➥ CASE SUMMARY OF:
Paul Odi & Anor V. Gbaniyi Osafile & Anor (1985) – SC
by Branham Chima.
Paul Odi & Anor
Supreme Court – SC.144/1983
➥ JUDGEMENT DELIVERED ON:
Friday, the 11th day of January, 1985
➥ SUBJECT MATTER
Judgement delivered after three months.
➥ THIS CASE IS AUTHORITY FOR:
⦿ DESPITE SLOWNESS, JUSTICE WILL STILL BE ACHIEVED
It is tragic that this case continues to be beset with delays peculiarly characteristic of the slow movements of the mechanism of justice and the need to ensure that justice is done and fair hearing given to the parties in the case. The wheels of justice grind slowly but surely till its purpose is achieved. — Obaseki, JSC.
⦿ SOME CASES WHERE THE SUPREME COURT HAS OVERRULED ITSELF
Counsel then referred first to American authorities to indicate that the Supreme Court of the US has frequently overruled itself. These cases are: Brown v. Board of Education 98 L Ed 873, 38A LR 2nd 1180 (overruling Plessy v. Fergusson 41 L Ed 216 on racial segregation matters) Girouard v. U.S. 90 L Ed 1084 (overruling US v. Schwimmer 73 L Ed 889) West Virginia State Board of Education v. Barnette 87 L Ed 1628, 147 A.L.R. 674 (overruling Minersville School Dist. v. Gobitis 84 L. Ed. 1375, 127 A.L.R. 1493 as to constitutionality of requirements to salute the flag of USA). — Obaseki, JSC.
⦿ LAWS ARE MADE FOR MEN, NOT MEN FOR LAWS
Laws are made for men and not men for laws. The administration of justice involves the administration of the purest principles of law among men for the good of men in its fairest conception. Man is fallible, so are the thoughts of man. This fallible nature of man demands that whenever the errors of thoughts and thought processes surface and are exposed and brought to the attention of its authors, there should be power or jurisdiction to depart from the errors and tread the correct path. — Obaseki, JSC.
⦿ WHEN DELIBERATION HAS ALREADY BEGUN, ADDRESSES BY COUNSEL ARE NOT FINAL ADDRESS
An invitation by the court to address it on points raised by the court during the deliberation or consideration of the judgment does not, in my view, come within the contemplation of evidence and final addresses in section 258(1) of the 1979 Constitution. — Obaseki, JSC.
⦿ RATIONALE BEHIND JUDGEMENTS BEING DELIVERED WITHIN THE CONSTITUTIONAL THREE MONTHS
There is no doubt, that if a Court of Appeal fails to deliver its judgment within three months, such failure contravenes this provision. Therefore, any judgment becomes null and void if delivered outside the time limit. The question is, who should be blamed since the appellants or the respondents as the case may be, are not responsible for the lateness of the Court of Appeal in delivering its judgment. Where, therefore, should the blame lie, in what appears to be the wrong doing of a panel of judges There is no provision in the law as to who will bear the responsibility for the cost of re-hearing. It therefore appears, that parties to a suit are being punished for the wrong doing which they are not responsible for. It is in this sense that counsel argued forcibly that the construction of the relevant section should not be mandatory but directory. If one accepts the argument that the provision of section 258(1) of the 1979 Constitution is directory, then the question is as to what happens to the judgment delivered in breach of it. Definitely, the judgment violates the provision of the Constitution, because it was delivered out of time. The judgment, therefore, is null and void. The next question is as to what happens to the parties and the judges Except that the judgment becomes null and void, the judges do not suffer any liability. It is quite clear that there is no provision for damnifying judges for such a breach. This section of the Constitution has been specially promulgated to prevent rather undue delayed judgment, which, being capable of being set aside, does not benefit either party to the case or on appeal. When any judgment is unnecessarily delayed, it is not possible for the court of trial to retain observations of the witnesses, and the freshness of the demeanour of a witness is lost. It is, therefore, to save such undue delay that this particular provision has been made. Often in the past, a judgment is set aside and the case is remitted for retrial or re-hearing, because the delay is so long that a trial judge would have lost advantage of observation of a witness and sometimes forgets the sequence. It is the duty of all judges to apply the laws strictly, but it will not be right of them to attempt to wriggle out of such application and defeat its object. It is, therefore, essential that all courts should see to the proper compliance with section 258 (1) of the Constitution of Nigeria 1979. Learned counsel for the appellant emphasised that directory construction should be preferred, because of the helplessness of parties. In a judgment given in violation of section 258(1), one party gains and the other loses. It is only fair that parties be restored to their original status when ordering re-hearing. The purpose of section 258(1) is to give some certainty as to the law determining rights of parties. It is, therefore, of the utmost importance to either the appellant or the respondent that a court, which determines an appeal, does so within the required period. That will lead to the enhancement of the court and the judiciary. — Sowemimo, JSC.
