AMADOKO & ORS v. BAYELSA STATE CAPITAL CITY DEVELOPMENT AUTHORITY & ORS
(2020)LCN/14364(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/PH/34/2016
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Between
- CHIEF CLEVER AMADOKO 2. CHIEF KROMAYEBAYECANOUS 3. ELDER RICHMAN IGBANS 4. ELDER GOODNEWS AUSTIN (For Themselves And As Representing Fanghe I, Compound Of Azikoro Town Yenagoa Local Government Area Of Bayelsa State) APPELANT(S)
And
- BAYELSA STATE CAPITAL CITY DEVELOPMENT AUTHORITY 2. GOVERNMENT OF BAYELSA STATE OF NIGERIA 3. THE ATTORNEY GENERAL OF BAYELSA STATE RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “MISCARRIAGE OF JUSTICE”
Invariably, the term miscarriage of justice has been comprehensibly defined by the Apex Court:
Miscarriage of justice means a reasonable probability of more favourable outcome of a case for the party alleging it. It connotes a decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantive rights of the party.
See GBADAMOSI VS. DAIRO (2007) 1 SC (Pt. 11) 151; (2007) 3 NWLR (Pt. 1021) 282 @ 306 paragraph F); THE HISTORICAL ANTECEDENT OF THE THEORY OF MISCARRIAGE OF JUSTICE VIS–A- VIS THE PROVISIONS OF SECTION 294 (5) & (6) OF THE 1999 CONSTITUTION AS AMENDED. PER SAULAWA, J.C.A.
WHETHER OR NOT IT IS THE MAJORITY JUDGEMENT THAT IS BINDING TO THE PARTIES AND THE COURT ITSELF
Instructively, a dissenting Judgment no matter how eloquent or articulate cannot supplant the Judgment of the majority Justices on the panel which invariably is the decision of the Court. Indeed, it’s the majority judgment which is binding to the parties and the Court itself. See ORUGBO VS UNA (2002) 2 PELR 2778 (SC) PER NIKI TOBI, JSC @ 30-31 paragraphs D – G. DAGGASH VS BULAMA (2004) 14 NWLR (PT. 892) 144.
In the case of FGN VS ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 (SC), the Apex Court aptly held:
I am not unmindful of the Judgment of Ogundare, JSC, in Ibrahim’s case R Ibrahim V. JSC Kaduna State (Supra), wherein he considered the applicability of Court cases to the privilege provided in the Act. But that is a dissenting Judgment and although well founded, is not the bounding decision on the issue
Per Mohammed, JSC (as he then was) @ 196. See also AWOKUNLE VS. NEPA (2007) LPER – 8766 (CA) per Augie, JCA (as he then was) @ 13 paragraph B- F. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant Appeal is against the Ruling of the Bayelsa State High Court, Yenagoa Judicial Division, delivered on October 19, 2015 in Suit No. YHC/241/2014. By the Ruling in question, the Court below Coram Y. E. Ogola, J; held that the Appellants’ suit in question has no merits, and accordingly dismissed same.
BACKGROUND
The circumstances surrounding the instant appeal are not at all farfetched. They are indeed gleanable from the totality of the records of appeal.
Prior to the creation of Bayelsa State out of the old Rivers State in 1996, the Appellant were the statutory occupants of the Obulukpuk/Aruogene, kpaskoko and Ogbonu lands situate in the Azikoro Community. The Appellants had been exercising maximum acts of ownership over the lands in question by way of farming, building and alienation of plots of land and proceeds there from for the sustenance thereof.
However, consequent upon the creation of Bayelsa State in 1996, with Yenagoa cited as the capital thereof, the need arose for vast parcels of land to be acquired by the 2nd Respondent for the orderly
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development of the State capital. Thus, the 1st Respondent was established in 2006 and duly vested with the statutory power of acquiring land on behalf of the 2nd Respondent for the development of the State Capital in question.
The instant suit was instituted on 21/02/2014 by the 1st – 4th Appellants vide a Writ of Summons in the Court below. By the Statement of Claim thereof, filed along with the Writ of Summons, the Appellants sought declaratory and injunctive reliefs to the following effect:
1. A Declaration that by the combined operation of Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria, the Defendants are enjoined or bound to pay prompt, fair and adequate compensation to the Claimants for their Obulukpun, Aruogene, Kpaskoko and Ogbomu parcels of land acquired by them for the development of Bayelsa Capital City – Yenagoa.
2. A Declaration that the Defendants are bound by the Memorandum of Understanding entered into between the parties on the 27th of January, 2009, concerning the acquisition of the Claimants’ parcels of lands aforesaid for the development of Bayelsa Capital City – Yenagoa.
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- An Order of specific performance compelling or mandating the defendants to set aside and handover or otherwise, give to the Claimants forthwith, a total of 10.5 hectares or 226 plots of land, each measuring 464.52 Sq. metres approximately, of their aforesaid parcels of land acquired by the Defendants or in the alternative, the sum of N552 Million being compensation for their said lands acquired by the Defendants or Special and General Damages for breach of agreement.Pleadings were filed and duly exchanged by the respective parties. The suit proceeded to trial. At the conclusion of the trial, the Court below delivered the vexed Ruling on the said 19/10/15, to the conclusive effect:
“From the foregoing, it is obvious to me that this matter has no merit. It is therefore dismissed.”Dissatisfied with the said Ruling of the Court below, the Appellants filed their notice of appeal dated 28/10/15. The appeal itself was entered on 26/01/16. The Appellants’ brief of argument was filed on 07/03/16. The Respondents’ brief was deemed properly filed and served on 17/11/16. The Appellants’ reply brief was filed on 23/12/16.
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On 17/03/20, when the appeal ultimately came up for hearing, the Learned Counsel addressed the Court and adopted the argument contained in their respective briefs. Thus, resulting in reserving the Judgment.
Most particularly, the Appellants brief settled by Chief Metong B. R. Uronbo on 23/12/16, spans a total of 25 pages. At page 3 of the said brief, four issues have been couched:
1. Whether the Ruling of the Learned trial Judge is valid in law, having not been delivered within the constitutionally provided three months’ time limit and which breach undoubtedly resulted in a miscarriage of justice against the Appellants. (Ground 1).
2. In the alternative, whether upon an objective consideration of the Learned trial Judge’s Ruling and his treatment and resolution of the issues distilled by him therein, he was not biased or likely to have been so biased against the Appellants and thus vitiating or rendering void the said Ruling. (Ground 2).
