|
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 |