⦿ APPELLATE COURTS ARE CONCERNED WITH THE APPLICATION OF LAW TO FACTS
In a trial court, the judge, in determining findings of facts, depends on his observations of witnesses. This is not the case in an appeal court. Here it is an application of the law on the facts as found by a trial court. A final court or a court of appeal, or a court of first instance, therefore, must deliver its judgment within three months, as provided by our Constitution. It will not therefore defeat the purpose of section 258(1) of the Constitution, if judgments are delivered within three months. It is in this sense that compliance with the relevant section of the Constitution will enhance the administration of justice. Briefs are filed, in addition to oral argument, before a Court of Appeal, and the Supreme Court. The Court of Appeal and the Supreme Court are, therefore, concerned with the law on the findings of facts. That places the Court of Appeal or the Supreme Court in a much better position. — Sowemimo, JSC.
⦿ TIMELINESS OF JUDGEMENT RENDERING
But, all the same, certainty of the law is not all that easy as it sounds. Certainty, however, goes along with timeliness. The parties come before either court, with rival or opposing propositions of law. The duty of a Court of Appeal or the Supreme Court is heavier therefore when determining certainty of law from that of the court of first instance. In any case, what is uppermost is timeliness and certainty. Whatever research is necessary, the Court of Appeal or the Supreme Court judgment should be delivered within the time limit. It is, therefore, advisable that the date of judgment should be fixed on the conclusion of argument. The Court will, therefore, not lose sight of the necessary time factor. The parties will also be satisfied that their rights will be determined on a date within a limited period. This will give more credibility and sanctity to a judgment. — Sowemimo, JSC.
⦿ MORE AUTHORITIES WILL NOT MAKE THE COURT DEPART FROM HIS EARLIER STANCE
It seems to me that the authority could justify the stance taken by Chief Williams in the presentation of his arguments when he seemed, with respect, to have presented the same arguments as he did in the Ifezue case, but now with more authorities and emphasis. However I am of the clear view that for this Court to depart from its decision in a previous case, the arguments must bring some fresh elements not just more authorities which had not been adverted to in the earlier proceedings, or that there have been new developments, even in the socio-economic or political stance of the country, especially when the matter under consideration is a matter that is provided for by the Constitution, to warrant the Court to change its earlier stand. In this case, I have gone through the profound submissions of Chief Williams and it seems to me, with utmost respect, that all the learned senior advocate has succeeded in doing is to re-argue the Ifezue case with more authorities on the same points as earlier canvassed or at least to regard the present case as an appeal over the Ifezue case. I do not think that would be sufficient to persuade me to reconsider my earlier stand in the Ifezue case. — Eso, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
O. Obaseki, J.S.C.
⦿ FOR THE APPELLANT
Chief Gani Fawehinmi.
⦿ FOR THE RESPONDENT
Chief F.R.A. Williams, SAN.
➥ CASE FACT/HISTORY
Proceedings were commenced in the High Court of Justice Midwestern Nigeria, Asaba Judicial Division Holden at Asaba by the respondents against the appellants on 3rd February, 1969 by writ of summons in which the respondents as plaintiffs claimed a declaration of title to a certain piece of land, N400.00 damages for trespass and an order of injunction. The defendants who sued in a representative capacity were (1) Osikpo Nwajei and (2) Odi Onichabor. The matter came up for hearing before Aghoghovbia, J. On completion of pleadings, the learned judge heard evidence and addresses of counsel and adjourned for judgment. He was later transferred from Agbor to Ughelli. He subsequently retired from the Judicial Service of the Midwestern State without delivering his judgment. The matter was later listed before Obi. J. for hearing. He had to carry out a new trial, hearing evidence all over again. But before then, the original 1st and 2nd defendants had died and an order to substitute the present 1st and 2nd for the original dead 1st and 2nd defendants was made on the application of the plaintiffs. The original 2nd plaintiff became old, feeble, senile and unfit to carry on with the case. Similarly, on the same application, John Emeri was substituted for the 2nd plaintiff.
The learned trial judge heard evidence and addresses all over again and gave judgment for the plaintiff.