3. In further alternative, whether the Learned trial Judge was right or legally justified in holding that upon the pleadings of the parties and considering the entire
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circumstances of the case before him, the Bayelsa State Government – the 2nd Respondent, was not a party to or bound by the Memorandum of Understanding in issue.
4. In the alternative, whether upon the pleadings of the parties and considering the entire facts and circumstances of the case, the Learned trial Judge was legally justified in voiding the Memorandum of Understanding between the parties and dismissing the Appellants’ case against the Respondents. (Grounds 4, 5 and 6).
The issue No. 1 is extensively argued at pages 3 of the brief. In the main, it’s submitted that the pre-trial conference in the instant matter was conducted by the Court below on 24/11/14, and written addresses were adopted on 12/03/15. Consequent upon which, the vexed Ruling was adjourned to 29/04/15. It was eventually delivered on 19/10/15.
Further submitted, that the Ruling was delivered over four months outside the time limit and seven months after the parties adopted their written Addresses. Therefore, the Court below had clearly breached the constitutionally time limit for the delivery of the vexed Ruling. See Section 294(1)
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& (5) of the Constitution of the Federation of the Federal Republic of Nigeria, 1999 as amended; AKOMA VS. OSENWOKWU (2014) 5 – 6 (Pt. 1V) 1 @ 24; ATUNGWU VS. OCHEKWU (2013) 7 SC (Pt. 11) 42 @ 68 – 70; AWOYEMI VS. ADEKOYE (2003) 12 SC (Pt. 1) 1 @ 24.
It was argued, that upon the record and the entire circumstances of the case, the breach of Section 294 (1) of the 1999 Constitution, as amended has resulted in a miscarriage of justice against the Appellants. Because (1) as a result of the inordinate delay, the Court had lost touch with the facts of the case, the cause of action and issues for determination, rather went on a voyage of discovery to make a case for the Respondent to justify dismissal of Appellants case.
Further argued, that the findings at pages 169 – 170 of the record were neither pleaded by the Appellants nor the Respondents. That the Court below has clearly lost sight of the simple case of the Appellants for specific performance of the agreement reached between the parties, and which the Respondents never repudiated before the Appellants’ suit but had rather made efforts to implement.
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It was postulated that the Court lost, track of the issues in contention distilled by it and further contradicted itself by holding that the 2nd Respondent was not a party to the memorandum therein approbating and reprobating, which it cannot do in law. SeeMOMAH VS. VAB PETROLEUM INC. (2000) 75 LRCN 502 @ 532.
In the circumstance, the Court is urged to so hold that failure to deliver the Ruling within the three months’ time limit allowed by the Constitution has occasioned a miscarriage of justice against the Appellants, annul the said Ruling, and its mace consider the pleadings and issues joined hereon, and enter Judgment for the Appellants.
The issue No. 2 is canvassed at pages 6 – 10 of the brief, to the effect that by the manner or style of writing the vexed Ruling, the resolution of the issues, and the entire circumstances of the case already show that the Court below was undoubtedly biased against the Appellants, and thereby denied them fair hearing.
The Court is urged to so hold, intervene and right the wrong, by setting aside the vexed Ruling and in its place, enter Judgment for the Appellants and grant all the reliefs sought by
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them against the Respondents.
The issue No. 3 is argued at pages 10-13 of the brief, to the effect that by the first two lines of the memorandum in question, the 1st Respondent had executed – the agreement as an agent on behalf of the 2nd Respondent as disclosed principal. See UWAH VS. AKPABIO (2014) 2-3 SCI (a) 22 IKENTA BEST (NIG) LTD VS. AG RIVESRS STATE (2008) 2-3 SC (Pt.1) 28 (a) 71. Further submitted, that the 2nd Respondent was a party to the Memorandum of Understanding in question.
The Court is urged to so hold, and accordingly resolve the Issue 3 against the Respondents.
The Issue 4 was extensively canvassed at pages 14-23 of the said brief. It was submitted, that the Court below had earlier held in its Ruling that the 1st Appellant was a party to the Memorandum and that the Secretary thereof signed it on its behalf. Therefore, the Court below as backed by that finding. See CBN VS. AMADI, (2010) 5-7 SC (Pt.1) 1 at 27-28, AMAECHI VS. INEC (2008) 1 SC (Pt.1) 36.
On the whole, it is argued that the Respondents’ attempts to resile from the said agreement through their inconsistent claims, outright lies and fabrications
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amounted to unjust and inhumane treatment of the Appellants, which the Court below ought not have allowed.
On the whole, the Court is urged upon to allow the appeal, set aside the Ruling of the Court below, and its place resolve all the issues considered by the Court below and enter Judgment for the Appellants and accordingly grant all the reliefs sought in their statement of claim.
Contrariwise, the 27 page of Respondents’ brief was settled by Preye Agedah, Esq., on 08/11/2016. It was however deemed properly file and on 17/11/2016.
Having adopted the 4 Issues canvassed by the Appellants, the Issue No. 1 is argued at pages 3-7 of the Respondents’ briefs. In the main, it is submitted that no error has been committed (by the Court below) against the Appellants as a result of the delay that denied them the victory they would have had if the delay was not occasioned. See GBADAMOSI VS. DAIRO (2007) 1 SC (Pt.11) 151; NWLR (Pt.1021) (282) at 306 paragraph F.
Copiously alluding to the findings of the Court below at pages 169-170 of the record, the Learned Counsel argued that rather than exposing lack of touch with the facts of the case,
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the passage captures the very essence of the case. See STATE VS. NCP (2013) 3-4 MJSC (Pt.1); AJE PRINTING (NIG) LTD VS. EKITI LGA (2009) 9 NWLR (Pt.14) 512.
The Court is urged to resolve Issue 1 in favour of the Respondents and dismiss the Appeal.
The Issue 2 has been argued at pages 7-12 of the brief. In a nutshell, it is argued that the allegation of bias without corresponding proof goes to no Issue in law.
Further submitted, that in the instant case, parties were given every opportunity to present their case, especially at the pre-trial session, where the issues were raised. However, it was argued that assuming though not conceding, that a wrong procedure was followed, the Appellants who consented to and participated in same cannot turn around to complain on same. SeeNASCO MANAGEMENT SERVICE LTD VS. ANAMAKU TRANSPORT LTD (1998), LPELR-6450 (CA); LPDC VS. FAWEHINMI (1985) 2 NWLR (Pt.7) 350; et al.
The Court is urged to resolve Issue 2 in favour of the Respondent and dismiss the appeal.
