ENYI v. BENUE STATE JUDICIAL SERVICE COMMISSION & ORS (2021)

ENYI v. BENUE STATE JUDICIAL SERVICE COMMISSION & ORS

(2021)LCN/15142(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, May 27, 2021

CA/MK/67/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

CYRIL OGBU ENYI APPELANT(S)

And

1. THE BENUE STATE JUDICIAL SERVICE COMMISSION 2. THE CHAIRMAN, JUDICIAL SERVICE COMMISSION 3. THE ATTORNEY-GENERAL/COMMISSIONER FOR JUSTICE OF BENUE STATE & MEMBER, JUDICIAL SERVICE COMMISSION 4. THE PERMANENT SECRETARY JUDICIAL SERVICE COMMISSION RESPONDENT(S)

RATIO

WHETHER GROUNDS OF APPEAL MUST ARISE FROM THE RATIO DECIDENDI OF THE JUDGMENT.

The general rule is that grounds of appeal must arise from the ratio decidendi of the judgment. See AWUSA V NIGERIAN ARMY (2018) LPELR-44377(SC) which restated the principle and held thus: “Grounds of Appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal arise from the Grounds of Appeal, which emanated from the decision appealed against – Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243 SC.” Per AUGIE, J.S.C. Even though other circumstances can give rise to valid grounds of appeal, it is not every statement made by a Judge that qualifies to generate a ground of appeal. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER IT IS THE NUMBER OF ISSUES FOR DETERMINATION FORMULATED THAT GUARANTEES THE SUCCESS OF AN APPEA

The merit in an appeal is not determined by the number of issues formulated. See G. CHITEX INDUSTRIES LTD V OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR- 1293(SC) where the apex Court held thusly: ”…it is not the number of issues for determination formulated that guarantees the success of an appeal but the contents and quality. It is undesirable to formulate an issue for each of the grounds of appeal. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) 128. Any unnecessary prolixity will be discountenanced.” Per MUSDAPHER, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER THE COURT HAS THE LIBERTY TO MODIFY OR REJECT ALL OR ANY OF THE ISSUES FORMULATED BY THE PARTIES AND FRAME ITS OWN ISSUES

The Court has the liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues, or, as reframe the issues by the parties if in its view, such issues will not lead to proper determination of the appeal. See SHA V KWAN (2000) 8 NWLR (Pt. 670) 685 at 700. PER YARGATA BYENCHIT NIMPAR, J.C.A.

MEANING OF JUDICIAL OFFICE UNDER SECTION 318 (1) OF THE 1999 CONSTITUTION

The basic question in this appeal is whether the Appellant who performs judicial functions comes within the contemplation of a Judicial Officer as provided for in Section 318 (1) of the 1999 Constitution which provides thus: “In this Constitution, unless it is otherwise expressly provided or the context otherwise requires: “JUDICIAL OFFICE” means the office of the Chief Justice of Nigeria or a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the office of the Chief Judge or Judge of the Federal High Court, the office of the President of the National Industrial Court, the office of the Chief Judge or Judge of the High Court of the Federal Capital Territory, Abuja, the office of the Chief Judge or Judge of a State, a Grand Kadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, a Grand Kadi or Kadi of the State and a reference to a Judicial Officer is a reference to the holder of any such office.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

