Saidu H. Ahmed & Ors V. Central Bank Of Nigeria (2013)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an application brought pursuant to Section 22 of the Supreme Court Act, 2004, Order 2, Rules 28(1) – 29(1) & (2), 2, Order 10 Rule 1(1) Supreme Court Rules, 1999, S.(1), S.36(1), S.17(1), (2)(a) and (e) and S.294(5) of the Constitution of the Federal Republic of Nigeria, Art 3 and 7 of the African Charter on Human and Peoples’ Rights (ACHPR); (Ratification Enforcement Act) 1990 and the inherent jurisdiction of this court.

The prayers sought are as follows:

1. An Order formally nullifying or setting aside the judgment and “Orders” “given” on July 6, 2012
2. An Order directing that Appeal No SC.34/2005 be reconsidered by a different panel of Justices of this honourable court.
3. Such further or other Orders as this honourable court may deem fit to make in the circumstances.

The Grounds upon which the application was brought are thus:

1. The learned justices prevented counsel to the appellants to argue the appellant’s appeal contrary to the Supreme Court Act and Rules, the constitution, the African Charter on people & Human Rights and numerous extant decisions of the Supreme Court.
2. At the hearing of SC.34/2005 and as manifested in the lead ‘Judgment’, the court completely disregarded the Notice of Appeal, as it prevented arguments, which will have enabled it to truly resolve all the issues which arose in the appeal for decision in accordance with correct legal principles to enable it end up with an ultimate verdict that should flow logically.
3. It is not the whole panel that heard the appeal that provided their judgments as strictly stipulated by the constitution, but instead three justices delivered and furnished their judgment while the justice that presided, who had even retired, purportedly delivered and furnished an undated judgment over a month after it was supposed to be delivered and furnished; as bad, the fifth panelist is yet to furnish his judgment five months after he is supposed to so do, and
4. In the interest of justice.

The application was supported by a 28 paragraph affidavit even though the applicant abandoned some of the paragraphs specifically, 3, 4, 5, 6, 7, 8, 13, 16, 22, and 23. Also abandoned by the learned counsel for the applicant were grounds 1 and 2 of the application with Ground 3 left upon which he based his arguments. The abandoned or withdrawn paragraphs of the affidavit and Grounds of the application were struck out.

The relevant remainder of the supporting affidavit deposed to by Saidu H. Ahmed, the first applicant, Chief promoter and Director of the 2nd and 3rd applicants. The paragraphs are captured hereunder thus:

1. That we were in court when judgment was supposed to be delivered by this honourable court on July 6, 2012.
2. After we heard the pronouncement of the judgment in court, our counsel proceeded to the registry to obtain Certified True copies (CTC’s) of the judgments, Only three judgments were delivered and furnished as two other judgments were not written and hence were not furnished as stipulated by the constitution.
3. That we were informed by our counsel and we verily believe him that on the 23rd of July 2012 he made an application to the relevant office of the Supreme Court of Nigeria for the CTC’S of the judgments that were said to be delivered on the 6th of July 2012 to be furnished to him as stipulated by the constitution. Counsel informed us, and showed us the letter he wrote, that only the three judgments earlier furnished were available as at the close of work on the 24th of July 2012. Annexed to this affidavit is the letter from our counsel to the Supreme Court marked ‘ANNEXURE B”
4. That on the following day, July 25 2012, out counsel drew our attention to the retirement of the Presiding Justice that heard our appeal, F. F, Tabai JSC, which he read on the pages of newspapers. I personally also bought newspapers and saw the news of the retirement of the learned justice together with many advertisements congratulating him for many years of meritorious service in transparency and integrity as well as his landmark achievements. The judgments that were furnished by the Supreme Court the previous day and the endorsement on counsel’s letter showed that F. F. Tabai’s judgment was not furnished as it was not produced.
5. While I saw clearly that the Presiding Justice that heard our appeal had retired, counsel showed us as manifested in his letter to the Supreme Court, that another justice that was supposedly on the panel that dismissed my appeal, O. Ariwoola JSC did not furnish his judgment as he had not produced it. I became confounded and asked our lawyer whether he is sure of what he said, even though I saw his correspondence to the Supreme Court and the acknowledgment coupled with the endorsement of his letter of the justices whose judgments were furnished.
6. Our counsel then made his last attempt by piling pressure to obtain all the CTC’s of the judgment on the 25th of July 2012. In his letter to the Supreme Court, our counsel was even specific as to which judgments had been furnished and the outstanding judgments that were yet to be furnished. The relevant offices at the Supreme Court made strenuous efforts to ensure that all the judgments that were said to be delivered in appeal No.SC.34/2005 were furnished to our counsel. Having failed to so do, the relevant registry was still only able to furnish the three available judgments delivered in SC.34/2005, viz, those of J. A, Fabiyi JSC, O. O. Adekeye JSC, and B. Rhodes-Vivour JSC. Those of F. F. Tabai JSC and O. Ariwoola JSC were non-existent and could therefore not be furnished as counsel was told that the justices had not written them. Annexed to this affidavit is the said letter of 26th July 2012 from our counsel to the Supreme Court marked “ANNEXURE C”
7. That our counsel wrote and forwarded a petition and an application to the Chief Justice of Nigeria on the 8th of August 2012.
8. In the petition, our counsel expatiated on the things he felt went wrong during the hearing of SC.34/2005 and subsequent acts that concomitantly nullified the hearing and decision Appeal No.34/2005.
9. In the petition, our counsel formally applied to the Chief Justice of Nigeria for reconsideration of Appeal No. 34/2005, giving copious reasons why the appeal should be reconsidered.
10. By a letter dated August 10 2012, attached as “ANNEXURE D” the Deputy Chief Registrar, under directives, responded to our counsel’s petition and stated inter alia that the written concurring judgments,are now available, and are herewith enclosed and forwarded to you”
11. I have been reliably informed by counsel that the statement in the letter, “are now available” is an admission that they were not available before then thereby breaching the constitution.
12. I was also shown some pieces of paper that were forwarded as concurring judgment by Ariwoola JSC. The papers shown to me were unsigned and undated which we were properly informed totally fails to accord with what is a judgment. The said pieces of paper are hereby attached and marked “ANNEXURE F”
13. To buttress the averments in paragraphs 10 to 23, the judgment,, in SC.34/2005 has been published electronically to the world by the electronic law website, Law pavilion without the “judgments of the justice that presided over the “hearing” of the said appeal, Tabai JSC and Ariwoola JCS. We also saw what was said to be the judgment in SC.34/2005. This we were informed is unprecedented. Attached herewith is the said judgment as published electronically for the whole world by law pavilion and printed at 16.22 hours, 4.22 P.M. on December 10, 2012, attached herewith and marked “ANNEXURE G”. I have been reliably informed by our counsel and we have reason to believe that it has never happened anywhere in the Common law world for a judgment to be published without judgments furnished by the justices that heard the case reported; and that this was simply because that was all that was available to and from the reporters of the case as at the date and time “ANNEXURE G” was printed.
14. That we verily believe that the interest of justice will be best served if the Venerable Supreme Court in exercise of its powers as shown and anchored by our application grant our request to reconsider the appeal in SC.34/2005 as there were fundamental irregularities, grave procedural errors, miscarriage of justice as well as inconclusive judgment flowing from fundamental breaches of the Constitution of the Federal Republic of Nigeria, judicial authorities as well as the Supreme Court Rules.