The Issue 3 is canvassed at pages 12-19 of the said brief. In the main, it is argued copiously alluding to the provisions of Sections, 5, 9 and 11 of the Bayelsa State Capital Development Authority Laws 2006
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and 2009 as amended, that the 2nd Respondent was not a party to or bound by the Memorandum of Understanding purportedly entered into by the Executive Secretary of the 1st Respondent. See AZUBUIKE VS. GOVERNMENT OF ENUGU STATE (2014) 5 NWLR (Pt. 1400) 364 at 392 paragraphs D – F.
The Court is urged to resolve the issue 3 in favour of the Respondents.
Lastly the issue No. 4 has been argued at pages 20 – 26 of the said brief. Copiously alluding to the provision of Section 128 of the Evidence Act, Cap E14, 2011, it is argued that the Court below was justified to void the MOU because it was void ab initio and that there was no obligation, binding the 2nd Respondent who appointed the 1st Respondent and set up law to regulate disoperation.
The Court is urged to resolve the said issue 4 in favour of the Respondents. On the whole, the Court is urged to dismiss the appeal.
In reaction to the Respondents’ brief, the Appellants deemed it appropriate to file a reply brief on 23/12/2016. That reply brief, settled by Chief Metong B.R. Urombo, spans a total of 24 pages.
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By the totality of the Appellants’ argument canvassed in the said reply brief, the Court is urged upon to accordingly discountenance the Respondents’ argument contained in the brief thereof, and enter Judgment for the Appellants.
Having amply considered the nature and circumstances surrounding the instant appeal, the argument canvassed in the parties’ respective briefs of argument vis-a-vis in the record of appeal as a whole, I am inclined to adopting the 4 issues canvassed by the Appellants for the ultimate determination of the appeal.
ISSUE NO. 1
The first issue raises the very vexed question of whether or not the Ruling of the Court below is valid in law having not been delivered within the constitutionally provided three months time limit; and which breach undoubtedly resulted in a miscarriage of justice against the Appellants. The issue 1 is distilled from ground 1 of the Notice of Appeal.
Undoubtedly, the starting of point is Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, which provides: –
294(1). Every Court established under this Constitution shall delivered its decision in writing
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not later than ninety days after the conclusion of evidence and final address and furnish all parties to the cases or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground non-compliance with the provisions of Section (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that all party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding a case in which it has been determined and observed that there was non-compliance with the provisions of Subsection (2) of this Section the person presiding at the sitting of the Court shall send a report or the case to the chairman of the National Judicial Council in order shall keep the Council informed of such action as the Council may deem fit.
Against the backdrop of the following salient provisions of Section 294 (1) (5) and (6) of the 1999 Constitution as amended (supra), it is obvious that a party is not required to merely
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institute an appeal on the ground that the decision or order he desires to be set aside was delivered outside the 90 days statutory time limit.
Undoubtedly, he would have an uphill task to seek to have the decision be set aside on more solid grounds rather than merely relying on assessment of facts. Invariably, with good and substantial grounds of appeal, a party may not necessarily need to rely upon a ground of non-compliance with the provision of Section 295 (5) of the 1999 Constitution (supra), unless he is desirous of subjecting the Judge (or justice as case may be) to the disciplinary procedure in accordance with the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, 2016.
By the Code of Conduct for Judicial Officers (supra), a Judge is under an onerous duty to accord fidelity to the Constitution (supra) and the law. Most particularly, Rule 3 of the Code of Conduct of Judicial Officers (supra) requires:
3.1 A Judicial Officers should be true and faithful to the Constitution and the law uphold the course of justice by abiding with the provisions of the Constitution and the law and should acquire and maintain
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professional competence.
3.4 A Judicial Officers shall ensure strict compliance with the provisions of the Constitution which requires that a copy of Judgment of the Supreme Court of Record be given to parties in the cause within seven days of the delivery therefore (Section 294 (1) of the Constitution).
3.7 A Judicial Officers should promptly dispose of the business of Court. To achieve this, the Judicial Officer is to devote adequate time to his duties be punctual in attending Court and expeolitious on determining matters in Court. Unless ill or unable, for good reason to come to Court, a Judicial Officer must appear regularly for work, avoid tardiness and maintain official hours of the Court (Section 294 (5) of the Constitution).”
In the case of AKOMA VS. OSENWOKUSU (2014) LPELR – 22885 (SC), the apex Court aptly held:
The delay per se does not lead to a “Judgment being vitiated or nullified. The delay must occasion a miscarriage of justice of justice to in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper
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advantage of having seen or heard the witnesses to, testify or that he had lost his impressions of the trial due to such inordinate delay.
Per Galadima, JSC @ 30-32 paragraphs C-A. See also OWOYEMI VS. ADEKOYA (2003) 12 SC (Pt.1) 1, AKPAN VS. UMOH (1999) 7 SC (Pt.11) 13.
By the combined effect of the provisions of Section 294(5) of the 1999 Constitution (supra), any failure to deliver a decision within the stipulated limitation period of 90 days ought not to automatically render the proceedings or decision of the Court a nullity and void. Undoubtedly, the nullity theory would only come into play where the appellate Court seized of the appeal is duly satisfied that the aggrieved party complaining of non-compliance has evidently suffered a miscarriage of justice by reason of non-compliance with Section 294 (1) of the 1999 Constitution (supra). See AKOMA VS. OSENWOKWU (supra), ONAGORUWA VS. THE STATE (1993) 7 NWLR 49 @ 109; OLOKOTINTIN VS. SARUMI (1997) NWLR 222.
Invariably, the term miscarriage of justice has been comprehensibly defined by the Apex Court:
Miscarriage of justice means a reasonable probability of more favourable outcome of a
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case for the party alleging it. It connotes a decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantive rights of the party.
See GBADAMOSI VS. DAIRO (2007) 1 SC (Pt. 11) 151; (2007) 3 NWLR (Pt. 1021) 282 @ 306 paragraph F); THE HISTORICAL ANTECEDENT OF THE THEORY OF MISCARRIAGE OF JUSTICE VIS–A- VIS THE PROVISIONS OF SECTION 294 (5) & (6) OF THE 1999 CONSTITUTION AS AMENDED.
In my considered view, the genesis of the theory of miscarriage of Justice vis a vis the provisions of Section 294 (5) and (6) of the 1999 Constitution as amended (Supra), is traceable to the decision of the Supreme Court in the notorious case of CHIEF DOMINIC ONUORA IFEZUE VS. LIVINUS MBADUGHA (1984) LPELR 1437 (SC), delivered on 18/05/1984.
