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In The Supreme Court of
On Friday, the 13th
day of July 2007
Before Their Lordships
S.C. 289/2002
Between
And
Ruling of the Court
Delivered by
Francis
Fedode Tabai J.S.C
This ruling is
sequel to an application dated and filed on the 11/10/2006. The application
seeks the following reliefs:
1.
Setting aside the judgment of this
honourable
court delivered in this appeal on Friday 5th May 2006.
2.
Rehearing of the appeal by a reconstituted panel of justices of this
honourable court consisting of 7 (seven)
honourable justices.
The grounds for
the application are stated therein to be that:
(i)
The
appeal giving rise to the said judgment relates to a decision of the Court
of Appeal in a civil matter on a question as to the interpretation and
application of Section 251(l)(d) of the Constitution of the Federal
Republic of Nigeria 1999 ("the 1999 Constitution.")
(ii)
By virtue of Section 234 of the 1999 Constitution appeals
requiring the interpretation and application of the constitution by this
honourable court shall be heard by 7 (seven)
justices of this Court.
(iii)
The panel of the Supreme Court that heard this appeal on 6th
February 2006 was made up of only 5(five) learned justices.
(iv)
The
honourable court was not properly constituted to
hear the appeal and thus lacked the jurisdiction to do so or to deliver a
judgment thereon.
(v)
After hearing the appeal
but prior to the delivery of judgment of this
honourable court the respondent/applicant brought an application
dated and filed on the 17th March 2006 seeking a rehearing of the
appeal by a reconstituted 7(seven) man panel of learned justices of this
honourable court.
(vi)
The
application referred to in paragraph 5 above was not heard before judgment
was delivered and remains pending.
(vii)
The delivery of the court's judgment without hearing the pending application
amounted to a determination and refusal of the said application without
granting the respondent a fair hearing or any hearing at all contrary to
Section 36 of the 1999 Constitution.
(viii) The
judgment of this honourable court delivered on
5th
May 2006 is a nullity being one in
which the appeal was heard without the fulfilment of a condition precedent
to the exercise of jurisdiction and which also violates the principle of
fair hearing.
(ix)
This honourable court has the
jurisdiction to set aside its own judgment where it is found to be a
nullity.
(x)
Jurisdiction being a sine qua non for the existence of
the power to adjudicate can be raised at any time.
The application
is supported by a 14 paragraph affidavit. In paragraph 4 thereof the
applicant restated the three questions that called for determination in the
appeal as follows:-
(i)
The interpretation and application of Section 251(l)(d) with
particular reference to the proviso to the said section, as to whether or
not a dispute between a financial institution and its client is one over
which the Federal High Court has exclusive jurisdiction.
(ii)
Whether or
not the proviso to Section 251(l) (d) of the 1999 Constitution which
exempts disputes between a bank and its
individual customers from the
exclusive jurisdiction of the Federal High Court applies when the dispute is
between a financial institution and its client.
(iii)
Whether or not by Section 22(3) of the Federal High Court Act
which purports to empower the High Court of a State to transfer a matter
over which it has no jurisdiction to the Federal High Court is valid and
subsisting as an existing law by the combined effect of Sections 4, 274
and 315 of the 1999 Constitution.
In compliance
with the directives of this court, learned counsel for the parties submitted
their written addresses which they adopted on 17/4/07 when the appeal was
heard. The applicant's written address and the written address in reply to
the respondent's address were prepared by the law firm of
Babalakin & Co. and they were filed on 30/1/07
and 6/4/07 respectively. The address on behalf of the respondent was
prepared by Ayo Ajayi of P.O.
Fagbohungbe & Co. and same was deemed filed on
12/3/07. The applicant raised one issue for determination. It is:
Whether given the circumstances of this case the Supreme Court ought to set
aside its judgment delivered on the 5th May 2006 and rehear the
appeal?
And the only
question raised by the Appellant/Respondent in its brief is:-
Whether or not the judgment delivered by the Supreme Court in this appeal on
the 5th May 2006 should be set aside and the appeal re-heard?
The parties
therefore agree on the only issue that calls for determination of this
application.
Arguing the
motion the Applicant cited a number of authorities on the inherent powers of
this Court and other superior courts of record to set aside their own
judgments and the circumstances that warrant such setting aside orders. The
applicant referred to Sections 233(2)
and 234 of the 1999 Constitution and submitted that the Supreme Court is
only properly constituted to hear an appeal that entails the interpretation
and/or application
of the provisions of the constitution if it is
constituted by a panel of 7 (seven) justices and that it was
unconstitutional for the 5 (five) man panel to hear the appeal on 6/2/2006
and that the subsequent judgment of 5/5/2006 was for that reason null and
void. On the competence of the court to set aside its own judgment on the
ground of nullity reliance was placed on
Odofin
v Olabanji (1996) 3 N.W.L.R. (Part 435) 126 at
133. It was argued that the provisions of
Sections 233(2) and 234(2)(b)
of the 1999 Constitution are clear and unambiguous and urged that a
literal interpretation be given to them. Reference was made to the word
"shall" used in the proviso to
Section 234 of the Constitution and submitted that as a general rule the
word connotes a command and that it is imperative mandatory and admits of no
discretion. In support of this submission the applicant relied on
Bamaiyi
v A.G. of the Federation (2001) 12 NWLR (Part 727) 468 at 497;
Ogidee
v The State (2005) 5 NWLR (Part 918) 286 at 327. Although it was
conceded that the word "shall" may in some
circumstances have a directory rather than mandatory connotation, it was
submitted however that such connotation applied mostly in the interpretation
of rules of court and not to statutory and constitutional provisions.
Reliance was placed on
Katto
v Central Bank of
The applicant
further referred to what it regards as a set of conflicting decisions of
this court and for the resolution of which conflict a seven man panel was
necessary. The first is
Omisade
v Akande (1987) 2 NWLR (Part 55) 158 at 171
which, according to the applicant, suggests that State High Court may
transfer a matter to the Federal High Court where it finds that it has no
jurisdiction to entertain it. The other set is made up of
Aluminium
Manufacturing Co. (Nig) Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part
51) 475 at 488-489, Awoyele v
Board of Customs & Excise (1990) 2 NWLR (Part 133) 490 and
Fashakin
Foods (Nig) Ltd v Shosanya (2006) 10
NWLR (Part 987) 126 at 147 which, according
to the applicant decided that a State High Court has no power to transfer a
matter to the Federal High Court. According to the applicant the judgment
sought to be set aside has again decided that the State High Court has the
power to transfer a matter to the Federal High Court. The applicant further
referred to page 22 of the respondent's brief and the invitation therein for
this court to depart from its decision in
Omisade
v Akande (1987) 2 NWLR (Part 55) and
submitted that the said invitation, which was consistent with the usual
practice of this court and the provisions of
Order 6 Rule 5(4) of the rules of
this court, necessitated a panel of 7 (seven) justices of the court,
since it would be unusual for a panel of 5 (five) justices to review and
possibly depart from its decision by a panel of 7 (seven) justices of this
court. Adegoke
Motors Ltd v Adesanya (1989) 3
NWLR (Part 109) 250 at 268 -275, 276-277 was
cited in support of this submission.
On the issue of
fair hearing the applicant referred to its application dated 17th
March 2006 seeking a re-hearing of the appeal, and the decisions in
Ndukauba
v Kolomo (2005) 4 NWLR (Part 915) 411 at 429;
Afro-Continental (Nigeria) Ltd &
Anor v Co-operative Association of Professionals
Inc. (2003) 5 NWLR (Part 813) 303 at 317-318,
Magna Maritime Services Ltd v
Oteju (2005) All FWLR
(Part 270) 1995 2012,
Cookey
v Fombo (2005) 15 NWLR (Part 947) 182 at 201
and submitted that the subsequent judgment is a nullity.
It was finally urged that the appeal be re-heard by a newly
constituted panel of 7 (seven) justices.
On behalf of the
appellant/respondent, the following arguments were submitted. The first
submission is that at the time the appeal was heard
Section 251(l)(d)
of the 1999. Constitution had been interpreted over and over again by a
full seven man panel of this court in
Federal Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation
(1999) 2 NWLR (Part 591) 333 and
Nigeria Deposit Insurance Corporation v Okem
Enterprises Ltd (2004) 10 NWLR (Part 880) 107 and that in the
circumstances it sufficed for five justices of this court to sit over the
present appeal since there was nothing new in the provision to be
interpreted. It was submitted that it is only when a ground of appeal raised
questions about the interpretation of the constitution that is recondite or
substantial that a full court may be required to pronounce upon such issues.
In support of this submission the appellant/respondent referred to
Bamaiyi
v Attorney-general of the Federation (2001) 12 NWLR (Part 727) 468 and
the decision in this appeal reported as
Associated Discount House Ltd v
Amalgamated Trustees Ltd (2006) 10 NWLR (Part 989) 635.
With specific
reference to Section 234 of the 1999
Constitution it was the submission of the appellant/respondent that the
interpretation urged by the respondent/applicant would make the provision
unworkable, unrealistic and unwieldy. It was pointed out that the proviso to
Section 234 refers to appeals
brought under Section 233(2)(b)
or (c) of the 1999 Constitution and argued that the
respondent/applicant's arguments were only on
Section 233(2)(b) but were
conspicuously silent on Section
233(2)(c) which concerns the provisions of
chapter IV of the 1999 Constitution.
It was the appellant's view that if the construction urged by the applicant
is accepted then this court would sit as a full court in practically every
appeal since there is hardly any appeal that does not involve some
complaints about fair hearing. Such a situation, it was argued, could not
have been the intendment of the framers of the constitution and that the
provision of Section 234 is
permissive or directory and not mandatory. It was the further submission of
the appellant/respondent that when this court is faced with two alternative
interpretations of the constitution, the alternative that is consistent with
the smooth running of the system should prevail. For this submission the
appellant/respondent relied on
Tukur
v Govt. of
The
appellant/respondent proffered arguments to distinguish
Ishola
v Ajiboye (1994) 6 NWLR (Part 352) 506 from
the present case and submitted that the principle in that case is not
applicable in this case, or at best it is only an
obiter dictum. On
the submission of the respondent/applicant about there being a conflict in
the decisions of this court in
Omisade
v Akande (supra)
Aluminium
Manufacturing Company v
Nigerian Ports Authority (supra),
Awoyele
v Board of Customs and Excise (supra),
Fashakin
Foods (Nig) Ltd v Shosanya (supra) and this
case Associated Discount House Ltd v
Amalgamated Trustees Ltd (2006) 10 NWLR (Part 989) 635, the submission
of the appellant/respondent was that there was no such conflict. It was
further submitted that the constitutionality or otherwise of
Section 22(3) of the Federal High
Court Act is not an issue in the application. On the invitation of the
respondent/applicant at page 22 of its (respondent's) brief for this court
to depart from its previous decision in
F.M.B.N. v N.D.I.C. (supra) and
Omisade
v Akande (supra) it was argued, that such
invitation was not made one of the grounds either in the application for
hearing the appeal dated 16/3/2006 or in the present application of
11/10/2006.