RULES OR GUIDES TO THE INTERPRETATION OF THE CONSTITUTION OR STATUTES

There are different rules or guides to the interpretation of the Constitution or Statutes and the reasoning that informs the interpretation, the apex Court in the case of A.G. BENDEL STATE V A. G. FEDERATION & ORS (1981) LPELR-605 (SC) gave the cardinal guide thusly: “In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind. (1) Effect should be given to every word. (2) A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context. (3) A constitutional power cannot be used by way of condition to attain unconstitutional result. (4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning. (5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entity; a particular provision cannot be dismembered from the rest of the Constitution. (6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import of its meaning. (7) A constitutional provision should not be construed so as to defeat its evident purpose. (8) Under a Constitution conferring specific powers, a particular poser must be granted or it cannot be exercised. (9) Delegation by the National Assembly of its essential legislative function is precluded by the Constitution (Section 58 (4) and Section 4 (1)). (10) Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation. (11) The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions. (12) Words of the Constitution are therefore not to be read with stultifying narrowness. See: Martin v. Hunter 1 Wheat 304, 4 L. Ed. 97, Cooper v. Telfair 6 Da114, 1 L. Ed. 721. United States v. Lefkowitz 285 US. 452, 52S. Ct. 420, 76L. Ed. 877, United States v. Classic 313 US. 299, 61 S. Ct. 1031,85 L. Ed. 1368. Lake County v. Rollins 130 US. 6629 S. Ct. 651, Fairbank v. United States 181 US 283, 21 S. Ct. 648,45 L. Ed. 862, United States v. Sharpnack 355 US. 286, 78 S. Ct. 291, Western Bank Ltd. v. Schindler (1977) 1 Ch. 1 at 13. Luke v. Inland Revenue Commissioners (1963) AC. 577. In Re Maryon-Wilsons’ Will Trusts (1968) Ch. 268,262.” Per OBASEKI, J.S.C. An expository of interpretation of statutes was recently given by the erudite and cerebral jurist NWEZE, JSC in the case of SKYE BANK V IWU (2017) LPELR-42595(SC) where he traced the commonwealth principles and practice of interpretation of statutes and reviewed some of the authorities relied upon by the Appellant. He opined that it is now firmly settled in a long line of decided authorities in several different languages or pronouncements, that in the interpretation of statutes and/or Constitution, words therein should be given their ordinary meaning. One clear principle enunciated in the authorities above is the clear statement that the cardinal principle and rule of statutory interpretation is to ascertain the true intention of the legislature thus where the words used in an enactment are clear and unambiguous, they should be accorded their ordinary and grammatical meanings without any colouration. See UGWU V. ARARUME (2007) 12 NWLR (PT. 1048) 365, AGBAJE V. FASHOLA (2008) 6 NWLR (PT. 1086) CA 90. The duty of the Court in interpreting an unambiguous statutory provision is to declare the actual words used in the provision to avoid absurdity. The apex Court opined that no more is necessary than to expound those words in their natural and ordinary sense of the words themselves in a case best declare the intention of the legislature or that there is need to construe words used in their natural and ordinary sense – See RHEIN MASS UND SEE SCHIFFAHRS KONTOR GMBH & ANOR V. RIVWAY LINES LTD (1998) 4 SCNJ 18 AT 29 or that there is no room for applying any of the principles of interpretation which are merely presumptuous in cases of ambiguity in the statute. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER THE EXPRESS MENTION OF ONE THING IN A STATUTORY PROVISION AUTOMATICALLY EXCLUDES ANY OTHER

… authorities abound that in Law, the express mention of some things is an express exclusion of the things not mentioned. See EBUBEDIKE V FRN & ORS (2013) LPELR-22061(CA) where BAGE, JCA (as he then was) had this to say: “It is trite Law that where the Constitution or the statute confers exclusive power to an organ or body, those not specifically mentioned are therefore excluded. The Supreme Court in the case of the ATTORNEY GENERAL OF BENDEL STATE & 2 ORS. VS. AIDEYAN (1989) 9 SC 127 stated as follows: “It is now firmly established that in the construction of a statutory provision where a statute mentions specific things or persons the intention is that those not mentioned are not intended to be included.” On the same point also see EHUWA vs. ONDO STATE (2006) 11 – 12 S.C. 102.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

