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Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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➥ CASE SUMMARY OF:
Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

by Branham Chima.

➥ ISSUES RAISED
A judgement that is a nullity;
Judicial notice of a nullified judgement;

➥ CASE FACT/HISTORY
The case itself started in 1969 in the High Court of Asaba Judicial Division of the Mid-Western State of Nigeria as suit No. AG/l/69. The claim was for a declaration of title to a piece or parcel of land known as and called Idumu-Ozoba situate and lying at Umunede. The plaintiffs also claimed for an injunction against the defendants as well as £200 damages for trespass said to have been committed in 1968. After a full hearing by Obi, J. he granted to the plaintiffs the declaration they sought, awarded N300.00 for trespass against the defendants and, subject to the liberty of any of the defendants having any crops on the land in dispute to reap them, permanent injunction against them. From that judgment which was delivered on the 29th of July, 1980 the case has had a chequered career.

In the first appeal to the (Federal) Court of Appeal, Benin City, the judgment of the learned trial Judge was confirmed. On the defendants’ further appeal to this court, the court in the now celebrated case of Odi v. Osafile (1985)1 N.W.L.R. (Pt. 1)17 declared the judgment of the Court of Appeal null and void on the ground that it was delivered more than 3 months limitation of time within which to deliver such a judgment under Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979. The case was remitted to the Court of Appeal for hearing de novo before another panel. I should mention that the first appeal before the Court of Appeal was heard and determined by that court composed of Omo-Ebo, Agbaje and Okagbue, JJ.C.A. The second hearing was however, by the Court of Appeal, coram Ikwechegh, Mustapher and Ajose-Adeogun, JJ.C.A. This latter panel reached a conclusion different from that of the earlier panel: they allowed the defendants;’ appeal, set aside the judgment of the High Court and dismissed the plaintiffs’ claim.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED, IN PART]

I. Is the court below correct in refusing to read or consider its earlier opinion which was declared a nullity by the Supreme Court for the purpose of determining the relevant issues in this appeal?

