 137 of the Indian Constitution which enables the Supreme Court to review its previous decisions. He also referred to Article 34 of the Irish Constitution and the case of The State v. Ryan (1965) 1 IR 70 where the Irish Supreme Court departed from a decision delivered 18 years earlier for compelling reasons. He also referred to:

Attorney-General v. Ryan’s Car Hire Limited (1965) IR 642. Particularly the judgment of Mr. Justice Kingsley Moore and Morgul of Ireland v. Tiperary County Council (1976) IR, 260.

Learned counsel then emphasised that to be overruled, the decision must be clearly erroneous.

He finally agreed with Chief William’s contention that this Court, the Supreme Court, by virtue of its pre-eminent position and being at the apex of courts in the hierarchy of the judiciary in this country has power to change its decision if found to be erroneous just as the other arms of government, i.e. the executive has power to alter and reverse its decision and the Legislature has power to amend and repeal laws passed by it as and when the necessity arises. Learned counsel then submitted that a full court, i.e. of 7 Justices, can depart from and overrule the decision of a full court given on a question as to the interpretation and application of the provisions of the 1979 Constitution as amended.

Learned counsel emphasised the differences between the provisions of section 33(1) and section 258(1) of the 1979 Constitution. He submitted and I agree with him that fair hearing in some cases may demand a hearing and determination of a matter in less than 3 months.

Chief Gani Fawehinmi pointed out that Chief F.R.A. Williams, SAN., the learned counsel for the respondent did not advance compelling reasons to show that the decision in Ifezue’s case is erroneous:

(1) He has not given new matters or new developments in the law which renders the decision in Ifezue no longer good law.

(2) He has not shown that the decision was given per incuriam.

He observed that the vital question now being raised was adverted to by Aniagolu, J.S.C. in the lead Judgment. He then cited:

In re Application of Woods (1970) Irish Reports 154 Brown v. Board of Education 347 US 483 to emphasise the point that compelling reasons must be given. He submitted that the six cases examined by the respondent’s counsel which dealt with statutory provisions prescribing for the hearing and determination are of no assistance to the court. None he observed dealt with the Interpretation of any provision of the Constitution as to time.

Turning to the first question, there is unanimity and I hold very strong views on it that the Supreme Court, as a court of apex of the judicial hierarchy in this country, has the jurisdiction and power, sitting as full court of seven justices, to depart from and overrule previous erroneous decisions on points of law given by a full court on constitutional questions or otherwise.

The Court by law has the exclusive jurisdiction to hear appeals from the Court of Appeal (see section 213(1) of the 1979 Constitution). It is the highest and final court of appeal in Nigeria and no appeal lies to any other body, authority or persons in Nigeria (section 215 of the 1979 Constitution). Its decisions bind every authority or person in Nigeria and are by law to be enforced by all authorities, persons and courts in a subordinate capacity throughout Nigeria (section 251 of the 1979 Constitution). The Supreme Court is therefore by the expressed provisions of the Constitution in a very pre-eminent position.

As a court of law with strong historical association with the British Crown and Parliament and having succeeded the Judicial Committee as the highest and final court of appeal in Nigeria, it cherishes its heritage of common law doctrines and in particular the doctrine of state decisis as a Sine qua non to certainty to the practice and application of law in Nigeria.

Laws are made for men and not men for laws. The administration of justice involves the administration of the purest principles of law among men for the good of men in its fairest conception. Man is fallible, so are the thoughts of man. This fallible nature of man demands that whenever the errors of thoughts and thought processes surface and are exposed and brought to the attention of its authors, there should be power or jurisdiction to depart from the errors and tread the correct path.

The sovereign powers of the State which are shared among the three arms of Government-the Executive, the Legislature and the Judiciary-by the Nigerian Constitution 1979 as amended enable such corrective processes in the interest of justice and the good of all persons in and all citizens of Nigeria. Thus, the Judicial Committee of the Privy Council has, in its advisory capacity to the Sovereign of the British Empire since the 19th century, given repeated expression of the fact that it will not be bound by the erroneous previous decisions of the court and that for good and compelling reasons it will depart from such decisions and overrule them in the interest of justice and the law. These previous decisions must be clearly shown to be (1) vehicles of injustice or (2) given per incuriam or (3) clearly erroneous in law.

These previous decisions are not set aside as by then the litigation in matters to which they pertain had been brought to an end and closed. When the need to depart from them is established clearly before the court, they are however no longer followed. They are departed from and overruled. This is because it is fallacious to talk of certainty of the law in erroneous decisions. The interest of justice is served not by certainty of the law in fallacious decisions but by certainty of the law in decisions which properly apply the law and give a correct exposition of the law.

Lord Halsbury, L.C. dealing with this point in the case of Read v. Bishop of Lincoln (1892) A.C. 644 at 654 said:

With respect to some of the matters which have been the subject of debate in this appeal, it has been strongly urged that they have been conclusively determined by this board, and that if the facts are found to be the same, no further argument is permissible. That question was raised in the case of Risdale v. Clifton 2 P.D. 276. Some of the points in that case had been the subject of decision by this committee in the case of Hebbert v. Purchas Law Rep. 3 PC 605. In answer to the argument that they had been conclusively settled and were no longer open to discussion, Lord Cairns, delivering the judgment of the Committee, said at 2 P.D. 305.

“Their Lordships have had to consider, in the first place, how far, in the case such as the present, a previous decision of this tribunal between other parties, and an order of the sovereign council founded thereon should be held to be conclusive in all similar cases subsequently coming before them . . . In the case of decisions of final courts of appeal on questions of law affecting civil rights, especially rights of property, there are strong reasons for holding the decisions, as a general rule, to be final as to third parties. . .

Even as to such decisions, it would perhaps be difficult to say that they were, as to third parties, under all circumstances and in all cases absolutely final, but they certainly ought not to be re-opened without the greatest hesitation. Their Lordships are fully sensible of the importance of establishing and maintaining as far as possible, a clear and unvarying interpretation of rules, the stringency and effect of which ought to be easily ascertained and understood by every clerk before his admission to the holy orders. On the other hand, there are not, in cases of this description, any rights to the possession of property which can be supposed to have arisen by the course of previous decisions; and in proceedings which may come to a penal form a tribunal even of last resort, ought to be slow to exclude any fresh light which may be brought to bear on the subject . . . In the present case, their Lordships cannot but adopt the view expressed in Ridsdale v. Clifton 2 P.D. 276 as to the effect of previous decisions. Whilst fully sensible of the weight to be attached to such decisions, their Lordships are at the same time bound to examine the reasons upon which the decisions rest, and to give effect to their own view of the law.”