POSITION OF THE LAW REGARDING THE CONCEPT OF WAIVER

See NIGERIA PORTS PLC V DUNCAN MARITIME VENTURES (NIG) LTD (2010) LPELR-4602(CA) on the principle of waiver, wherein the Court held: “As a principle of general rule, the concept of waiver denotes an intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted upon. It is in succinct, an abandonment of a right. This principle has been well defined and enunciated by their Lordships of the apex Court in the case of Auto Import Export v Adebayo under reference supra, and wherein Ogbuagu JSC has this to say at page 122 of the report:- “The concept of waiver, is said to be that a person who is under no legal liability and having full knowledge of his right or interest conferred on him by Law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those right or that he has been denied the enjoyment of those interests. See Ariori & Ors. V Elemo & Ors (1983) 1 SC 13 at 48-49; (1983) 1 SCNLR 1 at 25 per Eso, JSC; Ezomo v Oyakhire (1985) 1 NWLR (Pt.2) 195; Adegoke Motors Ltd. v Dr. Adesanya & Anor (1989) 3 NWLR (Pt.109) 250 at 292. To amount to a waiver – express or implied, two elements it is settled, must co-exist, namely:- i. The party against whom the doctrine is raised, must have knowledge or be aware of the act or omission which constitutes the waiver and ii. He must do some unequivocal act adopting or recognizing the act or omission. See Olatunde v Obafemi Awolowo University & Anor (1998) 5 NWLR (Pt.567) 178… Ariori & Ors. V Elemo & Ors (supra) were referred to.” In order to establish a waiver, it must therefore be shown that some step has been taken which is only necessary or only useful if the objection has been actually waived or has never been entertained. See Dr. Saraki v Kotoye (1990) 4 NWLR (Pt.143) 144; (1190) 6 SCNJ 31. Also in the case of Ariori & Ors. V Elemo & Ors (supra) which was referred to in the authority of Odu’a Investment Co. Ltd. v Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe JSC, at page 22 of the NSCC Report while defining the word waiver, had this so say:- “By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore implies a dispensation or abandonment by a party waiving of a right or privilege which as his option, he could have insisted upon.” Obaseki, JSC on his part at page 25 of the same report, opined as follows:- “Waiver is according to Words and Phrases legally defined, Vol.5 p.301 1969 Edition – reprinted 1874 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exist.” Furthermore and in the case of Caribbean Trading & Fidelity Corporation v NNPC (1992) 7 NWLR (Pt.252) 161 at 185, Tobi, JCA, as he then was had this to say:- “Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of Law will hold that he has waived his right.” The learned respondent’s counsel by his submission as to what constitutes a waiver, cited the case of Auto Import Export v Adebayo supra, wherein the definition relates to “the intentional and voluntary surrender of a known privilege or right by a party entitled to same which at his option he could have insisted upon.” Per OGUNBIYI, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHETHER THERE IS A SINGLE STANDARD OR ACCEPTABLE FORM OF WRITING A JUDGMENT

… I say that every Judge has his personal style of judgment writing and therefore there is no single standard or acceptable form of writing a judgment as long the judgment captures the essential ingredients of a valid judgment and resolves the issue or issues for determination. See USIOBAIFO & ANOR V USIOBAIFO & ANOR (2005) LPELR-3428(SC) which held as follows: “There is no constitutional requirement as to a particular format in the writing of a judgment. There is no statutory format either. Judgment writing being an art, needs the peculiar and personal dexterity of the Judge who is the “artist”. No two artists convey exactly the same painting from an assigned object. So too, no two Judges write judgment using exactly the same house style and the same coloration, and all that. Each Judge has his own peculiar style and once the judgment contains the major attributes of a good judgment, an appellate Court will not interfere. Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in the field of mathematics. A Judge is not bound to follow the method or methodology stated by Counsel in his brief. Once a judgment of a trial Judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of Counsel, if Counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate Court cannot hold that the judgment is not properly written.” Per TOBI, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Benue State sitting in Makurdi delivered by HON. JUSTICE E. N. KPOJIME on the 8th February, 2018 wherein the lower Court dismissed the case of the Appellant. The Appellant dissatisfied with the judgment, filed an Amended Notice of Appeal dated 20th January, 2021 with leave of Court granted on the 18/1/21, it set out 17 grounds of Appeal.