RESOLUTION: IN RESPONDENT’S FAVOUR. (The Court of Appeal was right).
[THE OPINION IN A NULLIFIED JUDGEMENT COULD BE RELIED AND ADOPTED BY A SUBSEQUENT COURT; AND IF PARTY CITED SAME, COURT SHOULD CONSIDER IT
‘As for whether such a nullified judgment can be relied upon as the opinion of the court or Judge who delivered it, it is helpful to note that a judicial opinion may be either binding, persuasive, or merely obiter. An extra-judicial opinion may persuade a court, which may adopt it; or may fail to do so if the court considers the proportion of law, which it espouses as incorrect. When a judgment has been declared null and void, and so of no legal effect, it looses its binding and persuasive effective as a judicial opinion. But it exists and like the opinion of any other writer, may be adopted in argument or even accepted and adopted by a court in its judgment. It is, of course, true particularly in the appellate courts that the old practice whereby the opinion of a writer could be adopted in court only long after his death is no longer the vogue. We no longer insist upon the old rule that only the opinion of the illustrious dead could rule the living in our courts. If a contemporary jurist puts forward a convincing proposition on a recondite point of law on which there is no decided authority there is now nothing wrong with a court accepting and applying it, particularly in the top echelon of our judicial hierarchy. The eminent Lord Justices of the House of Lords recently bore testimony of the fact that this breeze of change is also blowing through the highest appellate courts in Britain:-see Lord Diplock in  “A.L.G. – Judge’s View” (91 L.Q.R. (1975) 457 at p.459); also Lord Reid:-“The Judge as Law Maker” p.22. So it cannot be a valid objection that the Judge who delivered the judgment is still alive. A clear suggestion that the effect of the nullification of the judgment is only to rob it of its legal effect and that in spite of its nullification it still exists as an opinion of the court that gave it is contained in the decision of Swanwick, J., in Ealing London Borough Council v. Race Relations Board & Anor.  (1971)1 Q.B. 309 at p.312 where he said:-  I am however naturally anxious to save duplication of effort and legal costs; and I have, therefore, consented to listen to argument on both issues and to give my decision on both, whatever it may be, to the end that, if it should be determined by me or on appeal that this court has jurisdiction, my judgment on the substantive question should, if it stands, be binding on the county courts.  If of course it should be determined by my unchallenged decision or on appeal that this court has no jurisdiction, my decision on the substantive point will amount to no more than an expression of opinion.  (italics mine, for emphasis).  The Judicial Committee of the Privy Council put the matter even clearer when it stated in Kofi Foifie, Odikro of Marbanv v. Barima Kwabene Saifah Kenyasehene (1958) A.C. 59 at page 65 thus: –  To say that a judgment is a nullity is not to say that the judgment is not a judgment for any purpose, and in particular, that is it not a judgment within the meaning of the term in Ord. 41. Their Lordships are of opinion that the term in Ord. 41 means nothing more than an adjudication by a Judge upon rights of parties. If made without jurisdiction it would be ineffectual, but the effectiveness or otherwise of the judgment is not relevant to the question whether it is a judgment.  I entirely agree. A judgment delivered without jurisdiction or nullified for any other cause continues to exist as a judgment, although it will be ineffectual, invalid, or even unlawful. It is no longer in the eyes of the law an effective adjudication on the rights of the parties, or per se, in appropriate metaphor, a legal foundation upon which any lawful right could be hoisted; but it exists in point of fact. It remains the opinion of the court or Judge that delivered it, for what it is worth. The case of  R. v. Almon (1765) W.N. 234 was never delivered; but the opinion in it has been relied upon in many cases.  As it is so, it is my considered opinion that such opinions expressed by a court in a judgment that has been nullified, if properly brought before another court, could be used, like any other opinion, say, in a text book. For this reason, there is force in the argument of Chief Williams when he submitted that by a court refusing to consider a party’s argument adopting such an opinion in its brief simply because the party has adopted an opinion of a court in a judgment that has been nullified as having been given without jurisdiction could amount to a misdirection. Indeed, it could, in a proper case, be tantamount to refusing to consider the party’s case-an infringement of the party’s guaranteed right of fair hearing. Whether or not the opinion is right is quite an irrelevant consideration. For it is settled that a court is bound to consider every material aspect of a party’s case, no matter its merit. But I must add that the opinion in the nullified judgment must be properly raised at the re-hearing.’

Available:  ACN & ORS VS INEC & ORS (2013)

HOWEVER THE NULLIFIED JUDGEMENT SHOULD HAVE BEEN PRODUCED BY THE APPELLANT BEFORE THE LOWER COURT
‘In my opinion such is the position in this case. The appellants were obliged to have produced in court a true copy of the judgment which had been nullified and which only could have made their page and line references meaningful. Then they should have called upon the court to take notice of it. At least they could have exhibited, verified extracts or portions of the judgment they wanted to rely upon as opinions. In saying so, I am of the view that once the judgment had been nullified, it could no longer be noticed as law, but as a fact. Being a fact, it could not enjoy any more notoriety than any other opinion in, say, a textbook lying in a shelf in the court’s library.’].
.
.
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✓ DECISION:
‘The conclusion I have reached is that in theory, learned senior counsel for the appellants was right in his contention that the learned Judge was wrong to have stated that the appellants could not rely upon the opinions in the nullified judgment because on being set aside, it was non-existent. But because those opinions were not properly placed before the Court of Appeal at the re-hearing there was really nothing to take notice of. So, the appellants are right on the main issue that the learned Justices of Appeal were wrong to have said that they could not consider the opinions expressed in the nullified judgment because the judgment ceased to exist. But upon a proper direction the Court of Appeal would have dismissed the appeal on the subsidiary issue in that the proper materials were not placed before the court. I am entitled to make any order they would have made. I would therefore, dismiss the appeal. It is hereby dismissed with N500.00 costs against the appellants.’