Again in 1946, the Judicial Committee of the Privy Council found occasion to re-emphasise the fact that it was not absolutely bound by previous decisions of the board when it said per Viscount Simon delivering the judgment of their Lordships in Attorney-General for Ontario v. Canada Temperance Federation (1946) A.C. 193 at 206.

The appellant’s first contention is that Russels’ case 7 App. Case 829 was wrongly decided and ought to be overruled. Their Lordships do not doubt that in tendering humble advice to His Majesty they are not absolutely bound by previous decisions of the board, as is the House of Lords by its own judgment. In ecclesiastical appeals, for instance, on more than one occasion the Board has tendered advice contrary to that given in a previous case which further historical research has shown to be wrong. But on constitutional questions, it must be seldom indeed that the Board would depart from a previous decision which it may be assumed will have been acted on both by Governments and subjects. In the present case, the decision now sought to be overruled has stood for over 60 years; the Act has been put into operation for varying periods in many places in the Dominion; under its provisions business must have closed; fines and imprisonment for breaches of the Act have been imposed and suffered. Time and again, the occasion has arisen when the Board could have overruled the decision had it thought it wrong. Accordingly, in the opinion of their Lordships the decision must be regarded as firmly embedded and it is impossible now to depart from it.

However, a decision given on a given state of facts is not re-opened without the greatest hesitation. This was pointed out clearly by the Privy Council in Gideon Nkambule v. The King (1950) A.C. 379 at 397 when Lord Porter delivering their Lordships’ reasons for dismissing the appeal, said:

“It is true that the Board does not act, as the House of Lords acts, on the strict rule that they are bound by a previous decision based on the same considerations. Nevertheless, as was said in Read v. Bishop of Lincoln (1892) AC 644 a decision on a given state of facts ought not to be re-opened without the greatest hesitation though the right to re-open is not confined to cases where some fresh fact was adduced which had not been under consideration on the previous occasion. Still the right to re-open remains and from these observations it is apparent that the existence of some fresh material not communicated or at any rate not fully presented to the tribunal which heard and decided the earlier case is an element to be borne in mind when deciding whether that case should be followed or not. ”

From a perusal of the judgment in Tumahole’s case (1949) AC. 253 it is apparent that the history of the adoption and promulgation of the various status and proclamations dealing with the effect of the evidence of accomplices in South Africa was only partially put before the Board and much material which has now been ascertained was not presented to their Lordships on that occasion.

The present case, therefore, is one in which fresh facts have been adduced which were not under consideration when Tumahole’s case (1949) A.C. 253 was decided, and accordingly, it is one in which, in their Lordships’ view, they are justified in re-considering the foundations on which that case was determined.

It is therefore clear that new facts must emerge which were not available for consideration by the tribunal that heard the previous case before a review is undertaken with a view to overruling a previous decision of the Board.

The Supreme Court in the US., India and Ireland adopt the same posture as the Judicial Committee of the Privy Council. In their own special circumstances, they derive much greater strength and authority from their written constitutions and have used them to advantage. It is therefore unnecessary to reflect all but a few of the obiter dicta of judges in the courts of the different countries on this matter cited by counsel. Suffice it to say that the courts do not depart lightly from previous decisions and in order to be persuaded to do so, compelling reasons must be laid bare before them.

This Court has adopted the same stance in the various cases cited by the appellants’ counsel in which this Court, the Supreme Court, has departed from and overruled the previous decisions of this Court, WACA (West African Court of Appeal) or the Judicial Committee of the Privy Council.

I agree that in none have constitutional questions been raised but the re-examination was embarked upon with the greatest hesitation.

Taking the most recent of the cases which is Bucknor Maclean v. Inlaks Limited (1980) 8-11 S.C. 1, the decisions overruled were clearly shown to become vehicles of injustice and this Court could not allow such state of affairs to continue and my late learned brother, Idigbe, J.S.C. fully gave expression to this when reading the lead judgment at page 25, he said.

“I share the view of Lord Morris in Conway v. Rimmer that “though precedent is an indispensable foundation on which to decide what is the law, there may be times when a departure from precedent is in the interest of justice and the proper development of the law.” . . . I see no more justification for perpetuating recent error than for retaining any uncorrected error in much older decisions of this court. ”

In Golak Nath v. State of Punjab Air (1967) S.C. 1643, Subba R. CJ. (on behalf of himself, Shah, Sikri, Shelat and Vaidialingam, JJ. said at page 1670:

“A final appeal is made to us that we shall not take a different view as the decision in Sankari Prasads case (1952) SCR 89-AIR 1951 S.C. 458 held the field for many years. While ordinarily this court will be reluctant to reverse its previous decisions, it is its duty in the constitutional field to correct itself as early for otherwise the future progress of the country and the happiness of the people will be at stake. As we are convinced that the decision in Sankari Prasad’s case 1952 SCR 89-(AIR 1951 S.C. 458) is wrong it is pre-eminently a typical case where the court should overrule it………………………

……………………………..

This argument is answered by the remarks made by this Court in Superintendent and Legal Remembrancer State of West Bengal v. Corporation of Calcutta Criminal Appeal No. 193 of 1964 D/7-12-1967 S.C. 997).

The third contention need not detain us for it has been rejected by this Court in Bengal Immunity Company Limited v. State of Bihar 1955-2 SCR 603-(AIR 1955 SC. 661). There a Bench of 7 Judges unanimously held that there was nothing in the constitution that prevented the Supreme Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interest of the public. If the aforesaid rule of construction accepted by this court is inconsistent with the legal philosophy of our constitution, it is our duty to correct ourselves and lay down the right rule. In constitutional matters which affect the evolution of our policy we must more readily do so than in other branches of law as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conductive to the smooth evolution of the rule of law, hesitancy to set right deviation will retard its growth. In this case as we are satisfied that the said rule of construction is inconsistent with our republican policy and if accepted bristles with anomalies, we have no hesitation to reconsider our earlier decision.