Facts leading to this appeal are straight forward and are amenable to brief summary. I shall do so shortly. The Appellant was initially appointed a Senior Magistrate 1 by the 1st Respondent. The letter of appointment stipulated conditions of the offer which was accepted by the Appellant. He subsequently rose to the rank of Chief Magistrate. By a letter date 18th January, 2017, the Appellant was reminded of his mandatory retirement upon attaining the age of 60 years in line with the Laws applicable to Benue State and the terms of his employment. The Appellant admitted his age but contended that his retirement age is 65 and not 60. He asserted that he was a judicial officer whose tenure of office is

covered by Section 291(2) of the 1999 Constitution. He also contended that the Benue State Pensions and Gratuities Law 1990 CAP 125 did not apply to him a judicial officer whose appointment was made according to the Constitution by the 1st Respondent. The Appellant’s suit against the Respondents sought the following reliefs:
a. A DECLARATION that the Plaintiff is of holder of judicial office and is judicial officer.
b. A DECLARATION that Section 291 (2) AND (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the Law that regulates the tenure of office of the Plaintiff.
c. A DECLARATION that the Benue State Pensions and Gratuities Law, 1999 CAP 125 does not apply to the Plaintiff.
d. A DECLARATION that the 1st Defendant’s letter Ref. No. JSC/EST/SEC/33/75 of 12th January, 2017 has no effect on the Plaintiff’s employment.
e. A DECLARATION that the age for mandatory voluntary retirement of the Plaintiff is 65 years.
f. AN ORDER of prohibitory injunction restraining or preventing the Defendants either by themselves or their agent or agents from preventing or obstructing the Plaintiff from

due exercise of the function of the duty of the Plaintiff’s office or doing any act or acts prejudicial to the Plaintiff’s exercise of his office or enjoyment by prerequisites of his office pending the determination of this action.
g. AND other consequential and or ancillary reliefs.

The Appellant attached to his Writ of Summons the following documents:
1. Bachelor of Laws Degree (LL.B Hons)
2. Certificate of call-to-Bar
3. Judicial Service Commission notification of appointments
4. Extract of scheme of service for use in the civil service of the Federation 2003 adopted by Benue State of Nigeria.
5. Letter of mandatory retirement with Ref. No. JSC/EST/SEC/33/1/75.

Issues were joined in the pleadings filed and exchanged by the parties. At the pretrial, parties conceded that there was no need of calling oral evidence as the facts were not in dispute, upon that concession, parties settled a lone issue for determination and filed adopted written addresses at the hearing. The lone issue states thus:
“Whether the plaintiff is a judicial officer as contemplated by Section 291(2)

and (3) of the Constitution of the Federal Republic of Nigeria as to entitle him to the benefits therein, to wit, to retire at the age of 65 years.”

After due consideration, the Court below dismissed the case of the Appellant for lacking in merit, thus the appeal. Parties filed and adopted their respective briefs at the hearing of the appeal.

Pursuant to the Rules of Court, parties filed their respective briefs which were adopted at the hearing of the appeal. The Appellant’s brief was settled by the Appellant, CYRIL OGBU ENYI, ESQ., it is dated 2nd day of October, 2018, filed on the same day but deemed filed on the 18th day of January, 2021 and it distilled 10 issues for determination as follows:
1. Whether the lower Court was right in holding that the provisions of the 1999 Constitution of the Federal Republic of Nigeria do not cover officers performing judicial functions in inferior Courts (Ground 10).
2. Whether the lower Court was right in holding that the Appellant, a Chief Magistrate 1, did not come under the definition of Judicial Officer in Section 318 (1) of the 1999 Constitution and so was not entitled to take benefits under