The background facts, of that case relevant to the instant appeal, are that on 23/03/1981, the appeal from the State High Court came before this Court, Enugu Judicial Division Coram: Aseme, Belgory & Olatawura, JJCA. The respective Counsel argued the appeal, which was however adjourned to 26/03/1981 for continuation of hearing. On the 26/03/1981 in question, this Court
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adjourned for Judgment and accordingly ordered thus: “Judgment reserved”.
Curiously, nothing was heard of the appeal until on 29/11/1981, when the Court’s records showed that it was reserved on that day before their Lordships. The appeal was then further adjourned to 16/11/1981. But instead of delivering the long awaited Judgment, this Court ordered thus:
Appeal is reopened and Learned Counsel are asked to address the Court whether Order of non-suit is desirable in the circumstances of this case.
It ought to be noted, that as on the said 16/11/1981, the undelivered reserved Judgment had clocked 7 months and 3 weeks away from the date on which the appeal was reserved for Judgment on 26/03/1981. Yet, by virtue of the provisions of Section 258 (1) of the defunct Constitution of the Federal Republic of Nigeria, 1979:
Every Court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and trial addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of delivery thereof.
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Most interestingly, the question that fundamentally posed itself was:
Had the Court (of Appeal) the power indeed, the jurisdiction to “reopen” the appeal after the three months stipulated in the Constitution for the delivery of Judgment?
The Learned Counsel to the respective parties after the “reopening of the appeal, put forward fresh arguments, thereby adopting their earlier arguments. Most particularly, Mr. Okolo Esq., for the Defendant/Appellant, urged upon the Court to dismiss the plaintiffs (Respondents) case and allow the appeal. Contrariwise, Dr. Ume for the Plaintiff/Respondent, urged the Court to uphold the Judgment of the trial Court and dismiss the appeal. Where upon, this Court immediately after the address of the Learned counsel to the respective parties delivered its Judgment and non-suited the Plaintiff.
Not surprisingly, the Plaintiff did not take kindly to the Judgment of this Court, thus appealed to the Supreme Court upon a total of 11 grounds of appeal. Ground 1 is the most relevant to the issue under discussion:
GROUND 1 ERROR IN LAW
The Learned Justices of the Federal Court of Appeal erred in law by
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giving (sic) Judgment in this case contrary to Section 258 of the Constitution of the Federal Republic of Nigeria, 1979.
PARTICULARS OF ERROR
i. The Learned Justices of the Federal Court of Appeal after argument and reply by Counsel for both parties on 23/3/81 and 26/3/81 respectively, adjourned the case for Judgment. No Judgment was given within the constitutional stipulated period of three months.
ii. After the said period, the Learned Justices continued with the case and give Judgment on the 23rd day of November, 1981, non suiting the Plaintiff/Appellant contrary to the views openly expressed by the Learned Justices on the day when Counsel were concluded.
iii. The delay in delivering the Judgment operated adversely against the interest of the Plaintiff/Appellant and affected the justice of the case.
iv. Throughout the proceedings before the said adjournment for Judgment, the question of non-suit was never raised either by the Court or any of the parties. Counsel were not asked to address the Court on the issues or point.
In the course of the hearing of the appeal, the Apex Court deemed it expedient to extend invitation to
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eminent senior Counsel to address it as amicus curial on the novel issue in regard to Section 258 (1) of the 1979 Constitution (Supra). For the purpose of the appeal, all the Learned Senior Counsel, including Chief FRA Williams SAN, who had the singular honour and privilege of appearing by leave of the Apex Court, as Amicus Curiae, joined issue on the interpretation of the said Section 258(1) of the 1979 Constitution.
Delivering the majority decision of the Supreme Court Aniagulu, JSC, alluded to the historical setting preceding the enactment of Section 258 (1) of the 1979 Constitution, that some Judges became notorious for very long adjournments of Judgments resulting in deprivation of advantage of forming fair impressions of witnesses and evaluation of evidence. SeeR. ARIORI VS. ELEMO (1983) 1 SC.
Having accorded a painstaking consideration of the nature and circumstances surrounding the appeal, the elucidative submissions of the Senior Counsel vis-a-vis the plethora of authorities referred to therein his Lordship, Aniagulu, JSC came to the following conclusion:
Finally, having regard to all the foregoing, I am firmly on the view that on a
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proper construction, the words of Section 258 (1) of the Constitution, having regard to the mischief intended to be prevented, the 1979 Constitution required that Judgment of the Court of Appeal in this matter be delivered within three months of its being “reserved” by that Court, after the hearing of the appeal and that failure to do so invalidated the so called Judgment after that period. The appeal must be allowed and is hereby allowed. The so called Judgment is declared null and void, and for the avoidance of doubt in hereby set aside. The appeal is remitted to the Court of Appeal before a different panel for hearing and determination, according to law. The Appellant is entitled to the costs of this appeal which are assessed N300.00.
In full concurrence with the lead-Judgment of Aniagolu, JSC were Irikefe, JSC (as he then was) Obaseki, JSC, Eso, JSC, Nnamani, JSC and Uwais, JSC (as he then was), respectively.
Contrariwise, however, Bello, JSC (as he then was), deemed it expedient to dissent thus:
“Bello JSC: With all due respect, I am unable to agree with the decision of my Learned brothers that the Judgment of the Court of
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Appeal delivered in breach of Section 258(1) of the Constitution is null and void and the Court of Appeal has to start all over again to hear and determine the appeal afresh. The argument that the Court of Appeal is not bound by the provisions of the sub- section may be summarily dismissed.”
Having extensively considered the circumstances surrounding the appeal vis a vis the Learned Counsel’s argument thereon, Bello, JSC arrived at the conclusion in the dissenting Judgment thereof, to the following effect:
As regards the first limb of the subsection (Section 258 (1) of 1979 Constitution) I do not think, its being construed mandatory would be a deterrent to its breach by Judges. I do not think a conscientious and responsible Judge will disregard the Oath of his office to which he swore to … without cause deliberately commit a breach of the subsection. Situation, however, occur after he has reserved Judgment in a case such as illness or unexpected event beyond his control or mere error in the 3 months period which will cause the Judge to commit the breach. If the subsection is mandatory, then the case must be tried de novo even if
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the Judge would be out of time by one day only. The consequences of such breach in terms of inconveniences to the parties and their witnesses, extra costs of litigations, in the case of criminal cases. The additional anxiety caused to the accused and the public expenditure to be incurred are very grave. It seems to me from the foregoing, to construe the subsection mandatory will not promote but will frustrate its object and purpose. Instead of being a vehicle for expeditious administration of justice, it will be a shackle to the administration of justice and hinder its speed with the consequential inconveniences and inflation in the costs of litigation. On the other hand to construe the subsection directory will be a panacea for all the malaise and ills of its mandatory meaning. These are the reasons that induce me to put directory meaning to the subsection. Accordingly, I hold that the Judgment of the Court of Appeal delivered in breach of the first limb of Section 258 (1) of the Constitution is valid.