Turning to Ireland (Eire), the Supreme Court of Eire (O Daleigh, CJ. Kingsmill Moore, and Welsh, JJ.) in the case of Attorney-General and Another v. Ryan’s Car Hire Ltd. (1965) I.R. 642 held that the Supreme Court is not rigidly bound by the rule of stare decisis and is at liberty to refuse to follow previous decisions of the court if it is satisfied that they were clearly wrong. At p. 652 Kingsmill Moore, J. reading the judgment of the court said:

“The first question, then is whether this court is to accept and lay down the principle that it is bound irrevocably by an earlier decision, the so called rule of “stare decisis” . . . The merits and demerits of this rule has been widely canvassed and there is no consensus of opinion among academic jurists or serving judges. It seems clear that there can be no legal obligation on this court to accept “stare decisis” as a rule binding upon it just because the House of Lords accepted it as a rule binding on their Lordships’ house. The law we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal indeed almost universal procedure. To do so would be to introduce into our law an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own or of the courts of ultimate jurisdiction which preceded it, where it appears to be clearly wrong, is it to be bound to perpetuate the error”

The answer to the first question for determination therefore, in my view, is that there is nothing in the 1979 Constitution as amended by Decree No.1 depriving the Supreme Court of any jurisdiction to depart from and overrule its previous decisions on constitutional questions. Therefore, the Supreme Court as the Court of ultimate jurisdiction or final Court of Appeal and citadel of justice in Nigeria is at liberty to depart from and overrule its previous decisions on constitutional questions for compelling reasons which proved them erroneous. It will not do so readily or without much hesitation or in the absence of proof that the previous decisions were clearly erroneous and against the public good and welfare.

Turning to the second question, I find myself unable to hold and say that learned counsel for the respondents has succeeded in showing that the decision of this Court in Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Anor. (1984) 5 S.C. 79 was clearly erroneous, or given per incuriam shown to be occasioning miscarriage of justice and perpetuating injustice. The arguments of learned counsel for the respondents in this appeal have not differed from the submissions learned counsel made before us in Ifezue’s case although he has however brought forward and cited more authorities in support of his contention. These authorities deal with the construction of ordinary statutory provisions as to time of hearing and or in which actions on matters are required to be taken. They did not deal with constitutional provisions.

I propose to examine five of them, Photostat copies of which learned counsel for the respondents kindly made available to the Court.

In Liberty Mutual Insurance Company v. Industrial Accident Commission (supra) Van Dyke, J. of the District Court of Appeal dealt with the proper construction of section 5313 of the Labour Code which provides in part:

“The Commission or panel, every referee or Commissioner shall within 30 days after the case has been submitted make and file findings…and an award, order, or decision stating the determination as to the rights of the parties.”

The Court held that it did not lose jurisdiction saying:

“We think the legislature concerned with complaints of delay in disposition of Industrial Accident Commission cases, intended only to place the Commission in a position that it could be mandated to act if it took more time than the short period allotted. But that the legislature intended to destroy rights is incredible.”

I cannot find any assistance from this authority in support of respondent’s contention. The 2nd case is Martin Dale Edwards v. R. Spencer Steel (supra). The jurisdictional issue involved the meaning and effect of a provision of the San Francisco Municipal Code (pt. 111, at 18) which-prior to amendment in 1979 in the pertinent part provided that “on the filing of any appeal, the Board or Permit Appeals shall fix the time and place of hearing, and shall be not less than five and not more than fifteen days after the filing of the said appeal and shall act thereon not later than 40 days after such filing.” It may be observed that the Supreme Court of California held that time could be extended under the authority of law when it said:

“The period during which the Board could not act should be excluded from the 40 days limitation period. Under the due process mandate we may decisionally declare such an exclusion and this bring (sic) into play the rule herein above alluded to that where a statute is peremptory in fixing the time within which the act is to be done the prescribed time may be extended by an order made for that purpose under authority of law.”

This authority cannot be of any assistance in the interpretation of the first limb of section 258(1) of the 1979 Constitution as directory.

The case of the People ex. Rel Larson v. Thompson (supra) 140 ALR. 946 cannot be said to be of much assistance to the respondents’ view either. It restated the well known common law rule when the Court said:

“This court there applied the well known common law rule that where a statute specifies the time within which a public officer is to perform an official act affecting the rights and duties of others, it will be considered as directory, merely, unless the nature of the act to be performed or the language used by the legislature shows that the designation of the time was intended as a limit on the power of the officer to act.”

This is in support of the decision of Ifezue’s case in that the designation as to time was intended as a limitation on the power of the court to act beyond the three months limitation.

In any case, the court quite rightly held that a “statutory requirement that any ordinance of a forest preserve district, making any appropriation of money shall, within ten days after its passage, be published at least once in some newspapers published in the district, is directory only and consequently an appropriation ordinance not published within ten days after its passage is not void, but may be given effect by subsequent publication.”

It is to be observed that a further reading of the judgment shows that there was a Curative Act passed by the legislature in 1940 as curing the objection to the levy ordinance. By the Curative Act, it was provided that:

“When the board of forest preserve commission of any district had therefore, during the fiscal year 1939 adopted an annual appropriation ordinance, then such appropriation ordinance and tax levy ordinance, and the taxes levied and extended thereon were validated notwithstanding that the publication of the appropriation ordinance occurred more than ten days after its passage and notwithstanding that the tax levy ordinance was passed within 10 days from the date of the publication of the appropriation ordinance.” (See page 955 of 140 ALR.)

There are however features of this case which are definitely against the contention of the respondents. At p. 953 the court observed:

“The objection, however, to the legality of the levy ordinance passed within 10 days from the date of the publication of the appropriate ordinance presents a more serious question. Section 11 of the act expressly provides that no ordinance making any appropriation of money shall take effect until 10 days after it is published. If the above language of said section 13, providing that taxes shall be levied in the same manner as taxes are levied for city and village purposes, means that the appropriation ordinance must actually be in force before the levy ordinance is passed, the levy ordinance in this case cannot be sustained because it was passed within 10 days from the date of the publication of the appropriation ordinance . . .”

and at page 955 the court held:

“The levy ordinance was therefore void because the board of commission was without power to pass it at the time the ordinance was adopted.

The appellant relies upon a curative act passed by the legislature in 1940 as curing the objection to the levy ordinance. . . It is conceded by the appellants that this case falls squarely within the language of said curative Act. They admit that if this Act is valid the defects in the levy ordinance on which this objection is based, were cured and the levy ordinance should be treated as valid. They assert, however, that the curative act is ineffective to cure the defects.

