Wayo Ubwa V. Tiv Area Trading Council & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

Because of the nature of the order which I intend to make finally in this appeal, I do not wish to say anything about the facts and or merit of the case at this stage especially when it is realised that the case may later return to this court. I will therefore confine myself to the short but decisive preliminary point of law relating to the judgments of the Court of Appeal only.

This is an appeal against the judgment of the Court of Appeal holden at Jos in appeal No. CA/J/12/1995 delivered on the 14th day of February, 2000.

The lead judgment herein, dismissing appellant’s appeal, was delivered by Akpabio, J.C.A. who presided and was concurred by Umoren and Mangaji, J.C.A. (see pages 240-253 of the record). However, the record shows on page 238, that the appeal was heard by the panel of Akpabio, Umoren, and Chukwuma-Eneh,J.C.A. on 18/11/99 when judgment was reserved till 27/1/2000. On 27/112000 judgments were not ready and the case was further adjourned to 14/2/2000 by the panel consisting of Akpabio, Chukwuma-Eneh and Mangaji, J.C.A. There was no question of rehearing the appeal all over again on that day. Judgments in the appeal were finally delivered on 14/2/2000 by the panel of Akpabio, Muhammad and Umoren, J.C.A.

Dissatisfied with the judgments of the Court of Appeal the appellant has further appealed to this court. And one of the three (3) issues submitted to this court for determination is:-

“(2) Whether the Court of Appeal was duly constituted when the judgment subject matter of this appeal was delivered on the 14th February, 2000.”

I say straight away that for the purpose of delivering judgment, the court was properly constituted on 14/2/2000. Three (3) Justices were present as shown above, when in fact even one or two Justices would have been sufficient for the purpose i.e. simply to read the judgments (see section 294(4) of the 1999 Constitution below). The real problem here therefore is that instead of reading the judgment prepared or written by Chukwuma-Eneh, J.C.A. who took part with two others in the hearing of the appeal on 18/11/99, it was the judgment of one Mangaji, J.C.A. who did not hear the appeal that was read. So, the proper question or issue to resolve is-

“Whether the judgments delivered by the Court of Appeal on 14/2/2000 were valid or not.”

and not issue (2) of the appellant reproduced above which I have already answered in the affirmative.

The argument of Mr. Ofodile Okafor, SAN for the appellant is that although a justice of the Court of Appeal who did not hear an appeal may sit in the panel to deliver a written judgment of a brother Justice who heard the appeal but who is otherwise unavailable, a judgment written by a Justice who did not participate in the hearing of the appeal will vitiate the proceeding and render it a nullity. That in this case the panel that heard the appeal consisted of Akpabio, Umoren and Chukwuma-Eneh,J.C.A., but the judgments delivered were those of Akpabio, Umoren and Mangaji,J.C.A. It was pointed out that as Mangaji J.C.A. did not take part in the hearing of the appeal, he could not validly write a judgment in the case. It was a nullity and the entire proceeding was consequently a nullity. Reference was made to section 247(1) and section 294(2) & (4) of the 1999 Constitution. They are as follows –

“247(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal …. ”

“294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing. ”

“294(4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that court sits for that purpose.”

(Italics supplied by me)

A number of cases were also cited in support including Queen v. Governor-In-Council WR. Ex-Parte Laniyan Ojo (1962) 1 All NLR 147, Madukolu v. Nkemdilim (1962) All NLR (Pt.2) 587; Mai Rai v. Bauchi N.A. (1957) NNLR 31; Nana Tawiah v. Kwesi Ewudzi 3 WACA 52; Otwiwa & Anor. v. Kwaseko 3 WACA 230; Chapman v. CFAO 9 WACA 181.

I think Mr. Okafor is right. I agree with him. The appeal must therefore succeed on this issue alone. It is hereby allowed.

The entire proceedings before the Court of Appeal were a nullity because all the members who heard the appeal and those who wrote the judgments were not the same. In other words all the members who wrote the judgments were not all present throughout the hearing of the appeal which includes delivery of judgment. The judgment of the Court of Appeal delivered on 14th February, 2000 is therefore a nullity. It is accordingly set aside. It is hereby ordered that the Appeal No. CA/J/12/95 shall be heard de novo by another panel of Jos Division of the Court of Appeal.

The defendant/appellant is awarded costs of N10,000.00 against the plaintiffs/respondents.

SC.71/2000