Instructively, a dissenting Judgment no matter how eloquent or articulate cannot supplant the Judgment of the majority Justices on the panel which
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invariably is the decision of the Court. Indeed, it’s the majority judgment which is binding to the parties and the Court itself. See ORUGBO VS UNA (2002) 2 PELR 2778 (SC) PER NIKI TOBI, JSC @ 30-31 paragraphs D – G. DAGGASH VS BULAMA (2004) 14 NWLR (PT. 892) 144.
In the case of FGN VS ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 (SC), the Apex Court aptly held:
I am not unmindful of the Judgment of Ogundare, JSC, in Ibrahim’s case R Ibrahim V. JSC Kaduna State (Supra), wherein he considered the applicability of Court cases to the privilege provided in the Act. But that is a dissenting Judgment and although well founded, is not the bounding decision on the issue
Per Mohammed, JSC (as he then was) @ 196. See also AWOKUNLE VS. NEPA (2007) LPER – 8766 (CA) per Augie, JCA (as he then was) @ 13 paragraph B- F.
In the instant case, the Appellants have alleged that the Court below had lost touch with the facts of the case thereby went on a voyage of discovery. Most particularly, the findings of the Court below at pages 169-170 of the record are to the effect:
The Background history of the matter is that at the creation
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of Bayelsa State, the Government of Bayelsa State compulsorily acquired a large portion of land belonging to the claimants and paid compensation. That fact is not in issue. However, the claimant felt at a point that they were not adequately compensated and so pleaded for allocation of government land to enable them farm, build etc. as they have no land again to do any of these for a long time now there has been a back warding and forwarding between them and the Defendants on the matter. Eventually claimants filed this action against the Defendants urging them to implement agreements reached between them saying that Defendants are bound by the agreement.
As aptly posited by the Respondents’ Learned Counsel, rather than exposing a lack of touch with the facts of the case, the foregoing findings of the Court below crystally capture the very essence of the facts and circumstances surrounding the case leading to the instant appeal. See OSUN STATE INEC VS. NCP (2013) 3-4 MJSC (Pt.1); AJE PRINTINGS (NIG) LTD VS. EKITI LGS (2009) NWLR (Pt.41) 512.
Indeed, the fulcrum of the instant appeal crucially revolves around the controversial MOU vis a vis the
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execution of the contents thereof. Thus, the Court below, rather than having to traverse the course of a regular trial, formulated the issues for the respective parties to address it thereupon with a view to simplistically concluding the matter. This scenario was evidently captured at pages 169C last paragraph to 170 (lines 1-20) of the Record of Appeal, where the Court below stated in the vexed Ruling thus:
For a long time now there has been a backwarding and forwarding between the Defendants on this matter. Eventually claimants filed this action against the Defendants urging them to implement agreements reached between them saying that Defendants are bound by the agreement.
The matter just came up for mention on 30/9/2014 and eventually progressed to pre-trial conference on the 24th November, 2014.
At the end of the pre-trial conference, it was agreed by both parties for this Court to determine the following issues:
1. Whether the 2nd and 3rd Defendants were properly joined in this suit or in the alternative whether the Memorandum of Understanding in issue was executed between the Claimants and the Executive Secretary of the 1st
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Defendants or between the Claimants and the 2nd Defendants.
2. Whether the signature of the Executive Secretary CCDE on the Memorandum in issue is truly that of Ebiowei Doukpolagha or forged as claimed by the Defendants.
3. Whether the Executive Secretary had the powers to enter into the Memorandum of Understanding if his signature on the documents were not forged.
4. If the memo was valid, can Government or the CCDA resile from the contractual obligations.
The parties had the opportunity of duly addressing the Court below on the foregoing four issues. Thus, there ought not to be any basis whatsoever for a breach of fair hearing of the respective parties herein.
In the circumstance, the answer to the first issue ought to be in the negative, and same is hereby resolved against the Appellants.
ISSUE NO. 2
The second issue raises the very crucial question of whether or not upon an objective consideration of the vexed Ruling of the Court below and the treatment and resolution of the issues distilled therein, the Court was not biased or likely to have been so biased against the Appellants, thus vitiating or rendering the Ruling void.
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The term ‘bias’ has been defined as an inclination, predisposition, or preparation to determine a matter, action or cause in a certain pre-conceived way, without any due regard to laid down principles, procedure or law. Bias, as the term goes, may be attributable to variety of factors, including corruption, vengeance, partisanship, friendship or association. See AZUOKWU VS. NWOKANMA (2005) 11 NWLR (Pt. 937) 537 per Kalgo, JSC at 551 paragraphs D-E; ANPP VS. THE RESIDENT ELECTORAL COMMISSIONER (REC), AKWA IBOM STATE (2008) LPELR-8322 (CA) per SAULAWA, JCA at 63 paragraphs C-F.
In the locus classicus, REX VS. SUSSEX JUSTICES EXPARTE MCCARTY (1924) 1 KB 256, Lord Hewart C.J. was reputed to have enunciated the immutable doctrine:
It is not merely of some importance that justice should not only be done; but should manifestly and undoubtedly be seen to be done.
Per Lord Hewart, CJ @ 259.
In the instant case, as amply postulated herein above, the Court below had commendably accorded the respective parties ample opportunity to ventilate their divergent grievances by addressing the Court on the four issues formulated with the
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consent thereof. Consequent whereupon, the Court below in a considered Ruling carefully appraised the argument of the respective parties, thereby coming to the conclusion:
I have said the memo was void ab initio because in it the Capital City Development Authority Executive Secretary. Hon Doukpolagha tried to exercise a power he did not have the CCD. A call therefore resiles from the Memorandum of Understanding.
From the foregoing, it is obvious to me that this matter has no merit. It is therefore dismissed.