An examination of the numerous authorities or decisions of this court upon the subject of so-called curative or enabling acts discloses that the rule is definitely settled in this state that the legislature may, by statute, validate the illegal or defective exercise of a power where the power exists at the time its exercise was attempted. However, the General Assembly cannot give validity to the exercise of a power where such assumed power did not exist at that time it was purported to have been exercised. The power to levy a tax by an administrative tribunal is jurisdictional. Jurisdiction to act cannot be conferred by subsequent legislation where the power to act was lacking at the time the purported action was taken People v. Chicago and Eastern Illinois Railway Co. 365 III 202, 6 NE (2nd) 119.

In People v. Hamilton 373 III 124 25 NE (2d) 517 this court held that the fundamental requirements for raising money by taxation are legal authority of the taxing body to levy tax, and the making of such levy by the proper body within the proper time. In that case, the statute required that the collector’s books should be delivered for the collection of taxes on or before the first day of December annually. It was held that the requirement that the collectors books be delivered on or before December 1 was not mandatory. It was further held, however, that a levy of taxes made after December 1 was void and could not be validated by subsequent legislation.”

I think this authority has more in support of Ifezue’s case than against it.

Younker Brothers Inc. v. Harry Zirbel (1943) 151 A.L.R. 242, dealt with Chapter 202 of the Laws of the 49th General Assembly. Blise, J. (delivering the opinion of the court, Iowa Supreme Court) at 245 said:

“It may be noted and it is significant that in the provisions specifying the various times or periods at or in which the duties of the Board are to be performed there are no commands that they shall not be performed at any other times. Section 16 provides that the Board shall be in session in the discharge of its duties during the month of May.”

The case also restated that common law rule for “construction” of statutory provisions prescribing times in which official duties are to be performed. At p. 246 the learned judge said:

“Quoting from Sutherland on statutory construction section 446the court in Hubbell v. Polk County (supra) 106 Iowa 618,621, 76NW, 854, 856, said though a statute directs a thing to be done at a particular time it does not necessarily follow that it may not be done afterwards. In other words, as the cases universally hold, a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed or the phraseology of the statute is such that the designation of time must be considered as a limitation of the power of the officer.” In Eason v. Savery (supra) 44 Iowa 654,656, the court said:

‘While the statute provides the levy shall be made at the September meeting it is entirely silent as to whether it may be done at any other time or not. There are no negative, or words prohibiting the levy being made before or after the day fixed by the statute, nor is there any penalty attached for a failure to make the levy on the required day or rendering it void if made at any other time’ .”

There is more in favour of Ifezue’s case in this authority than against it.

It is to be observed that section 258 (1) of the Constitution used the negative words prohibiting the decision of the Court being made after 3 months after the conclusion of the evidence and final addresses. The Queen v The Justices of the County of London and The London County Council (1893) 2 QB.476 cited again in this appeal was brought to the notice of the learned Justices of the Supreme Court in the Ifezue’s case but did not persuade the majority of the Justices to the view that the first limb of section 258(1) of the 1979 Constitution was directory.

I must not fail to commend Chief F.R.A. Williams, SAN, and learned counsel for the respondents for the assistance to the court in the additional authorities he cited and made available in photocopies to the court.

As stated earlier they have not differed in persuasive content from the cases he cited before the court at the hearing of Ifezue’s case. I have personally found in them much support for the view I held and still hold in Ifezue’s case. They have, in my view, loudly illustrated and proclaimed the dedication of learned counsel and Senior Advocate to the course of justice. I also observe that Chief Gani Fawehinmi, learned counsel for the appellants, has shown no less dedication at the hearing of this appeal. He was at one with Chief F.R.A. Williams, on the issue of the power of the court to re-examine and, if necessary overrule the decision of a full court.

Having said that, I must say that the submissions of and the authorities cited and provided by learned counsel for the respondents have not provided any ground for departing from the decision in Ifezue’s case. There is substantial merit in the submission of learned counsel for the appellants that the decision of the Court of Appeal having been delivered outside the three months time limit prescribed by section 258(1) after the conclusion of evidence and final addresses is null and void.

At the time the court called upon parties to clarify some points in the appeal, the three months limit for judgment had long expired. The three justices of the Court of Appeal who heard the appeal had thereby lost jurisdiction in the matter and the purported re-opening to hear short submissions before judgment is delivered outside the time limit was of no effect to validate the judgment even though the period of time from hearing the short submissions to clarify some points to the date the judgment was delivered was less than three months. Final addresses are addresses by parties or their counsel made to the court on the matter in exercise of their rights conferred by the Rules of Court before the court adjourns for judgment. An invitation by the court to address it on points raised by the court during the deliberation or consideration of the judgment does not, in my view, come within the contemplation of evidence and final addresses in section 258(1) of the 1979 Constitution.

I agree with counsel for the appellant that the facts of the instant appeal are on all fours with the facts in Ifezue’s case. This appeal succeeds and is allowed. The decision of the Court of Appeal in this matter delivered on the 10th day of March, 1983 was delivered in contravention of section 258(1) of the 1979 Constitution.

The said decision together with the order as to costs is hereby set aside and the appeal remitted to the Court of Appeal for hearing de novo by a different panel.

The appellants are entitled to costs in this appeal which I assess at N300.00 to be paid by the respondents.

SOWEMIMO, C.J.N.: The argument in this appeal is on the construction to be placed on section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 (as amended), which reads:

“258. (1) Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

There is no doubt, that if a Court of Appeal fails to deliver its judgment within three months, such failure contravenes this provision. Therefore, any judgment becomes null and void if delivered outside the time limit. The question is, who should be blamed since the appellants or the respondents as the case may be, are not responsible for the lateness of the Court of Appeal in delivering its judgment. Where, therefore, should the blame lie, in what appears to be the wrong doing of a panel of judges There is no provision in the law as to who will bear the responsibility for the cost of re-hearing. It therefore appears, that parties to a suit are being punished for the wrong doing which they are not responsible for. It is in this sense that counsel argued forcibly that the construction of the relevant section should not be mandatory but directory.

If one accepts the argument that the provision of section 258(1) of the 1979 Constitution is directory, then the question is as to what happens to the judgment delivered in breach of it. Definitely, the judgment violates the provision of the Constitution, because it was delivered out of time. The judgment, therefore, is null and void. The next question is as to what happens to the parties and the judges Except that the judgment becomes null and void, the judges do not suffer any liability. It is quite clear that there is no provision for damnifying judges for such a breach.