Available:  Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) - SC

➥ FURTHER DICTA:
⦿ OUT OF NOTHING, NOTHING CAN ARISE; NOTHING CAN COME FORTH OF A JUDGEMENT THAT IS A NULLITY
The aforesaid attempt by respondents’ counsel to influence this court, consisting of a different panel of Justices, by the previous but nullified conclusions-even though described as opinions-of its predecessors in respect of the same appeal is, in my view, a novel and an improper one. As rightly submitted by learned Counsel for the appellants a judgment set aside as a nullity ceases to have any effect whatsoever, for it is non-existent and as if it had never been given. I therefore agree with the conclusion of appellants’ counsel that such judgment “cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise.” Reference was specially made to the cases of Akpene v. Barclays Bank (1977)1 S.C. 47 at 59 where the Supreme Court adopted the view of Lord Denning in Macfoy v. United African Company Ltd. (1961) 3 W.L.R. (P.C.) 1405 at 1409, to the effect that: “You cannot put something on nothing and expect it to stay there. It will collapse.” — P. Nnaemeka-Agu JSC.

⦿ A JUDGEMENT IN A CIVIL CASE IS MADE UP OF FIVE DISTINCT PARTS
I belief it is useful to begin my consideration of the main issue for determination in this appeal by advising myself that a judgment in a civil case is made up more or less of five distinct parts. These are the introduction of the issue in controversy between the parties, the cases of either side to the litigation as revealed on the pleadings, the evidence called by either side in support of its case, the resolution of the issues of fact and of law put forward by each party, and the court’s conclusions based on the resolution of the issues and the claims before the Court. — P. Nnaemeka-Agu JSC.

⦿ MEANING OF OPINION IN A CASE/JUDGEMENT
I must not, I believe, confuse it with the meaning attached to the word in England where it refers to the speech or a whole judgment of a Law Lord delivered in the Rouse of Lords, or in the United States where it refers to the entire judgment of a superior court. It is in the context of the use of the word with reference to the United States and House of Lords’ decision that Black’s Law Dictionary (5th Edn.) at p.985 defined “opinion” as-  The statement by a Judge or Court of the decision reached in regard to a cause tried or argued before them expounding the law as applied to the case and detailing the reasons upon which the judgment is based.  This equates an “opinion” to the entire decision, which would include other parts of a judgment. But clearly the appellants are not saying that the Court of Appeal on the second hearing should have simply rubber-stamped and handed down again the previous decision of that court differently constituted. A more relevant definition of the word “opinion” in the sense it is used in this appeal is to be found in Words and Phrases Permanent Edition Vol. 29A at pp. 495-496 where “opinion” was defined thus: “An ‘opinion’ of the court is a statement by the court of its reasons for its findings, conclusions, or judgment.  I adopt this, and only add that it also includes not only the reasons but also such findings or conclusions in such a judgment. So, an “opinion” is the reasoning and conclusion of a Judge on the issue or issues in contention before him. It is in this context that I shall consider the real points raised by this appeal. — P. Nnaemeka-Agu JSC.

⦿ BECAUSE A JUDGEMENT IS A NULLITY DOES NOT MEAN IT IS NON-EXISTENT
I must observe that in trying to answer these important questions, learned counsel for the respondents tried to take umbrage under the statement of Lord Denning in Macfoy v. United African Co. Ltd. (1961) 3 W.L.R. 1405 at p.1409, P.C. where he said:  Any purported exercise of any function being without any legal or Constitutional authority was null and void and of no effect. . .” If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.  With respects to the learned counsel for the respondents, it appears to me that the very eminent Lord Justice’s aim in this much misquoted and misapplied dictum was again talking of the effect in law of a judgment being declared void. It is “automatically null and void without more ado” and every proceeding which is founded on it is also bad and incurably bad.” His Lordship did not say that it ceases to exist as a fact. I agree with Chief Williams that there is a world of difference between saying that a judgment has no legal effect or consequences and saying that it is non-existent; between giving a judgment which is a nullity because, say, it was given without jurisdiction and saying that no judgment was given at all. The learned Justice of Appeal was, therefore, in error when he held that because the previous judgment of the Court of Appeal had been nullified by this court-for having been delivered more than three months of the conclusion of the final addresses, it follows that the judgment was non-existent. In my view, although, by its being declared a nullity, the judgment had no more any legal effect, it continued to exist de facto. — P. Nnaemeka-Agu JSC.