The parties counsel in the present case have willingly consented to address the Court on the basis of the four issues in question, consequent upon which the Court delivered the vexed Ruling resulting in dismissing the Appellants’ suit for lack of merits. Thus, the Appellants cannot now be heard disparaging the Court on ground of bias having willynilly participated in the proceedings of the Court. Yet, it is trite that a party who consented to a purported wrong procedure by a Court is precluded from challenging that procedure. See OLUBODE VS. SALAMI (1985) 2 NWLR (Pt.7) 282; AKHIWU VS. THE PRINCIPAL LOTTERIES OFFICER MID WISTERN STATE
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(1972) 1 ALL WLR (Pt.1) 229; COLONY DEVELOPMENT BOARD VS. ILAMSON (1955) 2 NLR 75.
Contrariwise, in the present case, the Appellants have not only resiled from the purported wrongful or irregular procedure they willingly consented to, but alleged that the Court below was biased on the simplistic ground that the outcome of the vexed decision was not favourable to thereto. That’s to say, had the decision turned out to be favourable to them, the Appellants would have had no cause to accuse the Court below of bias.
In the circumstances, the answer to the second issue ought to be in the negative, and same is hereby resolved against the Appellants.
ISSUE NO. 3
The third Issue raises the vexed question of whether or not the Court below was right or justified in holding that, upon the pleadings of the parties and the circumstances of the case, that the 2nd Respondent was not a party to or bound by the Memorandum of Understanding (MOU) in issue.
In my considered view, the instant third issue is the crux of the case. The Memorandum of Understanding (MOU) in question is contained at pages 20-21 of the record:
BAYELSA STATE GOVERNMENT
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OF NIGERIA
CAPITAL CITY DEVELOPMENT AUTHORITY
Sani Abacha Way, By Imgbi/Swali Road Roundabout
P.M.B. 146, Yenagoa, Bayelsa State. Tel/Fax: +234-89-490788
MEMORANDUM OF UNDERSTANDING
By this Memorandum of Understanding entered into this 27th day January, 2009 between the Bayelsa State Government of Nigeria Capital City Development Authority of Sani Abacha Express Way by Imgbi/Swali Road Roundabout, Yenagoa and Fanghe 1 Compound of Azikoro Community, Yengoa Local Government Area of Bayelsa State, it is hereby acknowledge and agreed as follows:
1. The Authority and indeed the Government recognize the contributions made by Fanghe 1 Compound towards the development of the Capital City by way of provision of land.
2. The Authority and indeed the Government appreciate the difficulties and incontinences that the Compound will and experience in terms of lack land for their farming, building and other purposes and the need to as much as possible, ameliorate and remedy these inconveniences and hardship.
Consequently, it is hereby agreed and understood amongst the parties as follows:
1. That 15% of the… Hectares of
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Fanghe 1 Compound’s Obulukpun/Aruogene lands, situate along Bayelsa Palm Road Yenagoa, will be set aside and handed over to the Compound for their own use and development.
IN WITNESS WHEREOF the parties hereto have affixed their lands and seals the day and year first above written.
SIGNED, SEALED and DELIVERED by the parties through their representatives:
… …
Hod. Ebiowei Doukpolagha Chief Kroms Canus
Executive Secretary (Compound Head)
(For: BCCDA) (For: Fanghe 1 Compound)
In the presence of:
Name: …
Signature: …
Address: …
Occupation: …
By virtue of the provisions of Section 128 of the Evidence Act, 2011, neither a party nor the Court has the liberty or discretion to read into a contract agreement, or any other written document what is extraneous thereto. See KOIKI VS. MAGNUSSON (1999) 5 SC (Pt. 111) 30 at 56; BABA VS. NCAC (1991) 5 NWLR (Pt.192) 388.
By virtue of Annexture A the MOU, the agreement was entered in to between the 1st Respondent (as an agent of the 2nd Respondent) and the Appellants. The preamble and paragraphs 1 and 2 of Annexture A, the MOU, are very much clear
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in regard to the nature and circumstances surrounding the genesis of the dispute between the Appellants on the one hand, and the 1st and 2nd Respondents, on the other.
At page 173 (lines 21-31) of the Record, the Court below in the course of determining issue No. 1 came to the following conclusion:
COURT:
My own understanding of the wordings of the memorandum of understanding in question is that it is purely a document between the CCDA and the Claimants. The wording does not incorporate the State Government as a party to the memorandum. By the words, “Bayelsa State Government of Nigeria a Capital City Development Authority of Sani Abacha Express Way, by Imgbi/Swali Road Round About” what the parties meant was “The Capital City Development Authority of Bayelsa State located among Sani Abacha Express way by Imgbi Swali Road about Yenagoa.”
I would like to think that the CCDA cannot enter into agreement on behalf of the State Government without the prior approval of the State Government. The Attorney General’s office must be the main party to such agreement. The reference in the 1st and 2nd paragraphs of the memo to
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Government is indeed reference to the CCDA and not the State Government.
In respect of the argument about joinder, let me say it will become clearer, when I deal with the next issues.
Regrettably, the foregoing findings of the Court below are far from being cogent and unassailable having regard to the circumstances surrounding the case, the evidence on record vis-à-vis the trite fundamental principles in relation thereto.
It is not at all controversial, that by the wordings of Annexture A, the memorandum of understanding in question (MOU), the 1st Respondent executed the mutual agreement on behalf of a disclosed principal thereof, the 2nd Respondent. In law, by the mere incorporating of the 1st Respondent as the agent of the 2nd Respondent in a contract or agreement (such as Annexture A) the 2nd Respondent is deemed a proper party thereto until he either repudiates or disclaims the agent’s authority to so enter into the contract on behalf thereof upon being made aware of the agreement. This trite proposition has been reiterated in a plethora of formidable authorities. See UWAH VS. AKPABIO (2014) 2-3 (sc) 1 @ 22.
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In the instant case, it is not the case of the Respondents most especially the 2nd Respondent, that prior to the instituting of the vexed suit the 2nd Respondent had repudiated the MOU (Annexture A) or disclaimed the 1st Respondent’s authority to enter into the said agreement on behalf thereof. For the avoidance of any lingering doubt, the fact of repudiation of contract or authority of an agent to enter in to an agreement on behalf of his principal, must be clearly pleaded and proved by the principal. Thus ought not be speculated upon, as Courts of law are precluded from predicating their decisions upon mere speculation or whims and caprices. See IKENTA BEST (NIG) LTD VS. AG. RIVERS STATE (2008) 2 – 3 SC. {Pt. 1} 28 at 71.