Section 291(2) and (3) of the 1999 Constitution, i.e. to retire at 65 years of age. (Ground 4, 6, 13 and 15)
3. Whether the lower Court was right when it held that the phrase “any other Court” on Section 291 (2) can only be a reference to Courts established by virtue of Section 6(5) (a)-(i), that is the superior Courts of record in Nigeria. (Ground 11 and 14)
4. Whether the lower Court was right not to state, consider and decide the Appellant’s claim for a declaration that the Benue State Pensions and Gratuities Law 1990 CAP 125 does not apply to the Appellant (Ground 1).
5. Whether the lower Court properly apply its judicial mind when it failed to read, grasp and consider the submissions of the Appellant before deciding the Appellant’s case before it (Ground 3).
6. Whether the maxim “Expressio Unius Est Exclusio Alterius” the lower Court applied in the interpretation of Section 318(1) of the Constitution is not too narrow and is not contrary to the liberal or broader approach of the Supreme Court to construction of constitutional provisions as stated in plethora of judicial decisions (Grounds 7 and 17).

Whether the lower Court showed the least understanding of Section 318 (1) of the 1999 Constitution and the guidelines of interpretation of statute and Constitutions stated in ELELU-HABEEB V. A.G. FEDERATION (2012) 2 SCNJ 502 at 578 and put proper construction on Sections 318 (1) and 291 (2) and (3) of the Constitution (Grounds 5, 9 and 12).
8. Whether the lower Court was right to give its opinion (i.e. decision) on the case before it considered the case of the parties before it (Ground 2).
9. Whether it is not a misdirection and an abdication of a judicial function when the lower Court said that it was not its duty resort to dictionary definition in view of clear definition of the phrase “judicial Officer” in the Constitution (Ground 8).
10. Whether the lower Court was right in dismissing the Appellant’s case for lack of merit (Ground 17).

The Respondents’ brief settled by SIMON C. EGEDE, MON., dated the 25th May, 2018, filed on the same day but deemed on the 18th day of January, 2021 and formulated 2 issues for determination thus:
a. Whether the learned trial Judge was right in holding that the

provisions of Section 318(1) of the Constitution of the Federal Republic of Nigeria does not cover the Appellant and consequently not entitled to take benefits under Section 291 (2) and (3) of the said Constitution, that is, to retire at the age 65 years.
b. Whether the learned trial Judge was right dismissing the Appellant’s case for lack of merit.

Thereafter, the Appellant filed a reply brief dated 25th January, 2021, filed on the 26th January, 2021 but was deemed on the 18th January, 2021.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant argued that the lower Court was wrong in holding that the inferior Courts are not covered by the provisions of the 1999 Constitution of the Federal Republic of Nigeria. The Appellant submits that Section 6 (4) (a) of the Constitution is the source of the power of the House of Assembly of Benue State to establish inferior Courts as held in EDET V. MATTHIAS (2009) ALL FWLR (PT. 454) 1564. Citing Section 6(2) of the 1999 Constitution, the Appellant contended that the Constitution is the only source of the judicial power the Courts of Law wield and the Constitution also defined the scope or

extent of the judicial power the Courts can exercise (i.e. jurisdiction). He referred the Court to SENATOR ABRAHAM ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR (1981) 1 ALL NLR (PT. 1)1. The Appellant submits that the lower Court was wrong in Law when it failed to realize the advisory role the 1st Respondent plays in the appointment of officers of the Superior Courts which is inferior to its operational power to make appointment of the officers of inferior Courts that is, the 1st Respondent has powers to appoint, dismiss and discipline judicial officers of the inferior Court however, when it comes to the appointment of Judicial Officers of Superior Courts in the State, it only advises the National Judicial Council.

The Appellant urge the Court to uphold his submissions and resolve the first issue in his favor and in turn, allow this appeal.