⦿ SUPREME COURT SHOULD INFREQUENTLY USE ITS POWERS DONATED IN SECTION 22
[W]e decided to hear counsel on both sides on the point, even though it was a point which could have been properly raised under a respondents’ notice. This course is of course permitted by the Rules (see, for example, Order 8 rule 3(6) of the Supreme Court Rules, 1985). Besides, our consideration of the point is necessary for the determination of the real question in controversy in the appeal within the meaning of Section 22 of the Supreme Court Act. Indeed it is envisaged by the subsidiary issue framed for the appellants in their brief. But let me emphasize that although such powers, no doubt, exist, they are such that this court does not want to make a habit of drawing therefrom constantly so that it does not give the wrong impression that it is taking sides in matters in controversy before it. A respondent’s counsel should always make his own decision and file a respondent’s notice whenever necessary, otherwise he may find that he cannot advance a certain line of argument. I am invoking the power in this case because it is necessary for my decision in the case and has been raised by the subsidiary issue and was fully argued. — P. Nnaemeka-Agu JSC.

⦿ A SEPARATE PANEL CANNOT TAKE JUDICIAL NOTICE OF NULLIFIED JUDGEMENT OF ANOTHER EARLIER PANEL
In argument, we were not referred to any decided case that appeared to have answered the basic problem in the above questions. I shall therefore attempt to answer them inferentially from some decided cases and from general principles. In the case of Craven V. Smith (1869) L.R. 4 Exch. 146 which was referred to in argument, it is clear from a careful reading of the report that what the court was held to be entitled to look at was the lawful record of the same panel of the court in the same case. It cannot, therefore, be regarded as supporting a case like this in which the question is whether a separate panel can take notice of the nullified judgment of an earlier panel. Even though the courts in England took judicial notice of the law of England as administered in the Court of Chancery (for which see e.g. Sims v. Marryatt 17 Q.B. 281), yet the practice of that court was earlier proved by oral evidence before it would be noticed. Hence in Dicas v. Brougham Ltd  M. & Rob, 309, Lord Eldon had to be called as a witness to prove that practice. In Tucker V. Inman 4 M & Gr 1049 an equity counsel was called for the same purpose. In Place V. Potts 8 Exch. 705 at the invitation of counsel, the court made its own inquiry and informed itself as to the jurisdiction of the Court of Admiralty. See also Williams V. Lloyd 1 M & Gr. 671. — P. Nnaemeka-Agu JSC.

⦿ JUDICIAL NOTICE: MATTERS SO NOTORIOUS, AND MATTERS WHERE COURT MEMORY NEEDS TO BE REFRESHED
✓ It seems to me from a view of all the decided cases that matters which can be judicially noticed fall into two broad classes. First: There are those which are so notorious that the court automatically takes notice of them, once it is invited to do so. Secondly: There are others which, although judicially noticeable, the court will not do so until something is produced, though not formally tendered as evidence, in order to inform the court or refresh its memory on the matter before it notices it. Thus the court may be invited to, and does, inform itself as to a date (Tutton v. Darke (1860) 5 H & N 649; for a publication in a Gazette by the production of the Gazette (Ogbunyiya v. Okudo (supra). On this broad division of judicial notice, the courts have usually refused to take notice of matters falling within the second category when the material from which it can inform itself or refresh its memory is not produced by the party inviting it to take notice of the particular matter. In Omeron v. Dowick (1809)2 Camp. 44, Lord Ellenborough declined to take judicial notice of the King’s proclamation because counsel failed or neglected to produce a copy of the Gazette in which it was published. In  R. v. Holt (1793) 5 T.R. 446 the court held that articles of war of which it ws invited to take notice ought to have been produced. Also in Pilkington v. Cooke, 16 M & W. 615, the court refused to take judicial notice of when an order of the Judges, allowing a scale of fees to be taken by the sheriffs, was made. It appears to me from the decisions in the above cases that the courts will take notice without more of cases falling within the first category of matters that could be judicially noted, above; but will, in the case of the second insist on the appropriate material from which it can inform itself or refresh its memory being produced. I believe that the underlining assumption is that cases of the first category are matters of knowledge of which the Judge knows or is expected to know. He is not expected to know or remember off hand matters falling within the second category. But because of their very nature, the court can be informed of them or his memory be refreshed thereon; without the matter requiring to be proved by evidence. — P. Nnaemeka-Agu JSC.