What’s more, was pleaded by the Appellants in paragraphs 19 – 24 of the Statement of Claim thereof (pages 6 – 8 of the Record) thus: –
19. The Claimant aver that following above development and their protest through their letters aforesaid, the 1st and 2nd Defendants, through 1st Defendant, entered into a Memorandum of Understanding with them in line with the general practice all over Nigeria, designed to ameliorate
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the losses and damages of occupants of lands so acquired by Government for public purposes, by reallocating a part or percentage of the land so acquired to their original owners or occupants.
20. By the term of the said Memorandum of Understanding executed by the parties on the 27th of January, 2009, the Defendants agreed and undertook to allocate 15% of all lands so acquired from them by the Defendants to the Claimants. The Memorandum of Understanding is hereby pleaded.
21. Claimants aver that in partial fulfillment of its obligations under the terms of the Memorandum aforesaid, by its letter Reference No. BSL/CCDA/1085/3 dated the 21st of June, 2011, the 1st Defendant allocated Plots 008 and 009 of the Azikoro Low Density Residential Layout to the 4th Claimant, while by its similar letter with Reference No. BSL/CCDA/1086/3 dated 21st of June, 2011, the 1st Defendant allocated plots 021, 022, 023 and 024 of Azikoro Low Density Residential Layout to the Claimants while nothing was said by it about the remaining component of the 15% due to them.
22. In breach of the parties said Understanding, the Defendants refused or failed to hand over the
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plots so allocated to the Claimants by the 1st Defendant’s letter of the 21st day of June, 2011 to them as the plots purportedly so allocated, turned out to be a developed or built up part of Azikoro Community.
23. Consequently and after persistent demands and protests by the Claimants, on the 14th of February, 2012, by its letters with Reference Nos. BSL/CCDA/1085/3 and BSL/CCDA/1086/4 respectively, the Defendants cancelled the previous allocations and in their places now allocated Plots 038 and 039 to the 4th Claimant and Plots 093, 094, 095 and 096 to the Claimants respectively. The Letters of Allocation are hereby pleaded.
24. The Claimants further aver that despite the reallocation aforesaid, up till the 15th of May, 2012, the Defendants refused or failed to hand over even the reallocated plots of land to the Claimants, which prompted them to write another letter of protest and demand to the 3rd Defendant dated the 16th of May, 2012 and thereafter, when their demands were still not met, a reminder on the 18th of December, 2013. The said letters are hereby pleaded.
The foregoing paragraphs 19 – 24 of the Appellant’s
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statement are clearly to the unequivocal effect that upon the said Annexture A (the MOU) in partial fulfillment of their obligation thereunder of allocating 15% of their acquired land, the Appellants filled Allocation of Land Forms resulting an issuing them with letters of Allocation by which the Respondent allocated some plots of the said land to the Appellants.
Interestingly, the Respondents neither denied nor controverted the said Appellants’ averments. Consequent upon the execution by the respective parties thereto, there has been series of correspondences between the Appellants on the one hand and the Respondents on the other. The Appellants wrote several letters to, and had several meetings with, the 2nd Respondent vide the 3rd Respondent without any objection from any of the Respondents, thereby deciding the legal capacity of the 1st Respondent to enter in to the agreement (Annexture A) with the Appellants.
Most importantly, the Governor of Bayelsa State (the alter-ego of the 2nd Respondent) validated the said Annexture A by approving the allocation of the said plots of land to the Appellants in conformity therewith. Undoubtedly, by the
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trite doctrine of privity of agency, having ratified the said Annexture A (the MOU), the 2nd Respondent has cloaked itself with the garb of the principal party thereto.
By the attitudinal disposition of the Respondents as depicted by records of appeal, the 2nd Respondent is not only a partly to the Exhibit A (MOU) but fundamentally bound by the terms and obligations stipulated therein. Most unfortunately, however, it has become so obvious, that the Respondents are desperately seeking a lee-way to resile from and avoid liability under the MOU (Annexture A) they so willingly entered in to. The Court has an onerous duty to stand its ground and uphold the rule of law.
In the circumstances the third issue ought to be answered in the negative and it is hereby resolved in favour of the Appellants.
ISSUE NO 4
Lastly, but not the least, is the fourth issue which raises the vexed question of whether or not considering the pleadings of the respective parties and the facts and circumstances of the case, the Court below was justified in voiding the memorandum of understanding between the respective parties, thereby dismissing the Appellants’
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case. The fourth issue is distilled from issues 4, 5 and 6 of the notice of appeal.
Ordinarily, the present fourth issue could have been subsumed under the third issue. In my considered opinion, having answered the third issue in the negative, thereby resolving same in favour of the Appellants, there is no gain-saying the fact that the fourth issue ought equally to be resolved in their favour. I would want to adopt the reasoning postulated under the third issue in aid of my further reasoning under the current issue 4.
There is no controversy at all, that the 1st Respondent was a child of necessity created by the 2nd Respondent under the Bayelsa State Capital Development Authority Law, 2006. By virtue of the said law, especially under Section 9 (2) (a), the 1st Respondent was duly mandated and authorized to acquire land on behalf of the 2nd Respondent for the purpose of the development of the Bayelsa Capital City. The 1st Respondent, in the course of carrying out and executing that authority and mandate, was required to pay compensation to the numerous indigenous land owners, such as the Appellants, the amount equivalent to fair market value of the
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land acquired for the said purpose.
Under Sections 5 and 7 of the said Bayelsa State Capital City Development Authority Law, 2006 (supra), the Executive Secretary of the 1st Respondent as the Chief Executive Officer (CEO) thereof, has the authority and mandate of being in charge of the day-to-day execution of the administration thereof. He equally has authority and power to execute agreements on behalf of the 1st Respondent vis-a-vis the 2nd and 3rd Respondents, towards attaining the overall objects of Government.
As copiously alluded herein above, the Court below has acknowledged, and indeed found as a fact (page 173 of the Record), that the 1st Respondent was a party to and as the Executive Secretary thereof, duly signed the said MOU (Annexture A) as a party thereto. That being the case, therefore, the Court below ought to be bound by the said finding, which is in conformity with the pleadings and evidence on record. See AMAECHI VS. INEC (2008) 1 SC (Pt.1) 36 CBN VS. AMADI (2010) 5-7 SC (Pt.1) 1 @ 27-28.
In the circumstances, I am unable to appreciate let alone uphold, the finding of the Court below, to the effect that the 1st Respondent
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can not enter into an agreement on behalf of the State Government without prior approval of the State Government.
And I so hold. The said fourth issue ought to be answered in the negative, and same is equally hereby resolved in favour of the Appellants.