ISSUE TWO
The Appellant argued that the lower Court was wrong to hold that the judicial functions performed by the Appellant as a Magistrate does not come under the definition of “Judicial Officer” in Section 318 (1) of the Constitution and consequently is not entitled to

take benefits under Section 291(2) and (3) of the said Constitution. The Appellant submits that the lower Court did not state the reasoning behind its holding and neither did it state the difference between the Judicial Officers of the inferior Court and the Judicial Officers in Section 291(2) of the Constitution. Continuing, the Appellant submits that there is only one type of judicial officer, an officer who holds office of a Court of Law which the Constitution vest judicial power whether it be superior or inferior Court is a judicial officer, though, their jurisdiction may differ, they are same in respect of judicial power, relied on SENATOR ABRAHAM ADE ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR (SUPRA). The Appellant avers that lower Court did not understand the structure-functional relationship between Section 291 (2) and (3) and Section 318 (1) of the Constitution therefore the Appellant raised three line arguments in respect of the above submission.

Firstly, the Appellant argued that Section 291 (2) of the Constitution is independent and does not depend on Section 318 (1) of the 1999 Constitution for its application, that

is, Section 318 (1) of the Constitution is not a condition for the application of Section 291 (2) of the Constitution, that there is no thread passing through and linking both Sections. The Appellant submits that the import of Section 291(2) is that it covers all judicial officers in all other Courts apart from the Court of Appeal and Supreme Court. Citing the case of ELELU-HABEEB V. A.G. FEDERAL (2012) 2 SCNJ 502, the Appellant argues that the trial Court failed to consider that Section 291(2) employs indefinite article “a” meaning “any” to qualify judicial officer and an adjective “any” meaning “one out of many” no matter which to qualify “other Court”. Relying on NAFIU RABIU V. THE STATE (1980) S.C. 130, the Appellant submits that the Supreme Court rejected the submission that the Latin maxims Expressio Unius Est Exclussio Alterius applied and held that the word decision includes acquittal and urge the Court to hold that judicial officer include all other Courts apart from the Superior Courts no matter the Court.

Secondly, that Section 318(1) of the Constitution accommodates both the

contextual meaning either of which adequately covers judicial officer for which the appellant is covered and that Section 291 (2) of the Constitution does not discriminate between judicial officer by contextual definition and judicial officer by explicit definition in Section 318(1) of the Constitution. The Appellant submits that Section 318 (1) of the Constitution comprises both contextual interpretation and explicit definition and it’s construction structurally is in two main clauses: Unless or exception clause which consists of the express provision limb and the contextual limb; the Explicit definition clause consisting of a series of clauses that explicitly define terms in Section 318 (1) of the Constitution. According to the Appellant, Judicial office and judicial officer can mean the office and officer, the explicit definition gives them when the context does not differently require or demand, therefore, there is nothing in Section 291 (2) and (3) of the Constitution that carries the import that it discriminates between Judicial Officer and Judicial Office that are so by explicit definition and by contextual definition.

Thirdly, the Ejusdem Generis Doctrine applies to the substantive definition of judicial officer in the explicit definition in Section 318(1) of the Constitution. The Appellant submits that the ordinary rules of construction, general words are to be read ejusdem generis with the preceding particular words as held in BADCOCK V. HUNT (1888) 22 Q.B.D. 322; MUDIE & CO. V. STRICK (1909) 100 L.T. 70/VOL/17, FENWICK V. SCHMALZ (1868) 16 W.R. 481 and MAGNHILD (OWNERS) V. MELNTYRES BROS CO. (1920) 3 K.B. 321. The Appellant argued that the explicit and substantive definition of judicial office after the “Unless” clause in Section 318(1) of the Constitution is in two clauses. Firstly, “Judicial Office” means the office of Chief Justice of Nigeria or a Justice of the Supreme Court… or President or Judge of Customary Court of Appeal of a State, secondly, “Judicial Officer” refers to any holder of any such office. The Appellant submits that from the above submission, it shows the inconsistency of the draftsman in progression from mentioning offices of some officers to officers of other officers which it is not clear whether he was referring to Courts