This section of the Constitution has been specially promulgated to prevent rather undue delayed judgment, which, being capable of being set aside, does not benefit either party to the case or on appeal. When any judgment is unnecessarily delayed, it is not possible for the court of trial to retain observations of the witnesses, and the freshness of the demeanour of a witness is lost. It is, therefore, to save such undue delay that this particular provision has been made. Often in the past, a judgment is set aside and the case is remitted for retrial or re-hearing, because the delay is so long that a trial judge would have lost advantage of observation of a witness and sometimes forgets the sequence. It is the duty of all judges to apply the laws strictly, but it will not be right of them to attempt to wriggle out of such application and defeat its object. It is, therefore, essential that all courts should see to the proper compliance with section 258 (1) of the Constitution of Nigeria 1979.

Learned counsel for the appellant emphasised that directory construction should be preferred, because of the helplessness of parties. In a judgment given in violation of section 258(1), one party gains and the other loses. It is only fair that parties be restored to their original status when ordering re-hearing. The purpose of section 258(1) is to give some certainty as to the law determining rights of parties. It is, therefore, of the utmost importance to either the appellant or the respondent that a court, which determines an appeal, does so within the required period. That will lead to the enhancement of the court and the judiciary.

In a trial court, the judge, in determining findings of facts, depends on his observations of witnesses. This is not the case in an appeal court. Here it is an application of the law on the facts as found by a trial court. A final court or a court of appeal, or a court of first instance, therefore, must deliver its judgment within three months, as provided by our Constitution. It will not therefore defeat the purpose of section 258(1) of the Constitution, if judgments are delivered within three months. It is in this sense that compliance with the relevant section of the Constitution will enhance the administration of justice. Briefs are filed, in addition to oral argument, before a Court of Appeal, and the Supreme Court. The Court of Appeal and the Supreme Court are, therefore, concerned with the law on the findings of facts. That places the Court of Appeal or the Supreme Court in a much better position. But, all the same, certainty of the law is not all that easy as it sounds. Certainty, however, goes along with timeliness.

The parties come before either court, with rival or opposing propositions of law. The duty of a Court of Appeal or the Supreme Court is heavier therefore when determining certainty of law from that of the court of first instance. In any case, what is uppermost is timeliness and certainty. Whatever research is necessary, the Court of Appeal or the Supreme Court judgment should be delivered within the time limit. It is, therefore, advisable that the date of judgment should be fixed on the conclusion of argument. The Court will, therefore, not lose sight of the necessary time factor. The parties will also be satisfied that their rights will be determined on a date within a limited period. This will give more credibility and sanctity to a judgment.

The decision of an intermediate court of appeal, or the Supreme Court, is of great important to the rights of individuals concerned in the particular appeal. It may promote business in future, where legal obligations and liabilities are known in any negotiations. The parties know for certain, what results their negotiations will give rise to, and what rights they will acquire. It is with this certainty that the public at large avoid indefiniteness or uncertainty in the business world. The validity coupled with certainty is supported by the Constitution.

It has been urged, in an opinion expressed in a draft judgment of my learned brother, Bello, J.S.C., that the construction to be placed on section 258(1) of the Constitution, be directory, and not mandatory. What happens, if directory construction is placed on section 258(1). The validity of a decision delivered after the expiry of three months will not be retained. The harm which the section sought to prevent will be perpetuated and the section itself will become ineffective.

I have read all the cases cited by Chief F.R.A. Williams, SAN, in his argument. They deal with the provisions limiting the periods for acts to be done. The law in those cases is meant for certain environments and circumstances. The application of the law in those cases is, therefore, understandable. The construction placed on laws of foreign countries are usually decided on their con, having regard to their local circumstances and environments. The Nigerian con and circumstances are quite different and, therefore, our construction in Nigeria must be different. Principles of foreign construction will always be helpful in the application of our law.

I wish to say that I have read, in draft, the judgment of my learned brother, Obaseki, J.S.C. I have also read the dissenting opinion in the judgment of my learned brother, Bello, J.S.C. I agree with the views expressed by my learned brother, Obaseki, J.S.C., but I am still searching in the dark to know the path which the opinion of my learned brother, Bello, J.S.C., will lead me to. I will agree with my learned brother, Obaseki, J.S.C., that the judgment be set aside as well as the order for costs made by the Court of Appeal, Benin.

The appeal will be remitted to the Court of Appeal, for rehearing de novo by another panel. I will also order that the appellants are entitled to costs in this Court, which are assessed as three hundred naira (N300), to be paid by the respondents.

A. G. IRIKEFE, J.S.C.:On 18th May, 1984, this court delivered judgment in the case of Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Another. The constitutional provision which arose for a consideration was section 258(1) of the Constitution of the Federal Republic of Nigeria as amended by Decree No.1 of 1984. The said section reads:

“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

(Emphasis mine)

This court, by a majority of 6 to 1, held that compliance with the exact tenor of the underlined portion of the provision set out above was mandatory and not directory, the resultant effect of which rendered null and void, any judgment delivered in breach of the provision. Such a decision did not destroy the corpus of the case, which remain intact, subject to a rehearing timorously in this court if the breach occurred here or in the remitting of the case to the Court of Appeal for are-hearing, as the case may be. Learned counsel for the appellants, Chief Williams, SAN, has now brought this case to this court on 12th November, 1984 all in a matter of less than six months and, in a very persuasive argument, is seeking that we should over-rule our earlier decision in the Ifezue case, on the ground ostensibly that it was wrongly decided or given per-incuriam.

As in the Ifezue case, it is common ground that the decision in this case was given outside the constitutionally prescribed period of 3 months. There is no doubt that this court has in the exercise of its jurisdiction since the advent of nationhood given force and effect to the common law jurisdiction which it inherited from the United Kingdom, the former colonial administrator of this country.

The legal rule of stare decisis-based as it is on the binding nature of judicial precedent is one of those rules enshrined in the decisions of the courts in this country. As recently as 1966-this was what the Lords of Appeal in Ordinary said in their Practice Statement (Judicial Precedent) (1966) 1 W.L.R. 1234:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what are the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law.”