On the issue of
fair hearing it was the submission of the appellant/respondent that the
failure to hear the motion of 16/3/2006 did not occasion any miscarriage of
justice particularly having regard to the outcome of the appeal. The
appellant/respondent gave details of the various applications filed by the
respondent/applicant and opined that it was a ploy by the applicant for
delay and has actually occasioned a delay for about nine years and urged
that the application be dismissed.
In its reply
brief the respondent/applicant referred to the appellant's brief of argument
in the substantive appeal filed on 1/4/2003, its request therein to
interpret the word "bank" in Section
251(l)(d) of the 1999 Constitution and submitted that a full court ought
to have heard the appeal. It was submitted that the question of whether the
word "bank" in Section 251(l)(d)
of the 1999 Constitution should be interpreted to include a financial
house had not been decided in either
FMBN
v NDIC or NDIC v
Okem.
The
respondent/applicant further referred to
Section 233(2) and 234 (b) and (c).
Bamaiyi
v A.G. of the Federation (supra)
Governor of Kwara State v
Ojibaka (2007) MJSC vol.
I page 10 and submitted that the proviso to
Section 234 admits of no
qualification as to the type of appeals brought under
Section 233(2)(b) or (c) and that
Section 233(2)(c) is relevant and
that the use of the word "shall" in the proviso must be given its mandatory
intention.
With respect to
fair hearing, it was the further submission of the respondent/applicant that
the lack of fair hearing cannot be waived and that the failure to hear the
application of 17/3/2006 rendered the judgment of 5/5/2006 null and void
irrespective of whatever the result of the hearing would have been. Reliance
was placed on Mobil
Producting (Nig) Un Ltd &
Anor v Minikpo & Ors (2003) 18 NWLR (Part
852) 346 at 413; State v
Onagoruwa NWLR (Part
221) 56 ;
Adigun v A.G. Oyo State (1987) 1 NWLR
(Part 53) 678 at 709 and 721,
Adeyemi
v Ike-Oluwa & Sons (1993 ) NWLR (Part 309) 27 at
40 and Amadi
v Thomas Aplin & Co. Ltd (1972) 4 SC 228.
I have considered
the application, the supporting affidavit together with the various
documents attached thereto and the submissions of counsel for the parties.
Let me first dispose of an issue in respect of which counsel for the parties
proffered considerably detailed submissions. The issue pertains to whether
there exists a conflict in the decisions of this court in
Omisade
v Akande (supra),
Aluminium Manufacturing Co. v
Nigeria Ports Authority (supra),
Awoleye
v Board of Customs and Excise (supra),
Fashakin
Foods Nig. Ltd v Shosanya (supra) and this
case Associated Discount House Ltd v
Amalgamated Trustees Ltd (supra) and if so, whether such a conflict
automatically necessitated a panel of seven (7) justices of this court to
hear the appeal.
Firstly, I agree
with the respondent/applicant that there exists a conflict in the decisions
of this court in
Omisade
v Akande (supra) on the one hand and
Aluminium
Manufacturing Co. (Nig) Ltd v Nigerian Ports Authority,
Awoyele v Board of
Costoms & Excise and
Fashakin Foods (Nig) Ltd v Shosanya
& Anor.
In Omisade
v Akande (1987) 2 NWLR (Part 55) 158; (1987) 1
NSCC 486 decided on 10/4/87 this court held that a State High Court has,
by reason of the provisions of
Section 22(3) of the Federal Revenue Court (Amendment) Act 1975, the
power to transfer a case over which it has no jurisdiction to the Federal
High Court and invoking the provisions of
Section 22 of the Supreme Court Act,
ordered transfer of the case to the Federal Revenue Court. It is to be noted
that there is no indication in the report that the attention of this court
was drawn to its earlier decisions on 27/2/87 in
Aluminium
Manufacturing Co (Nig) Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part
51) 475; (1987) 1 N.S.C.C. 224; In
Aluminium
Manufacturing Co. (Nig) Ltd v N.P.A. (supra),
Awoleye
v Board of Customs & Excise (1990) 2 NWLR (Part 133) 490 and
Fashakin
Foods (Nig) Ltd v Shosanya (2006) 10
NWLR (Part 987) 126 this court held that a
State High Court has no power of transfer of a case over which it has no
jurisdiction to the Federal High Court.
But the matter
does not end there. The question is was the resolution of this conflict as
to the authority of a State High Court to transfer a case over which it has
no jurisdiction to the Federal High Court relevant in the
determination of the appeal in this case? In
other words, was the resolution of that
conflict an issue in the appeal that was decided on 5/5/2006?
It is settled law that parties are
bound by the case they presented to the court and
the issues raised thereby for trial. Similarly
the court is bound to limit itself to the
case presented and the issues raised by the parties.
And none of the parties is allowed
to make a new case either at the court of trial or on appeal
without amending the originating process. See
Akinfolarin
v
Akinola
(1994) 3 NWLR (Part 335) 659;
National Investment and Property Co.
Ltd v Thompson
Organisation Ltd (1969) 1 ALL
NLR 138; Onyia v
Onyia (1989) 1 NWLR
(Part 99) 514;
Enang
v Adu
(1981) 11 -12 SC 25 at 36.
In the instant
case the originating process which culminated in the appeal that was decided
on 5/5/2006 and which decision is sought to be set aside is the notice of
preliminary objection dated 1/7/99 but filed on 2/7/99 copied at page 10 of
the record. The relief sought therein states:
“That this honourable court lacks jurisdiction
to entertain the matter and that the matter should be struck out with
substantial costs in favour of the
defendant/applicant herein accordingly, the same being a gross abuse of the
court process.”
Thus the
defendant/respondent/applicant simply sought a striking out order for the
trial court's alleged lack of jurisdiction. There was no prayer for transfer
of the case back to the Federal High Court from where the suit had
originated. It is not surprising therefore that in the ruling of the learned
trial judge K.O. Alogba
J of 12/1/2001 there was no pronouncement made on the question of whether
the Lagos State High Court had power to transfer a matter in which it has no
jurisdiction to the Federal High Court. And both in the grounds of appeal to
the court below and the issues formulated there from none of the parties
raised that issue.
In its judgment
on 16/9/2002 however, the court below in the concluding
paragraph at pages
82-83 of the
record apparently while
contemplating a transfer of the suit to the
Federal High Court raised the issue
suo
motu and considered same. There is
nothing on the record to show that the
parties were heard on the issue. And in the appeal before this court
both parties, apparently taking a cue from the
court below, raised the issue in their
briefs of argument. In its judgment on 5/5/2006 this court considered the
issue and ruled, correctly in my view, that the issue was not
relevant to the determination of the appeal. It
nevertheless expressed the opinion that
the High Court of a State can, under the provisions of
Section
22(3) of the Federal High Court Act,
transfer a case in respect of which it has
no jurisdiction to the Federal High Court. The opinion was clearly the
court's passing remark. It was clearly an
obiter dictum.
At page 649 of
the report, the court, per Pats-Acholonu
J.S.C, stated:-
“... I believe that where a provision in a statute is liable to be construed
either in the positive or in the negative form or connotation, then it is
definitely more beneficial to adopt the interpretation that is more in tune
with public will and benefit. In appropriate cases it is my view that the
High Court can make an order of transfer but that is not relevant in the
case here.”
I agree with the
underlining above that the issue of whether the Lagos State High Court has
the power to transfer a case to the Federal High Court was not relevant to
the determination of the single issue of jurisdiction in the appeal, same
not having been raised in the originating preliminary objection filed at the
Lagos State High Court on 2/7/99. A court of law will not engage itself in
adjudicating on an academic or hypothetical question simply because
counsel for the parties have raised it in their
addresses. See
Akinfolarin v
Akinola (supra) and
Dike v Nzeka
(1986) 4 NWLR (Part 34). For the foregoing
considerations therefore I hold that the resolution of the conflict in the
decisions of this court on the power of a State High Court to transfer a
case to the Federal High Court was not relevant to the determination of the
single issue of jurisdiction raised in the preliminary objection in the
appeal. The issue is therefore also not necessary in this application and so
its resolution in whichever way would be a mere academic exercise. I have no
doubt that the issue of whether a State High Court has the power to transfer
a case over which it has no jurisdiction to the Federal High Court ought to
and should be resolved in an appropriate case, but definitely not in this
case.
And for the same
reasons contained in the foregoing considerations I hold also that the
invitation by the respondent/applicant for this court to depart from
Omisade
v Akande was not relevant to the
determination of the appeal, and equally not relevant in this application.
The main issue:
The only issue of
whether or not it was mandatory for a seven man panel of this court to hear
this appeal because it involves the interpretation and/or application of
Section 251(l)(d)
of the 1999 Constitution of the Federal Republic of Nigeria depends, in
my view, wholly and entirely on the meaning to be accorded the provision of
Section 234 of the same Constitution.
Section 234 provides:
“For the purpose of exercising any jurisdiction conferred upon it by this
constitution of any law, the Supreme Court shall be duly constituted if it
consists of not less than five justices of the Supreme Court.
Provided that where the Supreme Court is sitting to consider an appeal
brought under Section 233(2) (b) or (c) of this Constitution, or to
exercise its original jurisdiction in accordance with Section 232 of this
Constitution, the court shall be constituted by seven justices.”
And
Section 233(2) (b) and (c)
covered by the above proviso says:
233(2)
"An appeal shall lie from decisions of the Court of Appeal to the Supreme
Court as of right in the following cases:
(a)
………………………..
(b)
decisions in any civil or criminal
proceedings on questions as to the interpretation or application of this
constitution.
(c)
decisions in any civil or criminal
proceedings on questions as to whether any of the provisions of chapter IV
of this constitution has been, is being or is likely to be contravened in
relation to any person."
The substance of
the argument of the respondent/applicant is that this appeal which involves
the interpretation or application of
Section 251(l)(d) of the Constitution falls
within the matters contemplated in
Section 233(2)(b) of the Constitution which in turn comes within the
proviso to Section 234 of the
Constitution mandatorily requiring a panel of seven justices and that
the decision of 5/5/06 having been reached by a panel of five was
unconstitutional, null and void. The submission of the appellant/respondent
was that the use of the word "shall" notwithstanding the proviso was, in the
context, merely directory and that the five man panel sufficed.
The bone of
contention is whether the word "Shall" in the proviso conveys a mandatory or
merely directory connotation. Learned senior counsel for the
respondent/applicant conceded that the word "Shall" may, in some
circumstances, have directory rather than mandatory connotation but
submitted that such a connotation applies only to rules of court and not to
constitutional or statutory provisions. He relied on
Katto
v C.B.N. (1991) 9 N.W.L.R. (Part 214) 126 at 147.
With respect, I do not think that in
Katto
v C.B.N.
this court made any distinction in the interpretation of the word "Shall"
used in the rules of court on the one hand and statutes and the constitution
on the other. Although the court was faced with the meaning of the word
"Shall" in Order 3 Rule 2(1) of the
Court of Appeal Rules, it merely restated the general principle in
construing the word in statutes. At page 147 of the report this court, per
Akpata J.S.C had
this to say:
"It is true that by Order 3 Rules 2(1) an appellant "shall state also the
exact nature of the relief sought." The use of the word "shall" tends to
give the impression that it is mandatory or imperative to specify the exact
nature of the relief sought. Generally the term "shall" is a word of command
and donates obligation and gives no room to discretion. It imposes a duty.
