On Monday, the10th day of March, 1986
Ayo Gabriel Irikefe. C.J.N.
The appellant in this case had leave within which to file his appeal out of time. He had 14 days within which to do but did not. He also got an order to argue the only constitutional point, namely, that the judgment appealed against had been delivered outside the mandatory period of 3 months - Ifezue v. Mbadugha. Upon objection being taken by learned counsel it became clear that the appellant had no properly pending appeal before us, as he had not filed his notice and grounds of appeal within the time stipulated. To this objection, there can be no answer.
However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out merely, we have decided to deem this as an application for leave to file the notice and grounds, again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the court below, that i5, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us. This means in practical terms that the only ground of appeal filed must necessarily succeed.
The decision in this case was delivered 190 days after the end of argument at the Court of Appeal and adjournment for judgment. The appeal succeeds and it is allowed. The decision of the Court of Appeal in this matter is set aside and the case is remitted to Court of Appeal (Benin Division) for re-hearing and determination within the terms of section 258(1) of the of Nigeria (1979).
Judgment delivered by
I have observed that judgment of the Court of Appeal was delivered on the 29th day of September, 1983 when the final addresses were on 23rd day of March, 1983. It is true that it is on record that the Court of Appeal invited further addresses the 28th day of July, 1983. Even then, as at that date1 the period of three months allowed by section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 had been exceeded.
Therefore, by all calculation, the judgment was delivered in contravention of section 258(1) of the Constitution and therefore a nullity. A judgment that is a nullity has no use to any one. It is as if it never existed. We have in the cases of Ifezue v. Mbadugha (1984) 1 SC. NLR. 427 and Paul Odi v. Osafi (1985) 1 NWLR. 18 held that any contravention of section 258(1) of the Constitution makes the judgment delivered a nullity the appeal proceedings in the Court of Appeal also a nullity and the case liable to be set aside for rehearing.
The proceedings and judgment of the Court of Appeal in this matter are hereby declared a nullity and the appeal is hereby remitted and ordered to be heard de novo by the Court of Appeal.
I agree with all the orders as to costs made by the Chief Justice of Nigeria, my learned brother1 who read the lead judgment in this appeal.
Judgment delivered by
I agree with the judgment just delivered by the learned Chief Justice. It is true that the appellant ought to have filed his notice of appeal in the Court of Appeal and not in this court. One thing however1 stands out clearly, namely, that the judgment delivered by the Court of Appeal is in flagrant breach of section 258(1) of the 1979 Constitution, having been delivered outside the three months limited by that section. Therefore1 no amount of argumentative peregrinations will save that judgment from being a judgment delivered in breach of the Constitution. Indeed, even if no appeal was filed against the judgment1 whenever an issue arises and that judgment is produced, it will be countered with a plea that it was a judgment delivered without Jurisdiction since the Court of Appeal had no jurisdiction to deliver that judgment outside the three months limited by section 258(1) of the Constitution.
The question now is: how do we save the situation? On the principle that procedure and technicalities must give way to substantive law and justice1 I think the situation can best be met
(i) by extending the time within which the appellant should appeal.
(ii) treating the appeal as if properly filed; and
(iii) making an order on that basis
Accordingly, I hereby extend the time within which the appellant should appeal; deem the papers filed as sufficient notice and grounds of appeal; and hereby set aside the judgment of the Court of Appeal dated 12th July 1985 as being a judgment delivered in breach of the Constitution. The appeal is therefore allowed with N300.00 costs to the appellant and the case sent back to the Court of Appeal for rehearing in accordance with the law.
Judgement delivered by
I agree that there is substance in the preliminary objection filed by Dr. Enemeri. The notice of appeal filed by the appellant dated September, 1986 was filed in this instead of in the Court of Appeal in accordance with Order 2, rule 30 of Supreme Court Rules, 1985. Technically, there is no appeal before this Court. However, from the record of proceedings which I have perused, the judgment of Court of Appeal dated 29th September, 1983, was contrary to section 258 of Constitution of the Federal Republic of Nigeria, 1979. See Odi V Osafile (1985) N.W.L.R. 17; Ifezue V Mbadugha, (1984) 1 S.C.N. L.R.427. Final addresses were concluded on 23rd March, 1983, and even when argument was reopened by the Court of Appeal on 28th July, 1983, the mandatory period of 3 months had already expired. See the judgment of this court in Sodipo v Lemminkainan OY (1985) 2 N.W.L.R. 547. Accordingly, the judgment of the Court of Appeal dated 29/9/83 is a nullity. I agree that the case be remitted to the Court of Appeal, Benin City, for hearing of the parties' appeals on their merit. I agree with the order as to costs made by the learned Chief Justice of Nigeria.
Judgement delivered by
The notice of appeal in this case was filed in this court instead of the court below contrary to Order 8 rule 2 of the Supreme Court Rules, 1985. This notwithstanding it is manifest from the record of appeal that the Court of Appeal delivered its judgment long after the period of 3 months prescribed by section 258(1) of the 1979 Constitution had expired. It follows, therefore~ that the judgment of the Court of Appeal is a nullity - See Ifezua V Mbadugba & Anor. (1984) 5 S.C. 79 and Kpema V. State (1986) 1 NWLR 396. In the light of the foregoing, I am inclined to waive the irregularity attendant to the filing of the appeal in this court, and allow the appeal. Accordingly1 the judgment of the Court of Appeal is hereby declared null and void and of no effect. I agree with the consequential orders contained in the judgment of my learned brother the Chief Justice of Nigeria1 which he has just read.
In accordance with Order 7, rule 30, of the Rules of this court, an appeal to this court must be filed in the court below. It is not disputed that the purported notice of appeal in this case was filed in this court contrary that rule. In the circumstances there is no proper appeal in this court and ordinarily the appeal should be struck out. However, from a perusal of the papers and the record of proceedings in the appeal, it is obvious that the judgment of the Court of Appeal was delivered in flagrant breach of section 258 of the 1979 Constitution in that it was delivered beyond the period of three months. For instance on 23rd March, 1983, the Court of Appeal reserved its judgment after hearing final address. The matter was again reopened for further address on 28th July, 1983! after the constitutional provision had already been breached. But the judgment itself was not delivered until 29th September, 1983. This is therefore an obvious nullity which should not in the interest of justice be allowed to stand.
I will suo
for it to
Judgement delivered by
I agree with the judgment delivered by the learned Chief Justice of Nigeria. The applicant was wrong in filing his notice of appeal in this court. The notice should have been filed in the court below. But this technical point notwithstanding the record shows that the judgment of the Court of Appeal was delivered several months (190 days) after the statutory 3 months' period prescribed by s.258 of the 1979 Constitution. That judgment was therefore not only bad but incurably bad. It is to all intents and purpose a nullity. One cannot really appeal against nothing but one can appeal to this court to declare that the judgment of the court below is a nullity.