Aggrieved by the decision of the High Court, the defendants appealed to the then Federal Court of Appeal now the Court of Appeal by notice of appeal dated the 30th of July, 1980. Only one ground of appeal was filed with the notice and it is- “that the decision of the Court is against the weight of evidence.”
At the Court of Appeal, the Appeal was dismissed and Judgement given for the Respondent. This is a further appeal to this Supreme Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Supreme Court sitting as a full court has jurisdiction to depart from the decision given previously on the same constitutional question by another full court of the Supreme Court?
A. YES, THE SUPREME COURT CAN DEPART FROM HIS EARLIER DECISION
[‘Turning to the first question, there is unanimity and I hold very strong views on it that the Supreme Court, as a court of apex of the judicial hierarchy in this country, has the jurisdiction and power, sitting as full court of seven justices, to depart from and overrule previous erroneous decisions on points of law given by a full court on constitutional questions or otherwise. The Court by law has the exclusive jurisdiction to hear appeals from the Court of Appeal (see section 213(1) of the 1979 Constitution). It is the highest and final court of appeal in Nigeria and no appeal lies to any other body, authority or persons in Nigeria (section 215 of the 1979 Constitution). Its decisions bind every authority or person in Nigeria and are by law to be enforced by all authorities, persons and courts in a subordinate capacity throughout Nigeria (section 251 of the 1979 Constitution). The Supreme Court is therefore by the expressed provisions of the Constitution in a very pre-eminent position.’
‘The sovereign powers of the State which are shared among the three arms of Government-the Executive, the Legislature and the Judiciary-by the Nigerian Constitution 1979 as amended enable such corrective processes in the interest of justice and the good of all persons in and all citizens of Nigeria. Thus, the Judicial Committee of the Privy Council has, in its advisory capacity to the Sovereign of the British Empire since the 19th century, given repeated expression of the fact that it will not be bound by the erroneous previous decisions of the court and that for good and compelling reasons it will depart from such decisions and overrule them in the interest of justice and the law. These previous decisions must be clearly shown to be (1) vehicles of injustice or (2) given per incuriam or (3) clearly erroneous in law. These previous decisions are not set aside as by then the litigation in matters to which they pertain had been brought to an end and closed. When the need to depart from them is established clearly before the court, they are however no longer followed. They are departed from and overruled. This is because it is fallacious to talk of certainty of the law in erroneous decisions. The interest of justice is served not by certainty of the law in fallacious decisions but by certainty of the law in decisions which properly apply the law and give a correct exposition of the law.’
‘The answer to the first question for determination therefore, in my view, is that there is nothing in the 1979 Constitution as amended by Decree No.1 depriving the Supreme Court of any jurisdiction to depart from and overrule its previous decisions on constitutional questions. Therefore, the Supreme Court as the Court of ultimate jurisdiction or final Court of Appeal and citadel of justice in Nigeria is at liberty to depart from and overrule its previous decisions on constitutional questions for compelling reasons which proved them erroneous. It will not do so readily or without much hesitation or in the absence of proof that the previous decisions were clearly erroneous and against the public good and welfare.’]
II. Whether in the instant appeal grounds exist which warrant a departure from the decision in the case Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Anor. (1984) 5 S.C. 79 OR Whether judgement delivered by the Court of Appeal after the statutory three months is null?
RULING: IN APPELLANT’S FAVOUR.
A. THERE ARE NO GROUNDS; AS JUDGEMENT OF A COURT MUST BE DELIVERED NO LATER THAN THREE MONTHS; IFEZUA v MBADUGHA WILL NOT HE DEPARTED FROM
[‘It seems clear that the Constitution itself sets a limit of time for the exercise of the jurisdiction to “hear and determine” appeals and any determination outside the 3 months period from the date of the conclusion of evidence and final addresses (which constitutes the hearing) is a determination without jurisdiction. I do not see how one can overlook the phrase “subject to the provisions of this Constitution.” This constitutional restraint reinforces the construction of section 258(1) by this Court that the provision is mandatory and not directory. That, in my view, settles or lays the point that any judgment delivered after 3 months from the conclusion of evidence and final addresses is a nullity at rest. It is the Constitution that gave the jurisdiction. It is the Constitution that terminated it. Without jurisdiction, a court cannot exercise its judicial powers and any such exercise is an exercise in vacuo and null and void.’