The term is however sometimes construed as merely permissive or directory
to carry out the legislative intention, particularly in cases where
its being construed in mandatory sense will
bestow no right or benefit to anyone. When construed as being permissive or
directory it carries the same meaning as the word "May"
(emphasis mine)
The underlining
above is only a re-emphasis of the generally accepted principle of
interpretation of statute that there is no laid down rule as to whether the
word "shall" used in a statute carries mandatory or merely directory
connotation and that its real purport depends by and large on the particular
context in which it is used. See also
Patrick Anigala
Okpala v The Director-general of National
Commission for Museums & Monuments & Ors (1996) 4 N.W.L.R. (Part 444) 585.
The learned senior counsel for the respondent/applicant also accepted this
principle and relied on
Alhaji
Oloyede Ishola v
Memude Ajibode
(1994) 6 N.W.L.R. (Part 352) 506 where this court restated the above
principle in ascribing meaning to the word "shall" on
Section 238 of the 1979 Constitution.
At page 598 the court per Iguh
J.S.C said:
"I have given the above submissions some anxious consideration and I
entirely agree with the learned amicus curiae
that the word "shall" in
Section 238 of the Constitution is used in a directory or permissive
context and not in a mandatory sense..."
See also
Dr. Tunde
Bamgboye v
There is yet
another aspect of the principle of the interpretation of statutes. Where in
a statute the legislature has expressed no clear intention as to whether a
particular provision is mandatory or merely permissive the court has a duty
to impute to the legislature that intention which is most probable and most
consistent with reason. See the opinion of the learned author in the book on
the Interpretation of Statutes by
Maxwell 1991 Edition at page 340 where he said:
"In all cases, however, the question as to the legislature intending a
provision to be imperative or directory
......
is to be determined by weighing the consequences of either view. Where the
legislature has expressed no intention on the point, that intension should
be imputed to it which is most consistent with reason, and due regard to
convenience and justice."
In the light of
the above discussion, should the word "shall" in the proviso to
Section 234 of the 1999 Constitution
be construed to carry mandatory intention requiring a seven man panel of
the court whenever an appeal involves matters coming within the provisions
of Section 233(2)(b) and (c) of this
Constitution? For the purpose of resolving this question it is necessary
to examine the matters that properly come within the provisions of
Section 233(2) (b) and (c). On
this question, I agree with learned counsel for the appellant/respondent
that there is hardly any appeal that does not either involve the
interpretation or application of the constitution or allege breaches or
likely breaches of chapter IV of the constitution.
There is, for
instance, hardly any suit involving master and servant relationship that
does not allege some breaches of the servant's fundamental rights under the
constitution. All criminal appeals necessarily involve the individual's
rights to life and liberty under chapter IV of the constitution. All
appeals, whether civil or criminal, which allege lack of or improper
evaluation implicitly allege violation or likely violation of the principles
of fair hearing under chapter IV of the constitution. Appeals emanating from
applications for bail, amendments, stay of execution and stay of proceedings
pending appeal all necessarily involve complaints of breaches or likely
breaches of the constitution. Similarly there is rarely any appeal from
applications for setting aside judgments in default of
defence or for relisting a suit or appeal dismissed or struck out for
want of prosecution that does not raise complaints about violation of the
constitution. And by its very nature every application for the enforcement
of the individual's fundamental rights and appeal emanating there from fall
within the definition of questions under
Section 233(2) and (c) of the
Constitution.
I am persuaded by
the argument of learned counsel for the appellant/respondent that if the
construction urged by learned senior counsel for the respondent/applicant is
upheld, this court would end up sitting in a panel of seven in practically
every case. That would make a panel of seven of the Supreme Court the rule
rather than the exception and I think that would be the very antithesis of
the provisions of Section 234 of the
Constitution. In my view such a result could not have been intended by
the framers of the constitution. As far as I can understand it, a proviso in
an enactment is simply an exception to or some qualification of the first or
enacting part. In the English case of
"It is said that where there is a proviso, the former part, which is
described as the enacting part must be construed without reference to the
proviso.
No doubt there may be cases in
which the first part is so clear and unambiguous as not to admit in regard
to the matters which are there clear any reference to any other part of the
section; the proviso may simply be an exception out of what is clearly
defined in the first part, or it may be some qualification not inconsistent
with what is expressed in the first part .........."
I would like to
adopt the above description of a proviso in its entirety. If the proposition
of learned senior counsel for the respondent/applicant is accepted the
provision of Section 234 of the
Constitution would be reversed making a seven man panel of the Supreme
Court the rule rather than the exception. The result of such a construction
would be outright inconvenience and even inconsistent with the first or
enacting part of Section 234 of the
Constitution.
In these
circumstances I prefer a construction of the word "Shall" in the proviso to
Section 234 of the Constitution
to be "May", conveying a directory or permissive connotation and having room
for some discretion as to when to constitute a panel of seven justices in
appeals with respect to questions under
Section 233(2)(b)
and (c) of the Constitution.
I have no doubt
that this appeal which arose from the defendant/respondent/applicant's
challenge of the jurisdiction of the Lagos State High Court by virtue of the
provisions of Section 251(l)(d) of
the Constitution comes within the purview of
Section 233(2)(b) of the Constitution.
But having regard to the fact that the self same issue has been decided by
this court in some previous decisions, I hold that the court was at liberty
to hear the appeal with the normal and regular panel of five justices on
6/2/2006. And I hold therefore that the subsequent judgment on 5/5/2006 is
not unconstitutional.
For the foregoing
reasons, this application is refused and is accordingly dismissed. I assess
the costs of this application at
Ruling
delivered by
Sylvester
Umaru Onu
J.S.C
I agree entirely.
Ruling delivered
by
Aloysius
Iyorgyer Katsina-Alu
J.S.C
I have read in
draft the judgment delivered by my learned brother Tabai J.S.C in this
appeal. I agree with it and, for the reasons he has given I also find no
merit whatsoever in the application which I hereby dismiss. I wish only to
stress that the self same issue has been decided by this court in some
previous cases. I hold that this court is under no obligation to constitute
a panel of 7 justices each time the issue arises. This application, in the
circumstances of this case, is unjustified and absolutely uncalled for. I
dismiss it with
Ruling delivered
by
Dahiru
Musdapher J.S.C
I have read
before now the ruling of my Lord Tabai just delivered in this matter with
which I entirely agree. In the aforesaid ruling his Lordship has admirably
and comprehensively discussed all the relevant and pertinent issues. I
see no need to repeat them. I adopt his
reasonings as mine and I refuse the application
in its entirety and accordingly dismiss it. I abide by the order for costs
contained in the aforesaid ruling.
Ruling delivered
by
Walter Samuel
Nkanu Onnoghen.
J.S.C.
On the 11th
day of October 2006, the respondent/applicant filed a motion in this court
praying for the following reliefs:
"1.
Setting aside the judgment of this
honourable
court delivered in this appeal on Friday 5tn May, 2006.
2.
Rehearing of the appeal by a reconstituted panel of justices of this
honourable court consisting of 7 (seven)
honourable
justices."
The grounds on
which the reliefs are sought are
stated as follows:-
"(i)
The appeal giving rise to the said judgment relates to a decision of
the Court of Appeal in a civil matter on a question as to the interpretation
and application of Section 251(1) (a) of the Constitution of the Federal
Republic of Nigeria; 1999 ("the
1999 constitution")
(ii)
By virtue of Section 234 of the 1999 Constitution appeals
requiring the interpretation and application of the constitution by this
honourable court shall be heard by 7 (seven)
justices of this Court.
(iii)
The panel of the Supreme Court that heard this appeal on 6th
February, 2006 was made up of only 5 (five) learned justices.
(iv)
The
honourable court was not properly constituted to
hear the appeal and this lacked the jurisdiction to do so or to deliver a
judgment therein.
(v)
After the hearing of the appeal but prior to the delivery of judgment
of this honourable court the respondent/
applicant brought an application dated and filed on 17th March
2006, seeking a re-hearing of the appeal by a reconstituted 7 (seven) man
panel of learned justices of this honourable
court.
(vi)
The
application referred to in paragraph 5 above was not heard before judgment
was delivered and remains pending.
(vii)
The delivery of the court's judgment without hearing the pending application
amounted to a determination and refusal of the said application without
granting the
Respondent a fair hearing or any hearing at all
contrary to Section 36 of the 1999 Constitution.
(viii) The
judgment of this honourable court delivered on 5th
May 2006 is a nullity being one in which the appeal was heard without the
fulfillment of a condition precedent to the exercise of jurisdiction and
which also violates the principles of fair-hearing.
(ix)
This honourable court has the
jurisdiction to set aside its own judgment where it is found to be a
nullity.
(x)
Jurisdiction being a sine qua non for the existence of the power to
adjudicate can be raised at any time."
The application
is supported by an affidavit of 14 paragraphs on which the applicant relied
in moving the court.
The facts of the
case include the following:
Sometime in 1998
the present respondent (to the motion) instituted suit No.
FHC/L/CS/1076/98 at the Federal High Court, Lagos claiming the sum of
In relation to
the claim, the respondent/applicant, as defendant to the action, filed a
notice of preliminary objection dated 22/2/99 by which the applicant
contended that the Federal High Court lacked the jurisdiction to entertain
the claim. The objection was sustained as a result of which the Federal High
Court made a consequential order transferring the action to the Lagos State
High Court pursuant to Section 22(2)
of the Federal High court Act
and Order 8 of the
Federal High Court (Civil Procedure) Rules, 1999.
Consequently, the respondent's suit was registered at the Lagos State
High Court as suit No
LD/1677/99.
However, upon the
said registration of the claim, the applicant filed yet another notice of
preliminary objection challenging the jurisdiction of the Lagos State High
court on the ground that the Federal High Court, which it had earlier
contended successfully not to have the requisite jurisdiction, had exclusive
jurisdiction to entertain the respondent's claim - see pages 8 to 10 of the
record to appeal. The notice of preliminary objection was heard and
dismissed by the
On the 16/9/02
the Court of Appeal delivered its judgment holding that the
From the
applicant's written address or argument filed on 30/1/2007 the issue for
determination in this application is:-
"Whether given the circumstances of this case the Supreme Court ought to set
aside its judgment delivered on 5th May, 2006 and re-hear the
appeal."
It is the
submission of learned senior counsel for the applicant that this court has
the jurisdiction inherent in it, to set aside its judgments where:
(a)
The decision is a nullity;
(b)
It is obvious that the court was misled into giving the judgment
under a mistaken belief that the parties consented to it; and,
(c)
Where the judgment has been obtained by fraud of one of the parties
practiced on the court, relying on
Alao
v ACB (2000) 9 NWLR (pt. 672) 264 at 283; Chime
v Ude (1996) 7
nwlr
(pt. 461) 379 at
414;
Ogbu v Urum (1981)
vol. 2 NSCC 81 at 88;
Sken
Consult v Ukey (1981) vol. 12 NSCC 1 at 16 -
17;
Igwe v
Kalu (2002) 14 NWLR (pt 787) 435 at 435
- 455; Obimonure v
Erinosho (1966) ANLR 245 at
247 - 248.