Having set out the above guide-lines, Lord Reid-in Jones v. Secretary of State for Social Services (1972) 2. W.L.R. 210 at 215 stated thus:

“But that certainty will be impaired unless this practice is used sparingly. I would not seek to categorise cases in which it should or cases in which it should not be used. As time passes experience will supply some guide. But I would venture the opinion that the typical case for reconsidering an old decision is where some broad issue is involved, and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents . . .

Holding these views, I am firmly of opinion that DOWLING’S case ought not to be reconsidered. No broad issue of justice or public policy is involved nor is any question of legal principle.”

Again where there is a real likelihood of injustice being perpetuated this court has, in the recent past had occasion to over-rule itself. See Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 S.C. 1)-wherein this court over-ruled its previous decision in Shell B.P. v. Jammal Engineering (1974) 1 ALL N.L.R. 543 and Owumi v. P.Z. (1974) 1 ALL N.L.R. Part 2-on the above ground.

The cases listed above show that the rigour of the rule on stare decisis may sometimes be softened, but this can only be done on clearly settled principles of law.

In my view, the onus is clearly on the appellants to show that there have been new developments since IFEZUE which render our decision therein no longer good law or which would render the application of our ratio therein oppressive. All the cases cited in argument by counsel, over and above those cited in IFEZUE, do not deal directly with the point in issue in this case. We are here concerned with a fundamental constitutional provision which cries out loud and clear for compliance. It is a provision aimed at preventing a situation where a judgment which is reserved is eternally preserved and never delivered. Finally the appellants have failed also to show that Ifezue was delivered per

While I agree that no judgment of this court no matter the size of the panel should be sacrosanct if it is clearly shown later to have been based on an erroneous consideration either of fact or law, no cause has been shown for a reconsideration of Ifezue on the submissions now made.

I also would allow this appeal and adopt the orders made in the lead judgment of OBASEKI, J .S.C., and that of the Chief Justice of Nigeria.

KAYODE ESO, J.S.C.: I had the privilege of a preview of the judgment which has just been read by my learned brother Obaseki, J.S.C. I agree with his conclusions on both points that have been raised in this appeal.

The points are:

(1) Whether it is open to the Supreme Court to reconsider its decision in a subsequent proceeding especially when the decision sought to be reviewed has been given by a full Court.

(2) If the answer is in the affirmative, whether the decision of this Court in lfezue v. Mbadugha S.C. 68/82 which was delivered on 18th May, 1984 was correctly decided.

My learned brother has set out, with considerable detail, the submissions of learned counsel on the two points. Taking the first point first, that is whether this Court is competent to review itself, a short history of the predecessor of the Court, that is, the Privy Council and of the Court itself would show instances of such review by the Court.

Chief Williams in his brief has referred us to instances of such review. I will in particular refer to the dictum of Idigbe, J.S.C., in Bucknorand Anor. v. lnlaks (1980) 8-11 S.C.1 where the learned Justice of the Supreme Court declared:

“I share the view of Lord Morris in Conway v. Rimmer that though precedent is an indispensable foundation on which to decide what the law is, there may be times when a departure from precedent is in the interest of justice and the development of the law.”

It is true, precedent leads to certainty in the law, and when the law is uncertain there could be no equilibrium in the society. It was Lord Alfred Tennyson who propounded the theory of freedom broadening slowly down from precedent to precedent but I would rather adopt Lord Denning M.R.’s posture as he once put it in his Romanes Lecture-a Judge should serve the fundamental principles of truth and justice in which case to stand by precedents, however wrong they may be and whatever injustice they may inflict will certainly not broaden freedom. Lord Morris in Conway v. Rimmer (1967) 1 ALL E.R. 1260 regarded precedent as an indispensable foundation on which to decide what the law is yet, said the learned Lord:

“there may be times when a departure is in the interest of justice.”

Notwithstanding this stance which I have taken, it is my humble opinion that the Supreme Court should not overrule itself on the slightest pretence. The Court must as a matter of principle act with the greatest hesitation in coming to that conclusion. In other words, it must be persuaded that an error will certainly be perpetuated or injustice continues to flourish if it fails to overrule itself.

Chief Williams has submitted, and I agree, that in Constitutional matters, the court should more readily be prepared to correct erroneous decisions. As an organic law, the Constitution is the fountain from which all other laws flow. If the fountain is muddy in one part the mud would spread throughout and pollute all that flows from it. Instances of this are to be found in the decisions of the Supreme Court of the United States. In Planny v. Ferguson (1896) 163 V.S. 537, the Court, in a segregation case, held that once, in public facilities accommodation was separate but equal it was constitutional to compel segregation of races in the use thereof. In Brown v. Topeka (1954) 347 V.S. 483, that is sixty years later, the court gave a decision in direct opposition to its view in Planny v. Ferguson. Times had changed and the court’s view was that attitude must change with them. In India, the stance is the same. Hence in Bengal Immunity Co. v. State of Bihar (1955) A.I.R. (Supreme Court) 651 at p. 673 (a case to which Chief Williams had directed the attention of this Court Das, Ag. C.J. said:

“If on a re-examination of the question we come to the conclusion, as indeed we have, that the previous majority decision was plainly erroneous then it will be our duty to say so and not to perpetuate our mistake even when one learned Judge who was party to the previous decision considers it incorrect on further reflection. We should do so all the more readily as our decision is on a constitutional question. . .”

I will readily answer the first question in the affirmative and that is, that it is open, in an appropriate case, to this Court to reconsider its decision in a subsequent proceeding whether the former decision had been given by a full Court of the Supreme Court or its ordinary panel.

The second question is not so easy. To decide whether the previous decision had been erroneous, what is it that impels the Supreme Court to reconsider its view I have found the authorities to whom Chief Gani Fawehinmi referred us very useful in connection with this. Is the Supreme Court to listen to are-argument of the case, though with more authorities on the points! If the points canvassed in the second proceeding are merely points that had earlier been canvassed and all that is being done is to put in more emphasis, by way of more authorities on those points, it is my considered view that that would not amount to a case whereby the Supreme Court should reconsider its view.

In re-application of Woods (1970) I.R. Walsh J. (p. 167 ibid) said:

“In my view sub-section (6) of s.4 of Art 34 refers to the decision of the Supreme Court in a particular case and means that there shall be no appeal available in any court from the particular decision. It does not, for example mean that the Supreme Court cannot reconsider in a later case the ratio decidendi of a previous decision, and indeed this Court has already decided in the State (Quinn) v. Ryan and the Attorney-General v. Ryan’s Car Hire Ltd. that it may do so.”