✓ The point that I need to emphasize at this stage is that our law preserves the distinction between those facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection (3) of Section 73 of the Evidence Act, he may, when called upon to take judicial notice of the fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so. When the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take notice of the fact. The only difference is that under section 73(2), even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference. — P. Nnaemeka-Agu JSC.

⦿ MEANING OF JUDICIAL NOTICE
So, “judicial notice” remains in Nigeria what it is in England, that is to say: –  …….facts, which a Judge can be called upon to receive and act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.  See: – Commonwealth Shipping Representative v. P. & O. Branch Services (1923) A.C. 191 at p. 212. Needless to say that it is for the party to lay the foundation and call upon the Judge in the appropriate manner to take judicial notice of the fact: the importance of this point in this appeal will become more obvious anon. — P. Nnaemeka-Agu JSC.

⦿ THE ONLY FOUNDATION FOR JUDICIAL NOTICE IS THAT IT HAS TO BE COMMON KNOWLEDGE
It follows from what I have been saying that every matter entitled to be judicially noticed has its appropriate and necessary foundation without which it cannot be judicially noticed. It must be noted that judicial notice is an anomalous appendage in the law relating to proof. Some regard it as part of the law of evidence; but then it has not the trammel of the law of evidence, such as scrutiny under cross-examination, the rules of admissibility, and so on. Save in such cases as ascertainment of notorious custom and of the practice of the Court of Chancery, in which evidence may be required before judicially noticeable in the first instance, it has really nothing to do with the rules of evidence. What is necessary in the case of judicial notice is a proper foundation for that particular type of fact before it could be judicially noticed. That foundation may be common knowledge, common knowledge reinforced by such information material as the Judge may deem it necessary to consult under Section 73(2) of the Evidence Act, statute, the common law, and acquired knowledge under section 73(3) of the Act (See: -Nokes: The Limits of Judicial Notice – 74 L.Q.R. 59). As I have stated, judicial notice founded on common knowledge is founded on the Judge’s actual knowledge, experience and memory as a member of society; sometimes however, he finds it necessary to refresh his memory by reference to records, books and reports. The material foundation of notice of a statute is the production of a copy of the statute; that of any official act is the production of the Official Gazette. Where the matter to be noticed is an acquired knowledge, the only foundation is the production of the book, document, or other material, which will enable the court to do so under section 73(3) of the Act. — P. Nnaemeka-Agu JSC.

⦿ MEANING OF COURSE OF PROCEEDINGS
So, “course of proceedings” of a court means the line, direction, path, or way the lis in course proceeds. This is, of course, in contradistinction to the content of the litigation or the evidence called in support of the case of either party thereto. On the other hand, the “practice” of a court ordinarily means the rules that make or guide the cursus curiae, and regulates procedure, within the precincts of the court. So, in the technical sense, rules of practice denote the mode of proceedings by which a legal right is determined and enforced, as distinguished from the law which gives or defines the right. See Lush, L.J. in Poyser v. Minors  L.R. 7 Q.B.D. 325 at p. 333; Lever Brothers Ltd. v. Knede & Bagnall (1937) 2 K.B. 87; and Re Shoesmith (1938) 2 K.B. 637. — P. Nnaemeka-Agu JSC.