Submitting
further, learned senior counsel stated that the primary reason why the
judgment should be set aside is because it is a nullity in that it suffers
from a fundamental vice; relying on the case of
General & Aviation Services Ltd v
Thahal (2004) 10 NWLR
(pt. 880) 50 at 80; Okafor v A-G of
Anambra State (1991) 6 NWLR (pt. 200) 659 at 678;
that the fundamental vice constituting the ground why the judgment should be
set aside include the lack of jurisdiction in this Court and denial of
applicant's right of fair hearing as constitutionally guaranteed; that the
considerations for the determination as to whether a court is with
jurisdiction to entertain a matter are as stated or laid down in the case of
Madukolu
v Nkemdilim (1962) 1 Ail NLR (pt. 4) 587 and
Western Steel works Ltd v Iron and steel Workers Union (1986)
3NWLR (pt. 30) 617 at 627; that this court
was not properly constituted when it heard the appeal and delivered the
judgment sought to be set aside in that instead of seven members of the
court sitting to determine the appeal as provided for under the proviso to
Section 234 of the Constitution of
the Federal Republic of Nigeria, 1999 (hereinafter called/referred to as
"the 1999 Constitution"),
only five members of the court sat, heard and determined the
appeal particularly as the issues in the appeal called for the
interpretation or application of the provisions of the 1999 Constitution;
that the provisions of Sections
233(2) and 234 of the 1999 Constitution are very clear to the effect
that it is in all cases where an appeal raises a constitutional issue that
seven justices must be empanelled to hear and determine same since the word
"shall" as used in the proviso to
Section 234 of the 1999 Constitution
makes the exercise mandatory, not permissive or directory; that the
constitutional issues that arose for interpretation in the appeal are not
settled issues as may warrant constituting a panel of five justices only as
the gravamen of the appeal lies in the issue as to whether “a
financial institution” as used and contemplated in
Section 251(i)
(d) of the 1999 Constitution is a bank.
Arguing in the
alternative, learned senior counsel submitted that assuming without
conceding that the constitutional provision in issue had been settled in the
case of FMBN
v NDIC (1999) 2 NWLR (pt. 591) 333 and that this fact might have
obviated the need to empanel a full court of seven justices, such a full
court should still be empanelled to hear the appeal since applicant
"in the
appellants brief, the applicant
specifically applied
and urged the court to depart from 2 (two) of the
earlier decisions namely FMBN v
NDIC (supra) and
Omisade
v Akande
(supra) as it is entitled to do under
order 6 Rule 5 (4) of
the Rules of this honourable
court.
This singular reason puts it beyond argument
that a panel of 7 (seven) justices ought to have been
empanelled, because it would be unusual for a panel
of 5 (five) justices of this honourable court to
review
and possibly depart from a decision arrived at by a
panel of 7 (seven) justices of the Court."
He urged the court to grant the application.
On his part,
learned counsel for the respondent submitted that if the court finds that
the court was properly constituted by the five justices who heard and
determined, the appeal then the applicant's earlier motion filed on 12/3/06
seeking an order for re-hearing of the appeal by seven justices before
delivery of judgment on 5/5/06 would be rendered academic; that the real
issues in the appeal are not what the applicant formulated in the brief
earlier referred to by learned senior counsel for the applicant which issues
have no relevance having regard to the three grounds of appeal contained in
the amended notice of appeal, exhibit "TAI" as it is trite law that in order
to identify or determine the issue(s) for determination in an appeal, the
proper process is to examine the grounds of appeal; that the grounds of
appeal did not call for interpretation of the constitutional provision but
complains that though the decision of this court in the case of
FMBN
v NDIC (supra) was cited and relied upon in the court of appeal
that court failed to rely on same in coming to its decision in the matter;
that Section 251 (1) (d) of the 1999
Constitution had been expressly interpreted by the full court in the
case of
fmbn v
ndic
(supra) which interpretation was affirmed by the court in the case of
ndic
v Okem Enterprises Ltd (2004) 10
nwlr (pt. 880) 107 and
therefore no longer novel or recondite and as such the court was properly
constituted when it heard and determined the appeal by a panel of five
justices; that learned senior counsel for the appellant has not contended
that the decision of the court would have been different if the full court
had sat on the appeal.
Learned Counsel
further submitted that the provisions of
Section 234 of the 1999 Constitution
are directory, not mandatory as his learned friend had submitted
particularly as the interpretation given to the section by counsel for the
applicant would make the section unworkable, unrealistic and unwieldy; that
the "intention of the makers of
Section 234 of the 1999 Constitution was that questions as to the
interpretation or application of the Constitution (Section 233 (2) (b))
or questions as to the breach of any of the provisions of chapter IV of the
Constitution (Section 233(2) (c)) that are of very serious substance
or complexity or sensitivity, or of significant legal or public interest, or
that involves moral or landmark issues of law may be heard by the Supreme
Court constituted of seven (7) justices ....."; that the
provisions of the constitution must be read together as a whole in order to
determine the object of the provision, which, learned counsel submitted, is
to ensure smooth running of the judicial system in the dispensation of
justice.
On the invitation
of the applicant to the court to depart from its decisions in
FMBN v. NDIC
(supra) and
Omisade v
Akande (supra) thereby making it necessary
for the full court to sit and conduct the business, learned counsel
submitted that the invitation to depart from an earlier decision of the
court was not one of the grounds stated in the earlier application for
re-hearing of the appeal dated 16th March, 2006 or the instant
application dated 11/10/06 He
urged the
court to dismiss the
application.
It is settled law
that issues for determination must be distilled from the grounds of appeal
which grounds must be complaints against the ratio decidendi in the judgment
appealed against, it is therefore clear that since issues for determination
are distilled from the ground(s) of appeal, there must exist a valid notice
and grounds of appeal from which the issues can be formulated, in the
instant case, the respondent applicant did not cross appeal against the
judgment of the court of appeal, only the appellant/respondent appealed
against that judgment, it is clear from the amended notice of appeal filed
that only three grounds of appeal were raised against the judgment of the
Court of Appeal out of which two issues were formulated by learned counsel
for the appellant for determination in the appellant's brief of argument
filed on 28/10/02.
For ease of
reference and clarity of the complaints therein, I reproduce the amended
grounds of appeal hereunder:
"Ground one
The Court of Appeal erred when it held that the Federal High Court (as
opposed to the Lagos State High Court) has exclusive jurisdiction to
entertain the Appellant's claim against the Respondent under Section
251(1) (d) of the 1999 constitution and that consequently, the proviso
to the said section cannot sustain the Appellant's claim against the
Respondent.
Particular of errors:
a.
The subject matter of this action is not connected with or pertaining
to banking, banks or other financial institutions.
b.
The Court of Appeal failed to properly consider and follow the
binding decision of the Supreme Court of Nigeria in Federal
Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation (1999) 2
NWLR (pt. 591) 323.
c.
The word "bank", for the purposes of Section 251(1) (d) of the
1999 Constitution, as defined by the Supreme Court of Nigeria in the
aforesaid case, includes discount houses such as the appellant.
d.
The Court of Appeal did not properly consider the provision of
Section 29(a) of the Failed Banks (Recovery of Debts) and Financial
Malpractices in Banks Decree no.
18 of 1994
which defined and created two different categories of banks.
e.
There is nothing in Decree No 18 of 1994 which
expressly provides or suggests that the meaning of the word "bank" as
defined in the decree was specifically "widened" or "expanded" in the
aforesaid Supreme Court decision as held by the Court of Appeal.
f.
The Court of Appeal failed to properly consider the appellant's
status as a bank by virtue of Section 61 of the Banks and other
Financial institutions Decree (BOFID) of 1991
based on the aforesaid Supreme Court decision.
g.
The Court of Appeal did not even consider any of the appellant's
submission on its status as a bank by virtue of Section 15(1) of the
h.
Contrary to the finding of the Court of Appeal, the Supreme Court
relied on the definition of "bank" in Decree No.
18 of 1994 without limiting its reliance on that definition to
the purpose which Decree 18 was meant to serve.
i.
The subject matter and issues which were formulated for determination
by the Supreme Court in fmbn
v ndic
(supra) did not having anything to do with financial malpractices in
a failed bank as held by the Court of Appeal, yet the Supreme Court relied
on the Failed Banks Decree.
j.
In FMBN v NDIC (supra), the Supreme Court had already defined
"bank" to mean an organization that provides financial service (such as the
appellant) even before reference was ever-made to Section 29 of the
Failed Banks Decree.
k.
Sections 5(1)(a), 15 and 20 of the NDIC
Decree of 1988 cumulatively recognize that the deposit
liabilities of the appellant must be insured along with the deposit
liabilities of banking institutions within the banking system in Nigeria.
l.
The applicant is recognized
by Nigerian law as being part and parcel of the banking system in
m.
The Failed Bank Decree does not contain any provision of definition
section which restricts the application of the definition of "bank"
contained in Section 29 of that Decree as urged by the respondent and
upheld by the court of Appeal.
n.
The Court of Appeal also failed to consider all the other judicial
reasons which the court of first instance used to justify its finding that
the
Ground two
The Court of Appeal erred and acted without jurisdiction when it overruled
the decision of the Lagos High Court dated 12/1/01 and consequently held
that the Federal High Court has exclusive jurisdiction to entertain the
appellant's claim against the respondent in this action whereas the second
or latter of the two judicial reasons relied upon by the Lagos High Court in
support or justification of the overruled decision of 12/1/01 remains valid,
subsisting and binding on the parties herein and the Court of Appeal up till
date (having not been appealed against) and the Court of Appeal did not
consider, reverse or overturn that second judicial reason relied upon in the
decision of the Lagos High Court.
Particulars of error:
a.
In the ruling
delivered in this action on 12/1/01, the Lagos High Court affirmed that it
had jurisdiction to entertain the appellant's claim against the respondent.
b.
The
c.
The first judicial reason was the Lagos High Court's finding that the
appellant could be "subsumed d as a
bank of same sort", and in
making that finding,
the Lagos High court relied on the decision of the Supreme Court in
fmbn v NDIC
(supra).
d.
The second judicial reason was the Lagos High Court's examination of
the "intent" of the
makers of Section 251(1)(d) of the 1999 Constitution, and its
consequent finding that, apart from the first reason stated above, the Lagos
High Court also had jurisdiction to entertain this action because the
subject matter of this action does not touch or concern
government's fiscal policy or
measures which is what Section 251(l)(d) seeks to vest
the Federal High Court with exclusive jurisdiction over.
e.
The second finding or reason which the Lagos High Court relied upon
in affirming its jurisdiction in this action was not, and still has not been
appealed against by the respondent.
f.
The second finding of the Lagos High Court remains subsisting, valid
and binding upon the parties herein and the Court of Appeal as well as the
Supreme Court.
g.
it is trite that the decision of a court can be sustained or
supported by several judicial reasons or by just one judicial reason.
h.
it is also settled law that even when one of two or more judicial
reasons given by a lower court in support or justification of its finding is
overruled or set aside by an appellate court, the decision of the lower
court would still be sustained because of the other judicial reason(s) which
has not been overruled or set aside by the appellate court.
i.
The second judicial reason given by the Lagos High Court in support
or justification of its affirmation of its jurisdiction remains unappealed
against and subsists up till date.
j.