These are potent words except that when one reads the words in the con of the facts of the Woods case, which was a case of Habeas Corpus, the position is not as strong as the proposition made to us by Chief Gani Fawehinmi in his submissions. However, in Attorney & Anor. v. Ryan’s Car Hire Ltd. (1965) I.R. 642 the Supreme Court of Ireland held that compelling reasons would influence the Supreme Court to reconsider its previous decisions.

The decision of the Privy Council in Nkambulu v. The King (1950) A.C. 379 is important. The Board held that the existence of some fresh material not communicated or at any rate fully presented to the tribunal which heard and decided the earlier case is an element to be borne in mind when deciding whether that case should be followed or not.

It seems to me that the authority could justify the stance taken by Chief Williams in the presentation of his arguments when he seemed, with respect, to have presented the same arguments as he did in the Ifezue case, but now with more authorities and emphasis. However I am of the clear view that for this Court to depart from its decision in a previous case, the arguments must bring some fresh elements not just more authorities which had not been adverted to in the earlier proceedings, or that there have been new developments, even in the socio-economic or political stance of the country, especially when the matter under consideration is a matter that is provided for by the Constitution, to warrant the Court to change its earlier stand.

In this case, I have gone through the profound submissions of Chief Williams and it seems to me, with utmost respect, that all the learned senior advocate has succeeded in doing is to re-argue the Ifezue case with more authorities on the same points as earlier canvassed or at least to regard the present case as an appeal over the Ifezue case.

I do not think that would be sufficient to persuade me to reconsider my earlier stand in the Ifezue case.

Finally, I agree with the conclusion of my learned brother Obaseki J .S.C. that the appeal must be allowed and it is hereby allowed.

I abide by the Orders made by learned brother Obaseki J.S.C.

B. O. KAZEEM, J.S.C.: In this appeal two points emerge for determination, namely:

(a) whether the Supreme Court as the ultimate court in Nigeria sitting as a full court, can depart from and overrule the decision of the same court sitting as a full court in a constitutional matter; and

(b) whether there are sufficient facts and matters present in this appeal to justify a departure from and necessitate any overruling of the decision by a majority of this Court in Chief Dominic Onuorah Ifezue v. Linus Mbadugha and Anor. (1984) 5 S.C. 78 (hereinafter referred to as Ifezue’s case).

As regards the first point, I was never in doubt that this court as the ultimate court in this country and in accordance with the accepted norms has the power and jurisdiction to depart from and overrule its previous decision whether by a full court or otherwise provided there is justification for doing so. This court has done so in the past and all such cases and the reasons for doing so have been reviewed in the lead judgment of my brother Obaseki, J.S.C. I have had the privilege of reading that judgment which has just been read, in draft, and I agree with its reasonings and conclusions. I adopt them as my own. In my view, this court will therefore continue to exercise its jurisdiction to depart from and overrule its previous decisions whether by a full court or not if new matters have emerged to show that the previous decision was wrongly decided and there is compelling reason for doing so; or that the previous decision was given per incuriam or that the previous decision was given without jurisdiction.

As regards the second point, the decision of Ifezue’s case was duly considered by a full panel of this court. The court considered the construction of section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 either on the basis of the mischief rule, or on the principle of the delay of administration of justice or as to whether the provision itself was directory or mandatory.

In its conclusion by a majority of six to one, the court in its considered judgment decided that the provision in section 258(1) of the Constitution is mandatory and that failure to deliver a judgment by a court of competent jurisdiction within three months from the time of the last address in that court and an adjournment for judgment, renders that judgment a nullity.

In Ifezue’s case, Chief Williams, SAN, acting as an Amicus Curiae made submissions which were not dissimilar to those which he made in this court in this appeal except that he cited more American authorities in which he said that similar provisions to that of section 258 (1) of the Constitution had been interpreted to be directory only. All those decisions have been reviewed in the lead judgment; and I agree with my brother Obaseki, J.S.C., that some of them even tend to support the view that the provisions should be interpreted as mandatory. In my view therefore Chief Williams has not given any new facts or shown any compelling reasons why this court should depart from or overrule the decision in Ifezue’s case.

In the circumstances, I will also dismiss the appeal and aware N300, 000 costs in favour of the appellants.

D. O. COKER, J.S.C.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, Obaseki, J.S.C., the reasoning and conclusion with which I agree.

The point in this appeal which was raised and fully considered by this Court in Chief Dominic Onuorah Ifezue v. Livinus Mbudugha (1984) 5 S.C. 79 is concerned with the construction of section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979; the of which has been reproduced in the lead judgment of Obaseki, J.S.C. In the lead judgment delivered by Aniagolu, J.S.C., with which five of the Justices agreed, he came to the conclusion, after exhaustively considering several relevant authorities dealing on the history of the issue which led to the provisions of the section and the rules of constitution pertaining thereto and stated:

“I am firmly of the view that on a proper construction of the words of section 258(1) of the Constitution, having regard to the mischief intended to be prevented, the 1979 Constitution required that the judgment of the Court of Appeal in this matter be delivered within three months of its being “reserved” by that court, after the hearing of the appeal and that failure to do so invalidated the so-called judgment delivered after that period.”

Chief Williams, SAN, in his brief for the respondents, has urged that the decision of the Court should be reviewed and overruled, because the decision was erroneous and that it would be contrary to the public interest and due administration of justice to leave the decision uncorrected.

That the Court has the power to overrule its previous decision is not disputed. This Court has in several cases, which have been cited by learned counsel and examined by my brother Obaseki, J.S.C, overruled previous decisions and those of its predecessors when it has been deemed necessary to do so. I need not repeat those reasons. But I may add that in addition to those reasons, as the final court of appeal in this country, its task is to lay down the guide lines for the development of sound legal principles, there should be no need for the judges to resort to self deceiving rationalism to escape the previous errors, in order to adapt the law to conform to changes in society. The recognition of this fact led Lord Gardiner, the Lord Chancellor of Great Britain, on behalf of himself and Lords of Appeal in Ordinary, to lay down the extra judicial statement in July 26, 1966 (vide (1966) 3 A.E.R. 77), announcing the intention of their Lordship to modify their present practice and while treating former decisions of the House as normally binding, to depart from previous decisions when it appears right to do so.