‘If the court delivers its judgment outside the 3 months limit prescribed by section 258(1) of the 1979 Constitution, then under what law does the court act in delivering its judgment outside the 3 months limit If there is a State’s law which permits it that law is in conflict with the provision of the Constitution as amended and to that extent, it is void. If there is no law authorising the act, the court has acted without jurisdiction and any act done without jurisdiction or in excess of its jurisdiction is void. The Constitution as amended by Decree No.1 is supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria.’
‘Turning to the second question, I find myself unable to hold and say that learned counsel for the respondents has succeeded in showing that the decision of this Court in Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Anor. (1984) 5 S.C. 79 was clearly erroneous, or given per incuriam shown to be occasioning miscarriage of justice and perpetuating injustice. The arguments of learned counsel for the respondents in this appeal have not differed from the submissions learned counsel made before us in Ifezue’s case although he has however brought forward and cited more authorities in support of his contention. These authorities deal with the construction of ordinary statutory provisions as to time of hearing and or in which actions on matters are required to be taken. They did not deal with constitutional provisions.’]
B. THE JUDGEMENT DELIVERED THREE MONTHS AFTER FINAL ADDRESS BY THE COURT OF APPEAL IS NULL AND VOID
[‘Having said that, I must say that the submissions of and the authorities cited and provided by learned counsel for the respondents have not provided any ground for departing from the decision in Ifezue’s case. There is substantial merit in the submission of learned counsel for the appellants that the decision of the Court of Appeal having been delivered outside the three months time limit prescribed by section 258(1) after the conclusion of evidence and final addresses is null and void.’]
‘I agree with counsel for the appellant that the facts of the instant appeal are on all fours with the facts in Ifezue’s case. This appeal succeeds and is allowed. The decision of the Court of Appeal in this matter delivered on the 10th day of March, 1983 was delivered in contravention of section 258(1) of the 1979 Constitution. The said decision together with the order as to costs is hereby set aside and the appeal remitted to the Court of Appeal for hearing de novo by a different panel. The appellants are entitled to costs in this appeal which I assess at N300.00 to be paid by the respondents.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 (as amended), which reads: “258. (1) Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”
➥ REFERENCED (CASE)
⦿ THERE ARE TIMES WHEN DEPARTURE FROM PRECEDENT IS IN THE INTEREST PF THE LAW
✓ In Bucknor Maclean v. Inlaks Limited (1980) 8-11 S.C. 1, the decisions overruled were clearly shown to become vehicles of injustice and this Court could not allow such state of affairs to continue and my late learned brother, Idigbe, J.S.C. fully gave expression to this when reading the lead judgment at page 25, he said. “I share the view of Lord Morris in Conway v. Rimmer that “though precedent is an indispensable foundation on which to decide what is the law, there may be times when a departure from precedent is in the interest of justice and the proper development of the law.” . . . I see no more justification for perpetuating recent error than for retaining any uncorrected error in much older decisions of this court.”
✓ In Golak Nath v. State of Punjab Air (1967) S.C. 1643, Subba R. CJ. (on behalf of himself, Shah, Sikri, Shelat and Vaidialingam, JJ. said at page 1670: “A final appeal is made to us that we shall not take a different view as the decision in Sankari Prasads case (1952) SCR 89-AIR 1951 S.C. 458 held the field for many years. While ordinarily this court will be reluctant to reverse its previous decisions, it is its duty in the constitutional field to correct itself as early for otherwise the future progress of the country and the happiness of the people will be at stake. As we are convinced that the decision in Sankari Prasad’s case 1952 SCR 89-(AIR 1951 S.C. 458) is wrong it is pre-eminently a typical case where the court should overrule it.
✓ Instances of this are to be found in the decisions of the Supreme Court of the United States. In Planny v. Ferguson (1896) 163 V.S. 537, the Court, in a segregation case, held that once, in public facilities accommodation was separate but equal it was constitutional to compel segregation of races in the use thereof. In Brown v. Topeka (1954) 347 V.S. 483, that is sixty years later, the court gave a decision in direct opposition to its view in Planny v. Ferguson. Times had changed and the court’s view was that attitude must change with them.
⦿ NIGERIAN CASES WHERE THE SUPREME COURT OVERRULED ITSELF
Again where there is a real likelihood of injustice being perpetuated this court has, in the recent past had occasion to over-rule itself. See Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 S.C. 1) – wherein this court over-ruled its previous decision in Shell B.P. v. Jammal Engineering (1974) 1 ALL N.L.R. 543 and Owumi v. P.Z. (1974) 1 ALL N.L.R. Part 2-on the above ground. — Irikefe, JSC.
➥ REFERENCED (OTHERS)