The Court of Appeal had no jurisdiction or power to overrule or set
aside the finding made by the Lagos High court in the ruling of 12/1/01 when
one of the two judicial reasons
(upon which the ruling was founded) remained subsisting, valid
and binding up till date.
In the alternative:
iii.
An order transferring this action from the Lagos State High court
to the Federal High court for hearing and determination."
From the above
grounds of appeal, the following issues were formulated for
determination
by learned
counsel for the appellant, to wit:-
"3.07
Did the Court of Appeal
have
jurisdiction to
overrule the decision of the Lagos High Court dated 12/1/01, and
consequently hold that it is the Federal High Court that is vested with
exclusive jurisdiction to entertain the appellant's claim to this action
against the respondent whereas the second or latter of the two reasons or
ratio which the Lagos High Court relied upon in support of its said decision
was not appealed against by the respondent, and the Court of Appeal too did
not consider, reverse or overturn the second reason or ratio relied upon in
the overturned decision of the Lagos High Court?
3.02 Does the
appellant qualify to be described as a bank within the meaning of Section
25l(d)(d) of the 1999 Constitution in the
manner that would vest the Lagos High Court with jurisdiction to entertain
the appellant's claim against the respondent in this action as was held by
the Lagos High Court in its decision of 12/1/01?"
On the other
hand, learned senior counsel for the respondent/applicant in the
respondent's brief of argument filed in the appeal on the 9/8/03 formulated
the following two issues for determination at page 2 of the said brief:-
"(i)
whether the Court of Appeal
was correct when it held that the
(ii)
Whether the Court of Appeal was correct when it held that the High
Court of Lagos state does not have the power to transfer a matter in respect
of which it lacks jurisdiction to the Federal High Court."
There is no
doubt, and I hereby hold that the issues as formulated for determination by
both counsel are the issues distillable from the three amended grounds of
appeal earlier reproduced in this judgment.
It is not in
doubt that ground I of the amended grounds of appeal queried the exclusive
jurisdiction of the Federal High court to entertain appellant's claim by
virtue of the provisions of Section
251(1) (d) of the 1999 Constitution but both counsel agreed that the
said Section 251(1) (d) of the 1999
Constitution had already been interpreted many times by this court
sitting as a full court in the case of
Federal Mortgage Bank of Nigeria
(FMBN) v Nigeria Deposit Insurance Corporation (NDIC) (supra) and
Nigeria Deposit Insurance Corporation
v Okem Enterprises Ltd (supra). When one
looks at particular (b) of ground 1 of the amended grounds of appeal (supra)
it is clear that the complaint does not call for fresh interpretation of
Section 251(1) (d) of the 1999
Constitution but that the Court of Appeal was in error in failing to
follow the interpretation given to the said
Section 251(1) (d) of the 1999
Constitution by the supreme court in the case of
fmbn v
ndic
(supra) which decision was binding on the court.
Turning now to
Section 234 of the 1999 Constitution
which provides as follows:-
"For the purpose of exercising any jurisdiction conferred upon it by this
Constitution or any law, the Supreme court shall be duly constituted if it
consists of not less than five justices of the Supreme Court:
Provided that where the Supreme Court is sitting to consider an appeal
brought under Section 233(2) (b) or (c) of this Constitution, or to
exercise its original jurisdiction in accordance with Section 232 of this
Constitution, the court shall be constituted by seven justices."
As can be seen
from the above provisions, the word
"shall" is used twice, once in the main
Section 234 and the other in the
proviso to the said Section 234 both
of the 1999 Constitution. From the submissions of learned senior counsel
for the applicant it is clear that he is of the view that whereas the word
"shall" as used in
the first limb of Section 234 of the
1999 Constitution is directory or permissive as to the constitution of
the Supreme Court by five justices, the same word is mandatory as used in
the second limb or proviso to
Section 234 of the said 1999
Constitution making it mandatory for seven justices of the court to sit
in the circumstances described therein.
It is settled law
that when a court is faced with the interpretation of a constitutional
provision, the entire provision must be read together as a whole so as to
determine the object of that provision, secondly, it is settled principle of
law that where a court is faced with alternatives in the course of
interpreting the constitution or statute, the alternative construction that
is consistent with smooth running of the system shall prevail as held in
Tukur
v Government of Gongola State (1989) 14
nwlr (pt.117)
517 at 579:
"I
must remember that this court has
said it several times that the provisions of the constitution ought to be
read and interpreted as a whole in that related sections must be read
together .....
Finally, I must approach the matter from the view point that since the
decision of this court in Nafiu
Rabiu v The State (1981) 2 NCLR
293, this court has opted for the principle of construction often
expressed in the maxim
ut res magis
valeat quam
pereat.
This means that even if alternative constructions are equally open, I shall
opt for that alternative which is to be consistent with the smooth working
of the system, which the constitution, read as a whole, has set out to
regulate, and so the alternative which will disrupt the smooth development
of the system is to be rejected."
In the instant
case, two interpretations of the word
"shall" have been offered by both counsel
each in support of their contending positions. This court is therefore faced
with the two alternatives - either to
interprete
the word
"shall" as used in the context as compulsory, mandatory or
that it is directory or permissive, it is settled law that where the words
used in a statute or constitution are clear and unambiguous, there is
nothing for the court to interpret, the duty of the court in such a
situation being simply to give the words their ordinary meaning. Having
regard to the context in which the word
"shall” is used in Section 234
of the 1999 constitution, it is my considered view that the word is
permissive or directory not mandatory, in other words, the decision to
empanel either 5 or 7 justices to hear a particular case depends on the
nature of the case, its complexity, significance, public or legal interest
or novelty, as submitted by learned counsel for the respondent, in that
case, it is not always that an application of any provision of the
constitution is required that a seven member justices must be empanelled to
hear the matter. I hold the view that in such a situation a panel of five
justices can and do legally constitute the court for the purpose of
determining the matter, in the instant case, as can be seen from the grounds
of appeal and the issues formulated by both counsel for determination that
the interpretation or construction of
Section 251(1) (d) of the 1999 Constitution was not in issue in the
appeal at all.
Secondly, the
full court of this court had earlier interpreted the said provisions of
Section 251(1) (d) of the 1999
Constitution in the two cases earlier referred to in this judgment and
what the appellant in the appeal was complaining about is the failure of the
Court of Appeal to apply the decision of the full court on the said
Section 251 (1) (d) of the 1999
constitution as decided in the case
FMBN v NDIC
(supra); not a call for fresh interpretation of the said section.
That being the case I hold the view that a panel of five justices of this
court can validly and legally determine the appeal by applying the decision
of the full court in respect of
Section 251(1)(d) of the 1999 Constitution to
the facts of the instant case. To hold otherwise would not be in the best
interest of the smooth running of the Supreme Court where the justices, as
legal practitioners or judges might have participated in some of the cases
either in the trial or appellate courts prior to the final appeal to the
Supreme Court which necessarily disqualifies such justices from
participating in the hearing of the particular appeal in the interest of the
rules of natural justice. That factor necessarily leaves lesser justices
available to constitute the panels and having regard to the volume of
appeals coming to the Supreme Court would result in inordinate delays or a
complete breakdown of the system, in any event, what is the sense in
constituting a panel of seven justices just to apply the decision of the
full court which interpreted a provision of the constitution when there is
no issue before the court calling for a departure from the earlier decision,
in the instant case, there is no issue before the court calling on this
court to depart from the decision of this court in the two earlier decisions
interpreting Section 251(1)(d) of the
1999 Constitution and I further hold the view that the allegation of the
applicant that such an issue exists is not borne out of the grounds of
appeal and the issues formulated there from for determination - such an
alleged issue is a make belief by the applicant for the purpose of causing
as much further delay as possible, aimed at frustrating the respondent.
I hold the
further view that having resolved the issue as to the competence of the
panel of five justices that heard the appeal in question in
favour of
the respondent, it follows that the sub issue of fair hearing arising from
the motion calling on the court to re-hear the appeal by a panel of seven
justices is thereby rendered academic. To hold that the word
"shall" as used in the context of
Section 234 of the 1999 Constitution
is mandatory means that even if an appeal is against the refusal of the
lower court to grant bail, this court must empanel a full court to determine
the matter as the same would fall within the provisions of
Section 233(2) (c) of the 1999
Constitution.
We should not
forget the fact that though the full compliments of the Supreme Court is 22
justices including the chief justice of
However, judging
from the antecedents of this case, which for nine years has not passed the
stage of pleadings at the trial court, I don't need to be a prophet to say
that the applicant is likely to find another reason for embarking on another
pilgrimage to the Supreme Court in another interlocutory appeal judging from
the fact that from the contentions of the applicant neither the Federal High
court nor the Lagos State High court is clothed with the requisite
jurisdiction to hear and determine the substantive matter. It may be it is
the
In conclusion, I
agree with my learned brother, Tabai,
J.S.C that the application is grossly without merit and is
accordingly dismissed with
Application
dismissed.
Ruling delivered
by
Ikechi
Francis Ogbuagu J.S.C.
I have had the
advantage of reading before now, the lead judgment/ruling of my learned
brother, Tabai, J.S.C, just delivered. I have no hesitation in agreeing that
this application stands dismissed. However, for purposes of emphasis, I will
only set out the reliefs sought in the application and the issue formulated
by each of the parties which is substantially the same although differently
couched and make my own contribution.
The reliefs
/prayers sought read as follows:
" 1.
Setting aside the judgment
of this honourable court delivered in this
appeal on Friday 5th May 2006.
2.
Rehearing of the appeal by
a reconstituted panel of justices of this honourable
court consisting of 7 (seven) honourable
justices".
In the written
address of the respondent/applicant, the lone issue formulated for
determination, reads thus:
"3.1
Whether given the circumstances of
this case the Supreme Court ought to set aside its judgment delivered on 5th
May 2006 and re-hear the appeal?."
The
appellant/respondent on its part, also formulated one (1) issue for
determination, namely,
"3.01
Whether or not the judgment delivered by the
Supreme Court in
this appeal on 5th May 2006 should be set aside and the appeal
re-heard?"
So, the one (1)
issue of the parties is very clear and unambiguous. In a number of decided
authorities of this court, the
general principles in setting aside the judgment of this
court, have been stated and re-stated. In other
words, yes, this court, can set aside its judgment, in
appropriate cases,
when certain things are shown, otherwise, the decision of this court, is
final. See the cases
of
Onwuka & 4 ors. v
Maduka & 4 ors, (2002) 9 SCNJ. 113 @ 121:
and
Okulate & 4
ors. v Awosanya & 2
ors. (2000) 1 SCNJ. 75.
(2000) 1 S.C. 107 (a),
112-113.
In the case of S.
N. Ibe
v. Peter Onuorah (1996) 12
SCNJ. 128,
the finality of the
decisions of this court pursuant to
Section 215 of the Constitution of the
It is therefore,
now firmly settled that judgments of this court,
cannot be reviewed. The
court has no power to overrule,
reverse or nullify its previous decisions whether
on questions of substantive or
procedural law. See the cases of
Adefulu
& 16 ors. v Chief Okulaja
& 6 ors. (1998) 5 NWLR (Pt.550) 435 @),
462; (1998) 4 SCNJ. 139
(a), 147
and
Owunari Long-John & Chief
Iboroma & 2 ors. v Chief
Blakk & 2 ors. (1998) 6 NWLR
(Pt.555) 524; (a), 546; (1998) 5 SCNJ. 68
@ 86.