Chief Williams has brilliantly urged upon the court that it erred in its decision in holding that the provision of section 258(1) of the Constitution of Nigeria 1979 is mandatory and contended that a judgment given after the expiration of three months after final address of counsel is not a nullity. Nothing he has said which was not argued in Ifezue’s case. I am satisfied that all the points were fully and rightly considered in that case.

The decision of the Court of Appeal was given more than three months after it was originally reserved, it cannot be revived after that date, merely by calling upon Counsel to reopen the case by addressing it on any point after the expiration of the mandatory period. The judgment is a nullity.

I will allow the appeal and set aside the purported judgment of the Court of Appeal and order that it be heard de-novo by a differently constituted panel of that Court. I agree with the order for costs made by Obaseki, J.S.C. in his judgment.

M. BELLO, J.S.C.: I had a preview of the judgment delivered by my learned brother, Obaseki, J.S.C. For the reasons so comprehensively stated therein, I agree that the appeal should be dismissed with N300 costs to the respondents. I am satisfied that the appellants have not made out a convincing case to warrant a departure from the majority decision of this Court in Ifezue v. Mbadugha (1984) 5 S.C. 79.

The first question for determination in the appeal is whether this Court has power to depart from its previous decision on the same constitutional question. In other words, whether precedent or the rule of stare decisis is flexible in constitutional cases.

The practice of this Court in non-constitutional cases has well been settled. Recognising that precedent is an essential foundation upon which certainty of the law may be assured the Court ordinarily adheres to the rule of stare decisis and does not readily depart from its previous decision. However, where the Court is satisfied that its previous decision is erroneous and was reached per incuriam and to perpetuate the error, by following such decision, will result in considerable injustice then the Court will depart from such decision or overrule it. Thus in Johnson v. Lawanson (1971) ALL N.L.R.56 the court held that it would not perpetuate an erroneous decision which was reached per incuriam and which, if followed, would inflict hardship and injustice upon generations in the future or cause temporary disturbance of rights acquired under such a decision. Accordingly, the Court overruled Odeneye v. Savage (1964) N.M.L.R. 115 and Williams v. Akinwunmi (1966) 1 ALL N.L.R. 115 which were considered to be erroneous.

In Bucknor-Maclean v. Inlaks Ltd. (1980) 8-22 S.C.1 the Court overruled Shell B.P. v. Jammal Engineering (1974) 1 ALL N.L.R. 543 and Owumi v. P.Z (1974) 1 ALL N.L.R., (Part 2) 107 because following the two previous decisions will perpetuate considerable injustice. Again in Nofiu Surakatu v. Nigerian Housing Society (1981) 4 S.C. 26. Moses v. Ogunlabi (1975) 4 S.C. 81 and Adis Ababa v. Adeyemi (1976) 12 S.C. 51 were overruled because both were decided per incuriam and to follow either, will continue to fetter the discretion which the Court of Appeal undoubtedly has to remedy any non with its Rules if it is in the interest of justice to do so. Furthermore, the decision in Odunfade v. Rossek (1962) 1 ALL N.L.R. 98 followed in Mobil Oil v. Coker (1975) 3 S.C. 197 because the previous decision curtails the right of appeal under section 220 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1979 and it will perpetuate a denial of justice and of constitutional right to follow it.

It appears from the perusal of the foregoing cases that the attitude of this Court on the question at issue may be stated thus: that the Court will not adhere to the rule of stare decision but will depart from its previous decision if such decision is inconsistent with the provisions of the Constitution or if it is erroneously reached per incuriam and will, if followed, perpetuate hardship and considerable injustice or it will cause temporary disturbance of rights acquired under it or will continue to fetter the exercise of judicial discretion of a court. It may be emphasised that the Court has not laid down a hard and fast rule exhausting the area within which to warrant a departure from a previous decision. Each case must be decided on its special facts and circumstances with a view to avoiding perpetuating injustice which, in my view, is the paramount determinant factor in this respect.

Now, there is no provision in the 1979 Constitution depriving the Court of the judicial power to depart from or overrule its previous decision on constitutional questions. However, the jurisdiction of the Court in non-constitutional cases in this respect being an “existing law” within the definition in section 274(4)(b) of the Constitution, 1979 has been preserved under section 274(1) thereof. Since the Constitution is silent on the issue, I would apply the same principle governing non-constitutional cases to constitutional questions.

The question that follows is whether in this instant appeal grounds exist which warrant a departure from the majority decision in Ifezue v. Mbadugha (supra). I do not think so. I am satisfied no perpetual considerable injustice will be caused to the parties or any of them by nullifying a judgment of the Court of Appeal which was delivered outside the 3 months period prescribed by section 258 (1) of the Constitution. As I stated in my dissenting judgment in Ifezue’s case, mandatory construction of section 258(1) would only cause delay and extra expenses in getting justice but ultimately justice will be done. Hence the construction put to the section by the majority will not perpetuate injustice.

For the avoidance of doubt, I may make it clear that I have not departed from my dissenting stance in Ifezue’s case. The American cases cited by Chief Williams at the hearing of this appeal, which were not brought to our attention in Ifezue’s case, particularly Illinois ex Rel Larson v. Thompson 140 A.L.R. 9498 at 952 and Youakar Brothers v. Harry Zirbel 151 A.L.R. 242 at 246 reinforced my view that section 258(1) should be construed as directory. There is no constitutional panacea to immunise judges from falling ill on being involved in an accident, as in this case, from the conclusion of evidence and final addresses to the date of delivery of judgment in case. I appreciate that the proviso to the section made such allowance in respect of the Supreme Court and the Court of Appeal which permits the opinion of justice to be announced or ready by any justice whether or not he was present at the hearing. The opinion of a justice who is ill and absent may therefore be announced by another. That being the case, it follows that illness of a justice is not a valid ground for non-complying with the provisions of section 258(1) of the Constitution.

However, different consideration applies to a course of trial. The section requires the trial judge to deliver his verdict within 3 months of the conclusion of the trial. If he fails to do so on account of illness, the trial must be started de novo as the majority decided in Ifezue’s case. This is where the mandatory meaning of the section will cause hardship and inconvenience particularly in a protracted trial which may involve recall of many witnesses and unnecessary expenses.

Appeal Allowed.

Court of Appeal Decision set aside.

Appeal remitted to the Court of Appeal

for hearing de novo by a different panel.

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SC.144/1983