Richard Boyi V. A-G., Bendel State (1984)

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BELLO, J.S.C.

The appellant was convicted of murder by the High Court of Bendel State. The Court of Appeal heard his appeal against that conviction on 13th September, 1983 and reserved judgment on a date to be notified. Under the circumstances section 258 of the Constitution required that the Court of Appeal ought to deliver judgment by 13th December 1983.

On 10th January 1984 the Court of Appeal re-opened the appeal and after hearing further argument reserved judgment which it delivered on 21st February, 1984. Having regard to the decision of this Court in Chief Ifezue v. L. Mbadugha SC.68/1982 delivered on 18th May, 1984 the judgment of the Court of Appeal is a nullity and is hereby set aside.

Accordingly the appeal is allowed. The case is remitted to the Court of Appeal for hearing de novo.

COKER, J.S.C.: This appeal is allowed. The Court of appeal gave its decision more than three months after the date it was reserved, contrary to the provision of section 258 of the 1979 Constitution of Nigeria. That being the case, the judgment of that court which was reserved on the 13th of September, 1983 and delivered on the 21st February, 1984 is a nullity. Accordingly, the appeal is remitted to the Court of Appeal for hearing de novo.

KARIBI-WHYTE, J.S.C: This is an appeal against the judgment of the Court of Appeal, Division at Benin City, dismissing the appeal of the appellant for murder on the 21st February, 1984. Appellant was convicted by the High Court Sapele on the 24th July, 1981, of the murder of his mother. His appeal to the Court of Appeal was heard on the 13th September, 1983, and judgment reserved to a date to be announced later. Judgment was delivered on the 21st February, 1984. This is more than three months from the date of hearing and conclusion of addresses of counsel. Section 258(1) of the Constitution 1979, has provided as follows –

“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.”

This section is mandatory, and the expression “shall deliver its decision in writing not later than three months after the conclusion of evidence and final addresses,” renders such decision delivered thereafter a nullity. In the circumstances of this case, there is merely a proper appeal from a judgment which is a nullity. The only solution in this case to the attainment of justice is to order a rehearing of this appeal in the Court of Appeal – See R v. Abodundu (1959) 4 F.S.C.70. The appeal is therefore allowed, there shall therefore be a rehearing of the appeal in the Court of Appeal.

KAWU, J.S.C.: The judgment of the Court of Appeal having been delivered more than three months after the conclusion of hearing contrary to the provisions of section 258 of the Constitution is definitely a nullity, and for this reason this appeal is allowed. The case is to be remitted to the Court of Appeal for hearing de novo.

OPUTA, J.S.C.: The appellant was on the 24th July, 1981, convicted of the murder of his mother by Obi, J. sitting in the Sapele Judicial Division of the High Court of Bendel State of Nigeria. His appeal to the Court of Appeal, Benin Division, was dismissed. He now appeals against that dismissal to this Court. Learned counsel for the appellant, Shola Rhodes Esquire, in his brief found himself “unable to put forward any point in favour of the appellant.” Learned counsel for the respondent, D. E. Hayble Esquire (Deputy Solicitor-General, Bendel State) entirely agreed with the decision of the court of first instance and in his own brief frankly admitted “that there is nothing to urge in favour of the appellant.” I entirely agree with both counsel.

The first question calling for an answer is: Is there any appeal pending before this Court The answer seems to be yes. The second question is: Against what judgment is the appeal pending

The Court of Appeal, Benin Division, heard the appellant’s appeal, and on the 13th September, 1983, it reserved judgment. Under section 258(1) of the Constitution:

“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.”

From 13th September, 1983, the Court of Appeal, Benin Division, had up to and including 13th December, 1983, to deliver its judgment. But the judgment in this case was delivered on the 21st February, 1984, that is, 2 months and 8 days beyond, and in excess of the statutory period of 3 months. The court below on 10th January, 1984, when the statutory period of 3 months had already expired, and apparently to keep the appeal alive, invited further argument. This does not remedy the situation.

The judgment appealed against is still a nullity. The only subsisting judgment is that of the court of first instance which was and still is validly on appeal before the court below.

In the surrounding circumstances and having regard to an earlier decision by this court in Chief Dominic Onuorah Ifezue v. Deputy Sheriff, Onitsha, SC.68/1982 delivered on the 18th May, 1984, this appeal will be allowed and the case remitted to the court below for hearing de novo.

Appeal allowed.

Other Citation: (1984) LCN/2210(SC)