I note that the
respondent/applicant in paragraph 4.1.1 of its written address, concedes
this firmly established principle and has stated rightly in my view, that
the court has inherent powers to set aside its judgment in a number of
circumstances which it also stated and cited and relied on some other
decided authorities In respect thereof i.e.
Alao
v. ACB Ltd, (supra);
Chime & anor.
v. Ude & ors. (1996) 7NWLR (Pt.461) 379 @414
(it is also reported in
(1996) 7 SCNJ. 81)
Ogbu v. Urum
(1981) Vol. 12 NSCC 81 @
88:
Sken consult
v.Ukey
(1981) Vol. 12 NSCC1 (a), 16-17; Chief lgwe &
ors. v.
Chief Kalu &
ors. (2002) 14 NWLR
(Pt.787) 435 (a),
435-455
(sic) (it is also reported in
(2002) 2 SCNJ. 126)
and
Obimonure v.
Erinosho (1966) ANLR 245 @ 247 -
248.
I will add some other cases in
which this court has re-stated the grounds
under which it will depart from and
overrule its previous decisions or its own judgment
set aside. See
Samuel Oke
v.
Lamidi Aiyedun
(1986) 4 S.C. 61:
Ukpe
Orewere & ors.
v.
Rev. Moses Abeigbe & ors. (1973) 1 All
NLR (Pt.II) 1
and
The
Attorney-General of the Federation v. Guardian Newspaper Ltd.
(1999) 5 SCNJ.
324 (a),
404
citing several other cases
therein.
The reason or
rationale behind this power was graphically or beautifully stated by
Oputa, J.S.C in the
case of
Adegoke Motors
Ltd. v.
Dr. Adesanya & anor.
(1989) 3 NWLR (Pt.109) 250
(a), 274: (1989) 5 SCNJ.
80
inter
alia, thus;
"
We
are final not because we are infallible, rather we are infallible because we
are final. Justices of this court are human beings, capable of erring. It
will certainly be shortsighted arrogance not to accept this obvious truth.
It is also true that this court can do
inestimable good through its
wise decisions. Similarly, the court can do
incalculable harm through
its mistakes. When therefore it appears to learned counsel that any decision
of this court has been given per
in curium, such
counsel should have the boldness and courage to ask that such decision shall
be over-ruled. This court
has the power to over-rule itself (and has done so in the past)
for it gladly accepts that it is
far better to admit an error than to preserve in error".
However, I note
that the applicant is not asking the full court or the court, to
overrule or depart from its
previous decisions. Rather, it is stated that the ground for seeking for the
setting aside of its said
judgment, is "that it is a nullity"
being, according to the applicant, "one of the circumstances in which
a court has the inherent powers to set aside its own decision". It then
posed the question "What makes the decision of a court a nullity?" It cited
and relied on the cases of
General & Aviation Services Ltd, v. Captain Thahal
(2004) 10 NWLR (Pt.880) 50 @
80 (it is also reported
in (2004) 4 SCNJ. 89)
and
Okafor v. Attorney-General Anambra
State (1991) 6 NWLR (Pt.200) 659 (a),
678 S.C. as to the
circumstances in which a judgment may be declared a nullity. It then
contends that the grounds upon which the said judgment of this court, is a
nullity, are:
"(1)
The
judgment was given without
jurisdiction (See grounds (i) — (iv) of
the applicants motion paper).
(2)
The applicant was denied
its constitutionally
guaranteed
fundamental right to fair hearing in the proceedings prior to the delivery
of the judgment. (See grounds (v) - (viii) on the applicant's motion
paper) ".
I note that
Section 251 (1) (d) of the
Constitution of the Federal Republic of Nigeria, 1999 (hereinafter
called "the Constitution"), had/has been interpreted and applied by this
court in the cases of Federal
Mortgate Bank of Nigeria
v. Nigeria Deposit Insurance
Corporation (1999) 2 NWLR (Pt.591) 333. (it
is also reported in (1999) 2
SCNJ. 57) and recently,
Nigeria Deposit Insurance
Corporation (Liquidator of Allied Bank of Nigeria PLC.)
v. Okem
Enterprises Ltd. (2004) 10 NWLR (Pt.880) 107 (it is also reported
in (2004) 4 S.C. (Pt.II)
77) cited and relied on in the appellant's/respondent's brief.
That section provides as follows:
"251 (1)
notwithstanding anything to the contrary contained in this constitution and
in addition to such other jurisdiction as may be conferred upon it by an Act
of the National Assembly, the
Federal High Court shall have and exercise jurisdiction to the exclusion of
any other court in civil causes and matters -
(d)
connected with or
pertaining to banking, banks,
other financial institutions, including any action between one
bank and another, any action by or against the Central Bank of Nigeria
arising from banking, foreign exchange, coinage, legal tender, bills of
exchange, letter of credit, promissory notes and other fiscal measures:
Provided that this paragraph
shall not apply
to any dispute between an
individual customer and his bank
in
respect of
transactions between the individual customer and the bank."
[the underlining mine]
So, it is no
longer a "novel or recondite"
issue or matter. What appears novel in my respectful view is the
present request or invitation by the applicant to give it perhaps, a third
interpretation by another constituted full court of seven (7) justices.
From the said
lone issue formulated by the applicant, there is in my respectful view, no
semblance of any issue relating to the full court, interpreting the said
section or its sub-section. Even if that were to be so, (which is not
conceded), that will be with respect, a gross misconception. So, if I may
humbly and respectfully ask the applicant and its learned senior advocate,
what is the full court of seven (7) justices going to
interprete
in this matter? What makes the said decision of the court of five (5)
justices, a nullity as respectfully I am not persuaded by the applicant's
said grounds. These questions are pertinent in my
respectful view because, firstly, the provisions in the said
Section 251 (1) (d) are clear and
unambiguous and the decisions of the said full court in the said two (2)
cases
FMBN v. NDIC
and NDIC v.
Okem Enterprises (supra)
subsist and are binding on
all courts including this court. Secondly, I note that when the appeal filed
on 20th September, 2002
giving rise to the judgment of the panel of the five (5) justices
that is now being sought to be set-aside, was heard, there was no
application by the applicant to that court, raising an objection, that the
court, had no jurisdiction to entertain, hear and determine the said appeal
on the ground that it was not
properly constituted. After a considered ruling delivered on 5th
May, 2006, allowing the appeal and remitted the matter to the Lagos State
High Court, about five (5) months thereafter, the instant application was
filed. I have no hesitation in holding most respectfully, that this
application is brought in very bad
faith in order to frustrate the appellant/respondent. I will
expatiate later in this judgment. I however, hold that the said panel of
Five (5) justices was properly
constituted. I also hold with respect, that what came up for
determination before the said Lordships,
was never and could not be at all,
another interpretation of
Section 251 (I) (d) of the
Constitution. It could not have been as with respect, erroneously stated
in paragraph 4.2.6 of the written address of the learned SAN for the
applicant.
This should have
taken care of this application, but if I must, let me for purposes of
emphasis, deal even briefly, with the provisions of
Section 234 of the Constitution.
It is conceded in paragraph 4.3.1 page 9 of the applicant's written address,
that the provisions of Sections 233
(2) and 234(2) (b) are clear
and unambiguous. It is submitted that the word
"shall", is used in the
proviso to
Section 234 of the Constitution
which prescribes that this court, be constituted by seven (7) justices when
hearing appeals that entail the interpretation of application of the
provisions of the constitution. That when used in an enactment, it has been
held in innumerable cases, to, "as
a general rule", connote a command. That it is imperative and
mandatory and admits of no discretion. The cases
of Lt.
General
Bamaiyi (Rtd.) v. Attorney-General of the
Federation & ors.
(2001) 12 NWLR (Pt. 727) 468 (a), 497 (it is also reported in
(2001) 7 SCNJ. 346)
and Ogidee
(sic) v. The State (2005) 5 NWLR (Pt. 918) 286 (a), 327
(it is also reported in (2005) 1
S.C. (Pt.l) 98) are cited and relied
on. I note that at paragraph 4.3 thereof, the poser is,
"Is it every instance where
an appeal raises a constitutional issue that 7 (Seven) justices must
be empanelled)?"
I note that it is
conceded in the applicant's written address that the position of the law, is
that the word "shall",
may in some instances, have a
directory rather than
a mandatory connotation. It is however, surprisingly, submitted that this
connotation of the word,
"is
mostly applied for interpretation of the provisions of the rules of court
rather than for statutory provisions and much less constitutional
provisions".
The case of
Katto
v. Central Bank of
"For the purpose of exercising any jurisdiction conferred upon it by this
constitution or any law, the Supreme Court
shall be duly constituted if
it consists of not less than five
justices of the Supreme Court.
Provided that where the Supreme Court is sitting to consider an appeal
brought under Section 233 (2) (5)
or (c ) of this Constitution,
or to exercise its original jurisdiction in accordance with Section 232
of this Constitution the court
shall be constituted by seven justices".
It is submitted
in the applicant's written address at paragraph 4.3.7 that the word "shall"
in the first limb, may be directory
because, it prescribes a
minimum number of justices, but no
maximum number.
That this means that the number of justices could be
more than five (5). In other words, I take it by this submission,
that it means the panel of this court in the first limb,
is uncertain. That
it could be six, seven or more
and in effect, since the full compliment of this court, is
twenty-one (21) and as at present, there are fifteen (15) justices, the
entire fifteen justices, can sit at once or at the same time for purposes of
exercising jurisdiction conferred on it by
Section 233
(1) of the Constitution.
But that when it relates to the proviso, only seven (7) justices shall
constitute the panel no more no less.
I think the law
is settled that in the construction or interpretation of the constitution or
a statute, where the words are plain, clear and unambiguous, effect would be
given to them in their ordinary and natural meaning,
except where to do so, will result
in absurdity. See the cases of
Lawal
v, G. B. Ollivant (1972) 3 S.C. 124 (a),
137; Toriola
v. Williams (1982) 7 S.C. 27 (a), 46; Sunmonu v.
Oladokun (1996) 8 NWLR
(Pt.467) 387 (a), 419,
422 and recently,
Chief
Nnonye v. Anyichie
(2005) 1 SCNJ. 306
(a), 316; (2005)
1 S.C. (Pt. II) 96 (a),
102. In other words, where an interpretation
will result in defeating the object of the statute or constitution, the
court, would not lend its weight
to such an interpretation.
That the language of the statute or constitution,
must not be stretched, to defeat the aim of the statute or constitution.
See the case of
Ansaldo
Nig. Ltd, v. National Provident Fund Management Board (1991) 2 NWLR (Pt.l74)
392; (1991) 3 SCNJ. 22.