⦿ COURT CANNOT TAKE JUDICIAL NOTICE OF A NULLIFIED JUDGEMENT NOT PRODUCED BEFORE IT
Whether the record and contents of a nullified judgment ought formally be produced in court or extract thereof be placed before the court before the opinions expressed therein could be countenanced; or whether the Court of Appeal could have taken notice of their existence and contents by the mere fact that the nullified judgment was probably in the archives of the court. In Attorney-General v. Silem  L.R. 10 H.L. Cas. 704, it was held that S.26 of the Queens Remembrance Act, 1859, which empowered the Barons of Exchequer to frame rules for making “the process, practice and mode of pleading” on the revenue side of the court uniform with that of the plea side, did not give the Judges the power of entertaining appeals on revenue cases, as they assumed. It is always necessary to exercise powers conferred by an enabling statute within the four comers of the statute: see Australian cases of Tavcar v. Tavcar (1950) A.L.R. 260; White v. White (1947) A.L.R. 342. It therefore appears to me that the power, conferred by S.73(1) of the Evidence Act, for a court to take judicial notice of its course of proceedings and rules of practice cannot rightly be invoked to take judicial notice of the contents of a nullified judgment, which the members had not earlier had an opportunity of seeing. For, true, it existed as a fact, being devoid of any legal consequences, it was then like any other opinion, say, in a textbook. I do not think that anybody can suggest that such a textbook opinion should be judicially noticed. — P. Nnaemeka-Agu JSC.

⦿ A COURT WILL TAKE JUDICIAL NOTICE OF HIS JUDGEMENT, REPORTED OR UNREPORTED
I think it is fairly well settled and not a matter of argument that a court will take judicial notice of its records and proceedings. In respect of the valid judgments of a court of Record, the court will readily take judicial notice of its judgments reported and unreported. I would not draw any distinction between panels of the same court. A decision of one panel is a decision of the Court and each Panel will take judicial notice of it. In my view, it is only for convenience that published report of valid judgments of court or copies of its unreported judgments are brought before a court. They need not be, they could just be cited. — Nnamani JSC.

⦿ NULL JUDGEMENTS BECOME MERE DOCUMENTS; COURT CANNOT TAKE JUDICIAL NOTICE OF ALL DOCUMENTS IN HIS REGISTRY
As stated earlier, such judgments exist not as judgments but as documents. They become documents as any other document in the Registry of the court. It would be most tedious to argue that the court could take judicial notice of every document in its registry. Section 73 of the Evidence Act deals with matters, which the court can take judicial notice of. As stated earlier, a judgment declared null exists in fact, it exists as a document in the Registry. In my view, if any party to proceedings desires to make use of such document, it has to be produced before the court. Section 73(3) of the Evidence Act provides that:-“If the Court is called upon by any person to take judicial notice of any facts, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.” — Nnamani JSC.

➥ PARTIES:
⦿ APPELLANT(S)
Gbaniyi Osafile
John Emeri

⦿ RESPONDENT(S)
Paul Odi
Okwumaso Nwajei

➥ LEAD JUDGEMENT DELIVERED BY:
Phillip Nnaemeka-Agu

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Williams, S.A.N.

⦿ FOR THE RESPONDENT(S)
Tayo Oyetibo, Esq.

➥ MISCELLANEOUS POINTS
***DISSENTING
**ESO JSC:
⦿ THERE IS ONLY ONE COURT OF APPEAL; JUDGEMENT GIVEN BY THE COURT OF APPEAL, HOWEVER THE PANEL, IS ONE
‘And so, the next question I ask myself is, having regard to the facts of this case, would the judgment given by the Court of Appeal (Omo-Ebo, Agbaje and Okagbue, J.C.A.) which judgment was nullified by the Supreme Court cease to be part of the lawful record of the court? If the answer is in the negative this leads us back to the contention, which we are all not in support of, that once a judgment is null, it ceases to exist. The judgment, though nullified, remains part of the record of the Court of Appeal, stays in archives of that court, and is identifiable by its appeal number forever.  Then another question, Will it make any difference if the panel of the Court of Appeal before whom the hearing de novo is listed has changed? My answer is in the negative. There is only one Court of Appeal set up by the Constitution. Whether the court sits in panels or in divisions makes no difference to the fact and the law that the court is one and one only. In the United States of America, the country is divided into divisions for the purpose of setting up Courts of Appeals.  There, the right hand is not expected to know what the left does until one hand examines the other. The judicial system in this country was not unaware of the United States system before the idea of “Courts” was jettisoned in favour of a Court. Historically, the arrival at a court and not courts was not without an incisive debate. A Judges Conference met on this and took the decision, which was communicated, to the Government before the Federal Court of Appeal was set up a single Court in 1976. And in that case, there is only one hand, and that hand knows and is expected to know and must be held to know what it does whether it has five fingers, or more or less. And so, when the second hearing came, coram Ikwechegh, Musdapher and Ajose-Adeogun, JJ.C.A. that court must take notice of the existence of an earlier record of the same case in the same court (Omo-Ebo, Agbaje and Okagbue, JJ.C.A.). I regard it as an acceptable criticism, if it is limited to criticism that the passage in the opinion, which was being relied upon the Brief, ought to have been copied out and set down before the court instead of a mere reference to the pages. It is more convenient so to do, but with respect, I fail to subscribe to the view that not doing that which is merely convenient is fatal. The record is there, it is an existing record of the Court of Appeal. It is sufficiently identifiable by the court and in any event, and this is important, there has been no complaint against non-identification. The court has every facility of making reference to the pages indicated. This I believe brings the respondents [in the Court of Appeal] adequately within the law.’