Chief Robert Clarke SAN, learned counsel for the applicants stated that the judgment in question was delivered in open court on the 6th of July, 2012 and counsel for the appellants/applicants approached the relevant office and registrars at the Supreme Court to obtain the judgment that was delivered in open court together with what were said to be concurring judgments. That only three judgments were furnished by the relevant registry and all efforts to be provided with all the judgments of the 23rd July 2012 again only yielded result of three available judgments furnished, namely; those of Adekeye JSC, Fabiyi JSC and Bode Rhodes-Vivour JSC. That those of the Presiding Justice F. F. Tabai JSC and O. Ariwoola JSC were yet to be delivered and made available. He stated on that, pressure was piled as efforts were made by counsel to be furnished with all the judgments on the 26th of July 2012 which yielded results of the same three judgments earlier furnished which led to the assumption that the judgments were not even written, talk less of being furnished to the parties. This was three weeks after judgment was supposedly delivered on the 6th July 2012 thereby caught by Section 294(1), (2) and (5) of the Constitution of Nigeria, 1999. Chief Clarke pointed out that the presiding justice in Sc.34/2005, F. F. Tabai JSC retired with effect from July 24th, 2012 and so had left the court when he wrote the concurring judgment. He referred to Ajayi v. The State (1978) 1 LRN 260; Okorowa v The State (1975) 5 SC; Sylvanus Unakanamba v COP (1958) FSC 7.

Learned counsel for the applicants submitted that what comes out clear is that the appeal No.SC.34/2005 was heard by five justices in open court but only three justices decided the matter instead of five, since there is nothing to show that the matter was decided by a panel of five as mandatorily stipulated by the constitution. He cited Section 234 of the 1999 Constitution; Ogbunyinya v Okudo (1979) 9 SC. 32.

Further submitted for the appellant is that the situation was all the more compounded with what would have been the fifth judgment precisely that of Ariwoola JSC being unsigned and undated though certified coming a month after the delivery of the judgment. He referred to Ajayi v The State (1978) 1 LRN 260;

Raheem Aleshinloye (1998) 9 NWLR (Pt.564) 71;

Isalibawa v Habiba (1991) 2 NWLR (Pt.174) 461;

Ifezue v Mabadugha (1984) 1 SCNLR 427; S.258 (1) Constitution 1979;

Osafile v. Odi (1990) 3 NWLR (Pt.137).

Chief Clarke SAN referred to what happens in other international arena like United Kingdom, Australia, United States etc, along with judicial authorities from those territorities on when the Supreme Court needs to set aside a judgment that fails to meet the required standard of what a judgment should be.