Thus, any interpretation which appears to defeat the intention of
the legislature, should and must be bye-passed in
favour of that which would further the object of the statute or
constitution. See the case of
Idehen
& 2 ors. v. Idehen & 2 ors. (1996) NWLR (Pt.198)
382 (a), 432-434
, citing
other cases therein; and (1991)
7 SCNJ.(Pt.II) 196.
In effect, and in
my respectful view, or speaking for myself, if the interpretation given by
the learned Senior Advocate for the Appellant, is upheld or adopted, by this
Court, it will render the said Section 234 first limb, to a complete
absurdity and
ridiculous in the extreme. So, in effect, except in a matter where the said
proviso applies or is applicable, the Panel of Justices in respect of the
said first limb will be fluid
and uncertain. With
the greatest respect, I do not think or subscribe to any suggestion that
this is the intention of the draftsmen or lawmakers. That is why in the case
of Barnes v. Jarvis (1953) 1 WLR
649 (a), 652,
Lord Goddard, C.J. stated that a certain
amount of commonsense,
must be applied in construing statutes ( I will add constitution) and
that the object of
the Act, (statute) has to be considered. As a matter of
fact, in the case
of
Olowu & 3 ors.
v. Abolore & anor.
(1993) 6 SCNJ. (Pt.1) 1
(a),
19
-
20, it was
stated/held, that it is one of the cardinal rules of interpretation, to
avoid judicial legislation and
avoid making nonsense of a statute and I also add (constitution) in
order not to defeat the
manifest intention of the legislature.
In the case of
Curtis v.
Stovin
(1889) 22
Q.B.D.
513,
Bowen, L.J., as to the duty of the court in the
construction of statutes, put the
position, as follows:
"The rules for the constructing of statute are very much like those of which
apply to the construction of other documents especially as regards one
crucial rule - viz that if possible, the -words
of the Act of parliament must be
construed so as to give a sensible meaning to them.
The words ought to be construed ut
res magis valeat
quant pereat".
[the underlining mine]
Note: The Latin
maxim, means that the construction, should ensure
that the intention of the
legislature, is not
frustrated or defeated.
Indeed and in
fact in the case of Savannah
Bank (Nig.) Ltd, v. Ajilo &
anor, (1989) 1 NWLR (Pt.97) 305 (a),
326; (1989) 1 SCNJ. 169,
Obaseki, J.S.C,
stated inter alia, as follows:
".......
where alternate construction are
equally open
that alternative
is to be chosen which would be
consistent with the smooth working of the system which the statute (I
will add the constitution) purports
to be regulating and that alternative
is to be rejected which will
introduce uncertainty, friction or confusion into the working of the system
- Shannon Realities Ltd,
v.
Ville de St. Michel (1924) Act.
185."
See also the case
of Esther
Osho & 2 ors. v.
Philips & 13 ors. (1972) 4 S.C. 259: (1972) 3 S.C.
(Reprint) 226. I therefore, with humility and respect,
hold that Section 234 of the
Constitution, is directory.
It is settled
that not every breach of a statutory provision, renders an act void and that
to be void, it must be not merely directory, but mandatory.
See
Odua
Investment Co. Ltd. v. Talabi (1997) 10
NWLR (Pt.523) 1; (1997) 7 SCNJ.
600 (a),
649 -
per
Ogundare, J.S.C (of
blessed memory). I have held that
Section 234 of the Constitution,
is directory and it is
conceded by the applicant that the first limb, is directory. Therefore,
since I have found as a fact and have held that the matter before this court
constituted of a panel of five (5) justices was not a question/issue of
interpretation once again of
Section 251 (1) (d) of the
Constitution, I therefore hold, that this application, is grossly
misconceived and it fails. This is because, that panel, was competent and
had the jurisdiction to hear and determine it as it did. The said appeal, in
my respectful view, arose from the applicant's challenge of the jurisdiction
of the Lagos High Court by virtue of
Section 251 (1) (d) which this Court (full court) had decided on at
least, two different decisions/occasions.
I had indicated
hereinabove, that I will come to my reason for stating or holding that this
application, is brought in very bad faith. From the records, when the
plaintiff/appellant instituted the action in the Federal High Court, the
applicant, through his learned counsel, raised a preliminary objection that
that court had no jurisdiction to entertain, hear and determine the matter.
The objection, was sustained/upheld. That court
then transferred the suit, to the Lagos State High Court for hearing and
determination. Soon after the transfer and the suit, was registered at the
said High Court of Lagos, the applicant, filed another preliminary objection
contending, that by virtue of Section
251 (1) (d) of the Constitution, the Lagos High Court has no
jurisdiction to entertain and hear the matter. It made a
U-turn so to say and
"ate its words" by insisting
that it was the very Federal High Court it had said lacked the
jurisdiction to entertain and hear the action that had/has jurisdiction to
entertain, hear and determine the suit. However, the said High Court
presided over by Alogba, J. in his ruling of 12th
January, 2005, rejected the contention and held that it/he had/has the
jurisdiction to entertain and hear the action.
The applicant
then appealed against the said ruling of Alogba,
J., to the Court of Appeal,
This court then
remitted the action to the
In fact, (I have
read the said judgment of 5th May, 2006), Pats-Acholonu,
J.S.C (of blessed memory) in apparent disgust,
had this to say in his lead judgment, inter alia, as follows:
".......
The transaction that gave rise to
the dispute was
a simple contract
which the parties readily understood what it was all about.
There is something seemingly
obscene and unethical in this case.
It is instructive that the respondent before it filed the preliminary
objection in the two courts seized of the matter at one time or the other,
did not file any pleadings. The respondent did not provide the High Court
with the opportunity to see or read its pleadings so as to have a proper
birds eye view of the real issues in controversy.
Therefore this court has not been enabled to know what in the financial
world or in law the respondent can be described as. It therefore boils down
to the case of a mere customer, which is a financial institution and a body
that accepts loans from individuals to do business. The respondent more or
less strove to convert the court to a vaudeville
of legal playhouse by using or relying and embarking on all sorts of
subtleties and merry-go-round proceedings to circumvent the real issue
before the High Court which is, whether or not the appellant's money is
locked up in the respondent's company.
The legal gymnastics employed by
the respondent to
have a roller coaster ride and its seeking to use the processes of the court
to put the appellant in the woods though ingenious it may appear,
is to my mind both unethical,
inconsiderate as it failed to respond to the appellant's case or attend
to the matter in issue. If the appellant cannot sue in the Federal High
Court and at the same time cannot equally sue
in
the
There comes a time in the difficult but challenging art or science of
adjudication and administration of justice when a court is faced with
consideration of pure justice, and of course abstract law that seeks to
shroud itself in concepts, dreariness and the theory of law. It is then that
a court should dig deep into its reservoir of knowledge of its forensic
arsenal borne out of experience and mete out justice that can easily be
understood and appreciated by the common man in the street and the
litigants. The courts are the products of the society. They are established
to solve and give remedies to people who complain of having been
shortchanged or wronged somehow. Therefore it should not allow undue
technicalities likely to wreak havoc in the other party's case to be
introduced in an otherwise situations that do not
admit of cloudiness or woolliness"
[the underlining mine]
Yet, in spite of
this "stricture", the
applicant, with the team of its lawyers/counsel, are at it again. It is most
unfortunate to say the
least. I say no more about this application. My answer to the said lone
issue of the parties is in the
negative.
In conclusion, I
had the privilege of reading before now, the lead Judgment of my learned
brother, Tabai, J.S.C. From the foregoing and his fuller reasons and
conclusion, I too, hold that the said judgment of this court by the panel of
five (5) justices was and is still,
constitutional. I too, dismiss the application which with
respect is unmeritorious. It is in fact in my respectful but firm view, an
abuse of the process of this court and this should not be encouraged by the
court. I abide by the consequential order in respect of costs although, but
for the rules of this court this appeal, should have attracted substantial
costs against the applicant. The sooner the said rules are urgently reviewed
by the C.J.N. the better.
Ruling delivered by
Ibrahim
Tanko Muhammad. J.S.C
My Learned
brother, Tabai, J.S.C, afforded me with a draft copy of the ruling just
delivered. I am in complete agreement with my brother Tabai, J.S.C in his
conclusion that the application is very unmeritorious which must be
dismissed.
The application
before this court contains the following reliefs:
“1.
Setting aside the judgment of this honourable
court delivered in this appeal on Friday 5th May, 2006
2.
Re-hearing of the appeal by a reconstituted panel of justices of this
honourable court consisting of 7 (seven)
honourable justices
And for such
further or other order(s) as this honourable
court may deem fit to make in the circumstances.”
The grounds upon
which the reliefs were premised are as follows:
“
i.
The appeal giving rise to
the said judgment relates to a decision of the Court of Appeal in a civil
matter on a question as to the interpretation and application of Section
251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999
("the 1999 Constitution")
ii
By virtue of Section 234 of the 1999 Constitution appeals
requiring the interpretation and application of the constitution by this
honourable court shall be heard by 7 (seven)
justices of this Court.
iii.
The panel of the Supreme Court that heard this appeal on 6th
February, 2006 was made up of only 5 (five) learned justices.
iv.
The honourable court was not properly
constituted to hear the appeal and thus lacked the jurisdiction to do so or
to deliver a judgment thereon.
v.
After the hearing of the appeal but prior to the delivery of judgment
of this honourable court the
respondent/applicant brought an application dated and filed on 17th
March, 2006, seeking a re-hearing of the appeal by a reconstituted 7 (seven)
man panel of learned justices of this honourable
court.
vi.
The application referred to in paragraph 5 above was not heard before
judgment was delivered and remains pending.
vii
The delivery of the
court's judgment without hearing the pending application amounted to a
determination and refusal of the said application without granting the
respondent a fair hearing or any hearing at all contrary to Section 36 of
the 1999 Constitution.
viii.
The judgment of this honourable court delivered
on 5th May, 2006 is a nullity being one in which the appeal was
heard without the fulfillment of a condition precedent to the exercise of
jurisdiction and which
a/so
violates the principles of
fair-hearing.
ix.
This honourable court has the
jurisdiction to set aside its own judgment where it is found to be a
nullity.
x.
Jurisdiction being a sine qua non for the existence of the
power to adjudicate can be raised at any time."
The motion was
moved by the learned senior advocate for the applicant Mr.
Akoni, on the 17th day of April,
2007, and replied by Mr. Ajayi on behalf of the
respondent. Written addresses in respect of the motion were earlier on filed
and exchanged by the parties with the applicant filing a reply on points of
law. The motion was supported by a 14 paragraph affidavit and an Exhibit.
The applicant's
counsel set out in his address one issue for determination. It reads as
follows:
"Whether given the circumstances of this case the Supreme Court ought to set
aside its judgment delivered on 5th May, 2006 and re-hear the
appeal."
The respondent on
its part set out the following issue for determination:
"Whether or not the judgment delivered by the Supreme Court in this appeal
on the 5th May, 2006 should be set aside and the appeal
re-heard?"
My learned
brother, in his leading ruling, has set out in a summary nature,
the submissions of the respective counsel.
I do not think I should repeat same.