**KARIBI-WHYTE JSC:
⦿ THE COURT OF APPEAL SHOULD HAVE RELIED ON THE STATEMENTS FROM THE NULLIFIED JUDGEMENT, WITHOUT THE JUDGEMENT TENDERED, AS IT FORMS PART OF THE RECORDS OF THE COURT
‘The third question is whether a judgment declared to be a nullity is still part of the record of the court. I think it follows that if the judgment exists as a judgment but devoid of legal attributes or legal consequences, it still remains a part of the record of the court all the same. The decision of Forfie v. Seifah (supra) and Ealing London Borough Council v. Race Relations Board (supra) already referred to support the view. It should be pointed out that the effect of a declaration of nullity merely strips the act concerned of its legal attributes, it does not wipe it out of existence. The factual situation still remains stripped of its legal incidents. Hence a judgment declared to be a nullity still remains part of the record of the court but without legal incidents. A declaration of nullity does not expunge the existence of the facts from the records of the court. The legal effect, and it is the only effect, is to deprive the judgment so nullified of its legal characteristics.’

‘A court is bound to consider the case validly presented to it by parties before it. A refusal to do so on any pretext, except on a ground of law will amount to a denial of the right to hear such party, a ground fundamental, to the administration of justice, the breach of which is fatal:-See S.33(l), Constitution, 1979. The opinion in the nullified judgment having been adopted by appellant as part of his argument, not on the ground that it constitutes either a binding or, persuasive precedent, but as part of the case of the appellant, the court was bound to consider it. The merit of the material relied upon is a different consideration and should not constitute a ground for the decision whether to look at the facts.’

‘There is only one Court of Appeal for the Federation of Nigeria, which sits, in different administrative divisions. It will not only be awkward but also preposterous to demand formal proof of the judgment of one division in the other. In fact the Evidence Act appears to have settled the doubt. For instance 5.73(1), which prescribes facts in respect of which courts must take judicial notice, includes: –  (m)  the course of proceedings and all rules of practice in force in the High Court of Justice in England and the High Court of the States.  Furthermore S.72 of the Evidence Act provides  No fact of which the Court must take judicial notice need be proved.  The matters sought to be used in argument being in the course of judicial proceedings are those which are mandatory required to be judicially noticed and in respect of which no proof was required. The record of proceedings of the nullified judgment is of the Benin City Division of the Court of appeal. It seems to me a little tedious to require each panel to prove and not to take judicial notice of the proceedings in the Court of the Division.  It is interesting to conjecture the position in an appeal where two members of the Court of the Division have differently sat in an appeal. Merely because they sat in two different panels of the court of the same division, parties will be required to lead evidence before proceedings in which they were parties could be admitted before them. I do not think it is consistent with the provisions of the Evidence Act.’

‘The conclusion I have reached in this appeal is that it was only necessary for counsel to the appellants to refer the court to its judgment even though nullified. The judgment is still a judgment of the court in fact which having not satisfied the provisions of the law could not qualify as a judgment in law capable of being enforced. The learned justices of the Court of Appeal were wrong for refusing to look at the records of the court. I will therefore hereby allow the appeal of the appellants and order a rehearing in the court below.’

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