Hence, against the backdrop of the resolution of the third and fourth issues in favour of the Appellants, there is no gainsaying the fact that the instant appeal grossly succeeds in part, and it is hereby accordingly allowed in part by me.
The Ruling of the High Court of Bayelsa State holden at Yenagoa, on October 19, 2015 in suit No. YHC/241/2014 by Y.E. Ogola, J., is hereby set aside.
CONSEQUENTIAL ORDERS
By the notice of appeal thereof, dated October 28, 2015, the Appellants have sought the following reliefs:
That the Ruling of the High Court of Bayelsa State be set aside and in its place, Judgment be entered for the Appellants, resolving the four issues distilled by the trial Court against the Respondents and consequently granting them all the Reliefs sought upon their statement of claim against the Respondents.
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Accordingly, it is hereby ordered as follows:
1. The Ruling of the High Court of Bayelsa State holden at Yenagoa, delivered on October 19, 2015 in Suit No. YHC/241/2014 by Y.E. Ogola, J., is hereby set aside.
2. That Judgment is hereby entered for the Appellants (Plaintiffs) against the Respondents (Defendants), thereby granting all the 3 Reliefs sought in their Statement of claim against the Respondents, jointly and severally as follows:
1. A Declaration that by the combined operation of Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria, the Defendants are enjoined or bound to pay prompt, fair and adequate compensation to the Claimants for their Obulukpun, Aruogene, Kpaskoko and Ogbomu parcels of land acquired by them for the development of Bayelsa Capital City – Yenagoa.
2. A Declaration that the Defendants are bound by the Memorandum of Understanding entered into between the parties on the 27th of January, 2009, concerning the acquisition of the Claimants’ parcels of lands aforesaid for the development of Beyelsa Capital City – Yenagoa.
3. An Order of specific performance compelling or mandating the Defendants to set aside and handover or otherwise,
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give to the Claimants forthwith, a total of 10.5 hectares or 226 plots of land, each measuring 464.52 Sq. metres approximately and representing 15% of the 69.8982 or 70 hectares approximately, of their aforesaid parcels of land acquired by the Defendants or in the alternative, the sum of N552 Million being compensation for their said lands acquired by the Defendants or Special and General Damages for breach of agreement.
4.There shall be no order in regard to costs.
Before placing the very last dot to this Judgment, I have deemed it imperatively expedient to allude to the fact that by dismissing the Appellants’ case on sheer ground of lack of merits, the Court below had embarked upon a voyage of gross impunity- what the House of Lords (now Supreme Court) of England once characterized as an exercise of a crooked cord of discretionary power. Indeed, that was in the case of PETTITT VS PETTITT (1970) AC. 777, where in it was held:
To use the language of coke this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met-ward of the law.
Per Hordson @ 808.
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Most interestingly, Lord Hodson’s somewhat unsavoury remark was a reaction to Lord Denning, master of Rolls’ eloquent but rather too radical a dictum enunciated in the case of HINE VS HINE (1962) 1 WLR, 1124, wherein he stated:
It seems to me that the jurisdiction of the Court over family assets is entirely discretionary. Its discretion transcends all rights legal or equitable and enables the Court to make such Order as it thinks fit. This marks, as I understand it that the Court is entitled to make such order as may be fair and just in all the circumstance of the case.
Per Lord Denning, Master of Rolls, @ 1127.
Most unfortunately in the instant case, the Court below was so much in a haste to dispose of the matter before it, there by resulting in wantonly truncating the citizens’ (Appellants) right to have their case fairly and justly determined within a reasonable time. As aptly once admonished by the Apex Court:
Delay of Justice is bad but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice.
See CEEKAY TRADERS LTD VS. GENERAL MOTORS COY LTD.
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(1992) LPELR 834 (SC), per Olatawura, JSC @ 47 paragraphs B – E.
Undoubtedly, the Courts of law in this Country and indeed all other countries on this planet Earth, have a constitutional and divine duty to the citizens to maintain and uphold the rule of law. Indeed, the law is even handed between the Government and the citizen alike. See GOVERNMENT OF LAGOS STATE VS OJUKWU (1986) 1 NWLR (PT. 18) 621.
The Legendary philosopher Cicero, was reputed to have echoed over 2000 years ago:
“Amid the clash of arms, the law is silent.”
However, Lord Atken , that courageous legendary jurist of all time, had barely seven decades ago cherishingly countered Cicero’s echo, thus:
In this Country (England) amid the clash of arms, the laws are not silent. They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the Judges are not respecter of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law.
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See LIVERSIDGE VS AANDERSON (1942) AC 20, per Lord Atken @ 244.
Most interestingly, Lord Denning informed us that when Lord Atken made those golden and rather immutable remarks, bombs were flying all over London. According to the legendary jurist of all time:
(It) was the time of the flying bombs. On one occasion in the basement after lunch, two witnesses turned up to give evidence – their faces cut by splinters from the bombs. One morning I got to my room in the Court and found the windows blasted and broken glass everywhere. At home back in cuck-field, we were in the flight path of enemy bombers. They dropped their unused bombs on to us. One afternoon we had a grand stand view of the first flying bomb shot down by a spitfire. We carried on as usual of course. As Lord Atkin said in LIVERSIDGE V ANDERSON (1942) AC 206 @ 244:
“In this Country, amid the clash of arms, the laws are not silent; they may be changed, but they speak the same language in war as in peace.”
See LORD DENNING: THE DUE PROCESS OF LAW, OXFORD UNVERSITY PRESS FIRT PRINT 1980, REPRINTED – 2012, @ 188 – 189.
And I am now done!
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TUNDE OYEBANJI AWOTOYE, J.C.A.: I was opportuned to read in advance the draft of the judgment Just delivered by my learned brother I. M. M. Saulawa, JCA.
I am in full agreement with the exquisite reasoning and sound conclusion therein. I have nothing more to add.
I also hold that this appeal succeeds albeit in part. I allow this appeal in part and abide by the consequential orders in the leading judgment.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother I.M.M. SAULAWA, JCA.
I agree with the reasoning and conclusion reached that the appeal succeeds in part and as such is allowed in part by me. I also set aside the Ruling of the High Court, Bayelsa State holden at Yenagoa on October 19, 2015 in suit No. YHC/241/2014 by Y. E. Ogolo, J.
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Appearances:
Chief M.B.R. Urombo, SAN with him, Nze C.U. Umeonaku, Esq., J.J. Egbekayi, Esq., D. Fubara-Manuel, Esq., A.I. Eyaete, Esq., and E.F. William, Esq. For Appellant(s)
Respondents served For Respondent(s)