It is a matter
well settled in this country that the Supreme Court generally, enjoys
finality of its decisions. Except for some clerical mistakes or accidental
slips or omissions, it seldom re-visits its decisions by way of review,
variation or setting aside. For instance, the court in the case of
Ibero
v Obioha (1994) 1 SCNJ 44, after it had
finally decided an appeal before it, the respondent in the appeal filed a
motion seeking amongst other things a review of the said judgment. One of
the grounds in support of his application challenged the jurisdiction of the
Supreme Court to pronounce on the correctness
vel
non of the decision of the divisional
officer's court, exhibit K. In dismissing the application, the unanimous
decision of the court held, per Belgore,
J.S.C (as he then was) (pages 52 -53) as
follows:
"The purpose of this application is clear, it is an appeal cloaked in the
guise of a motion. From the wordings of the motion and the grounds for
bringing it, it is manifestly clear that the validity of the judgment of
this court as given on
26th
February, 1993 is being
challenged .... Once the Supreme Court has
entered judgment in a case,
that decision is final and will remain so for ever. The law may in future be
amended to affect future issues on the same subject, but for case decided,
that is the end of the matter."
Order 8 Rule 16
of the Supreme Court Rules
(as amended in 1999) is very clear and unambiguous on the issue of
non-reviewing, reversal or setting aside of its earlier order or judgment.
It provides:
"16. The court
shall not review any judgment once given and delivered by it save to correct
any clerical mistake or some error arising from any accidental slip or
omission, or to vary the judgment or order so as to give effect to its
meaning or intention. A judgment or order shall not be varied when it
correctly represents what the court decided nor shall the operative and
substantive part of it be varied and a different form substituted."
That apart, the
Supreme Court as is the practice in other superior courts of record
possesses inherent power to set aside its judgment in appropriate cases.
Such cases are as follows:
i.
When the judgment is
obtained by fraud or deceit.
ii.
When the judgment is a nullity such as when the court itself was not
competent; or
iii.
When the court was misled into giving judgment under a mistaken
belief that the parties had consented to it; or
iv.
Where judgment was given in the absence of jurisdiction; or
v.
Where the procedure adopted was such as to deprive the decision or
judgment of the character of a legitimate adjudication
See generally:
Aloa v ACB Ltd
(2000) 9 NWLR (Pt.672)
264; Madukolu & Ors v
Nkemdilim (1962) 2 SCNLR 341;
Igwe v Kalu (2002)
14 NWLR (Pt.787) 435; Chime v Ude (1996) 7
NWLR (Pt.461) 379;
Ogbu v Urum (1981)
Vol
12 NSCC 81;
Sken Consult v. Ukey (1981) Vol. 12
NSCC 1; Obimonure v.
Erinosho (1966) ANLR,
245.
The applicant has
prayed this court to invoke its inherent jurisdiction to set aside its
earlier judgment of 5th May, 2006 as it did not fulfill a
condition precedent to the exercise of jurisdiction and rendered it a
nullity. It was submitted that this is one of the circumstances in which a
court has inherent powers to set aside its own decision. Learned SAN for the
applicant enumerated the circumstances in which a decision may be declared a
nullity. He stated further that what made the earlier judgment of this court
delivered on the 5th May, 2006 to be a
nullity are:
1.
the judgment was given without
jurisdiction (grounds I - IV) of the applicant's motion on notice;
2.
the applicant was denied its
constitutionally guaranteed fundamental right to fair hearing in the
proceedings prior to the delivery of the judgment, (grounds (v - viii) of
the motion on notice). It was the contention of learned SAN for the
applicant that the basis upon which the applicant contended that the said
judgment was delivered without jurisdiction is because this
honourable court was not properly constituted
having regard to the number of the members on the bench who heard and
determined the appeal contrary to the provision of
Section 234 of the Constitution of
the Federal Republic of Nigeria, 1999.
I have had a look
at the proceedings which led to the judgment delivered on the 5th
of May, 2006 and the judgment itself. I also had a look at the motion on
notice which was filed on 17th March, 2006. My findings are that:
(a)
the appeal on which the said judgment of 5th
May, 2006, was delivered was reserved for judgment on the 6th of
February, 2006.
(b)
A five man panel of the Supreme Court justices sat on the appeal and
came-up with a unanimous decision.
(c)
The effect of the judgment of 5th May, 2006 is that this
court allowed the appeal and remitted the matter to the Lagos High Court for
proper adjudication.
(d)
The motion on notice, which sought to arrest the delivery of the
judgment of 5th May, 2006, was filed on the 17th of
March, 2006, barely eleven days after judgment was reserved.
(e)
That according to the learned SAN for the applicant, it was on the
date of delivery of the judgment i.e. on the 5th day of May, 2006
that the learned counsel for the respondent/applicant brought to the
attention of the justices on that panel on the
existence of that motion filed on 17th
March, 2006.
(f)
That the panel of the Justices who sat to deliver the judgment
refused, rightly in my view, to hear and
determine the application before
delivering the judgment.
The contention of
learned SAN for the applicant is that the failure of the court to hear and
determine the application of 17th March, 2006 rendered the
judgment of 5th May, 2006 null and void. He relied on a number of
decided authorities including Mobil
(Nig.) Ltd. & Anor v.
Minikpo & Ors (2003) 18 NWLR (Pt.852) 346 at 413;
Amadi v. Thomas Aplin
& Co. Ltd. (1972)4 SC 228.
I commend the
learned SAN for citing plethora of cases on the issue of what confer
jurisdiction on a court of law. Perhaps what needs to be reiterated and in
order to remind the learned SAN for the applicant is that as at the time the
panel of this court sat to deliver the judgment of 5th May, 2006,
the learned Justices were of the correct impression, which I too believe
same to be so, that they had the jurisdiction to deliver that judgment. The
parties, the subject matter of dispute were all properly before the court.
None of the parties during the process of hearing the appeal objected to the
jurisdiction of the court. The panel in accordance with the requirement of
the constitution sat in the required number of five justices to consider the
appeal. (I shall come back to
the issue of Coram later in this judgment).
Again, although
it is the general principle of the law that all applications should be
disposed of before hearing of an appeal, it is clear, as well as admitted by
the applicant's, counsel that the application of 17th March, 2006
was filed when the appeal was already reserved for judgment. This to me was
a clever way of arresting the delivery of the judgment which was already
written and to be delivered on the very day the applicant wanted that motion
to be taken.
Learned SAN for
the applicant, I believe, knows it very well that courts
do not make orders in vain and they are meant to be obeyed. See:
NNSC Ltd. V. Alh.
Sabana
& Co. Ltd. (1988) 2 NWLR (Pt.74) 23. It was ordered on the 6th
day of February, 2006 that judgment would be delivered on 5th
May, 2006. Thus, unless there were exceptional circumstances which could
make the delivery of that judgment on that date impossible the court was
under a duty to deliver the judgment on the day announced in open court.
Thus, filing an application in between the date when judgment was reserved
and the date of delivery, which application had the effect of arresting the
delivery of that judgment cannot, in my view, be an
exceptional circumstances. I find it difficult to agree with the
learned SAN for the applicant that the judgment of 5th May, 2006
was delivered without jurisdiction.
On the issue of
the constitution of the panel of members that sat and decided the appeal on
which judgment of 5th May, 2006 was delivered, the learned SAN
for the appellant argued that it was unconstitutional for the 5 (five)
justices panel to hear the appeal on 6th February, 2006 and that
the subsequent judgment of 5th May, 2006 was for that reason null
and void.
Let me start by
setting out the provisions of Section
234 of the 1999 Constitution:
"234.
For the purpose of
exercising any jurisdiction conferred upon it by the constitution or any
law, the Supreme Court shall be duly constituted if it consists of not
less than five justices of the Supreme Court:
Provided that where the Supreme Court is sitting to consider an appeal
brought under Section 233 (2)(b) or (c) of this Constitution,
or to exercise its original jurisdiction in accordance with
Section 232 of this Constitution, the Court shall be
constituted by seven justices."
(underlining supplied for emphasis)
Thus, by law and
practice, it is not necessary to have the full compliment of
the justices of this court all sitting for the
court to be duly constituted to entertain appeals brought before it. A panel
of not less than five (5) justices will make the court duly constituted and
can hear and determine any matter brought to it in its appellate
jurisdiction. A panel of seven (7) justices will only be required
necessarily in some instances. (I shall come to this later).
The central issue
which arose for resolution before the panel that determined the appeal which
was heard on 6th February, 2006 was on the interpretation and
application of section 251 (1) (d) of the 1999 Constitution. This, according
to the learned SAN for the applicant, could only be entertained by a panel
of seven (7) Justices of this court.
I already have
set out earlier the provisions of section 234 of the 1999 Constitution. Let
me now take a look at section 233 of the same Constitution which deals with
appeals brought as of right:
"233
(2)
An appeal shall lie from decisions of the
Court of Appeal to the Supreme Court as of right in the following cases:
a)
..............
b)
Decisions in any civil or criminal proceedings, on questions as to
the interpretation or application of this Constitution
c)
Decisions in any civil or criminal proceedings on questions as to
whether any of the provisions of chapter iv of
this Constitution has been, is being or is likely to be, contravened in
relation to any person."
(underlining supplied for emphasis)
The provision to
section 234 of the Constitution relates to the interpretation or application
of these provisions in addition to the provisions of section 232 of the
Constitution. The requirement is that a panel consisting of seven (7)
Justices shall be constituted to hear any appeal relating to these
provisions.
Section 251 (i)
(d) of the Constitution falls under section 233 (2) (b) in the sense that it
is a section of the constitution whose interpretation or application is
sought. The interpretation of the word "shall" in an enactment does not
always connote mandatoriness. It often connotes
permissiveness or directory. Giving a community reading to
Section 234, the intention of the
legislature, as argued by learned counsel for the respondent, is that when
it comes to the interpretation or application of the constitution i.e.
Section 233 (2) (b) and (c) or
breach of chapter iv of the
Constitution, matters of complexity or sensitivity or of significant
legal or public interest or that which involves novel or landmark issues of
law may be heard by this court when it is constituted by seven (7) justices.
Other matters which are of normal occurrence and subjected to courts of law
including this court almost on daily basis,
should be treated by the ordinary panel constituted by five (5) justices of
this court. The interpretation and application of
Section 251 (i)-(d)
of the Constitution inclusive. In the case of
Adelekan
v.
"..... since the decision of this court in Nafiu
Rabiu v the State (1981) 2 NCLR 293, this
court has opted for the principle of construction often expressed in the
latin maxim ut
res mag is valeat
quam pereat. This means that even if
alternative constructions are equally open, I shall opt for that alternative
which is to be consistent with the smooth working of the system which the
constitution, read as a whole, has set out to regulate, and so the
alternative which will disrupt the smooth development of the system is to be
rejected."
Certainly, if
this court will throw itself into the straight jacket of attempting to form
a coram
of the full court of seven on almost every conceivable issue, including
those to be decided on same principles of law already decided by a lesser
number than the full court (i.e. the normal
coram of five justices)
which of course is permitted by the constitution, then I foresee difficulty
arising as the smooth running of the machinery of justice in this court may
be disrupted one day. My brother Tabai, J.S.C, has listed a number of
instances which will compel this court to sit in its full compliment in
almost every case. I agree with him totally that if that happens, then that
would make a panel of seven justices of the court to be the rule rather than
the exception. It is not the intention of the constitution to create a
situation for the courts which is difficult to operate. It is not the desire
of this court to unnecessarily overburden itself where alternative measures
will ameliorate the conduct of affairs for the court.
For these
and the fuller reasons of my brother, Tabai, J.S.C.
I too find this application very unmeritorious. I hereby dismiss the
application with
Counsel
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