in Section 6(5) (a) to (i) or not. The Appellant avers that the inferior Court shares judicial power with Superior Courts but not jurisdictionally as held MOORS V. MAGRATH (1774) 1 COW P. 9 and COMPTON V. JARRATT (1885) 30 CH.D 098. Also the key word in the second clause is “any such office” with controlling word SUCH which means like and the word “like” is well expressed in a passage from the Gospel of St. Mark 9:36-37. Also cited LYNDON V. STANDRIDGE (1857) 2 H & N 45.

Furthermore, the Appellant argued that Section 291 (2) of the Constitution adequately covers the Appellant and his Court and does not discriminate between judicial officers as it is clear from the language of the Section itself and the phrase ejusdem generis doctrine applies to the definition of judicial officer in Section 318(1) of the Constitution and the inferior which is classifies by virtue of Section 6(3) (5) (k). Finally, the Appellant submits that no sound legal construction would leave out the inferior Courts under Section 291 (2) and (3) of the Constitution and he urges the Court to uphold these submission, resolve the issue in his favour and allow the of Appeal.

ISSUE THREE
The Appellant contends that the lower Court misunderstood and misinterpreted Section 291 (2) and (3); Section 6(3), (5) (a)-(k) and that the lower Court also disregarded the dictum of Obaseki J.S.C in NAFIU RABIU V. THE STATE (1980) S.C. 130 and ELELU-HABEEB V. A.G. FEDERAL (2012) 2 SCNJ 502. The Appellant avers that the lower Court ignored the indefinite article ‘a’ which qualifies “judicial officer” and adjective “any” which qualifies “other Court” in Section 291(2) and (3) of the Constitution which covers all the judicial officer and all other Courts other than the Supreme Court and the Court of Appeal. The Appellant urges the Court to uphold his submission and to allow the appeal.

ISSUE FOUR, FIVE AND EIGHT
The Appellant submits that he asked the lower Court for seven reliefs which are crucial to the determination of the case, however the lower Court failed to include two of the reliefs claimed from what is called the summary of the reliefs before it. The Appellant submitted that had the trial Court considered these reliefs which deals with declaration, it would not

have reached its wrong decision that Section 291 (2) and (3) of the Constitution did not govern the Appellant’s employment status. The Appellant avers that the lower Court held that the 1st Respondent appointed the Appellant making the Appellant a civil servant because the Benue State Judicial Commission is a corporation under the Civil Service Rules and the Benue State Pensions and Gratuities Law 1990 Cap 125 does apply to his case. The Appellant contended that the Benue State Pensions and Gratuities Law 1990 CAP 125 did not apply to him as a judicial officer whose appointment was made according to the Constitution by the 1st Respondent and cannot be regulated by Benue State Pensions and gratuities Law Cap 125 1990.

Furthermore, the Appellant argued that the lower Court did not hear his case, let alone give fair hearing to his case. According to the Appellant, the only means of hearing his case was reading and considering his final written address and reply but the lower Court failed to do that and based his decision on the oral submissions before the Court which did not present his case correctly. The Appellant urges the Court to uphold all his

submission and allow the appeal.

ISSUE SIX
The Appellant argued that the basis of the lower Court’s holding that the Latin Maxim “expressio Unius est exclusio alterius” applies is that the Constitution had not expressly and clearly stated that the class of judicial officer the Appellant belonged is included in the definition of judicial officer. The Appellant submits that if all matters in the Constitution are put in black and white, that is, expressly and clearly, the lower Court would not have the duty of interpretation because no situation will call for it. The Appellant restated the purpose of the Constitution as held by Per Sir Udo Udoma, JSC in NAFIU RABIU V. KANO STATE (1980) S.C. 140 and the holding of the trial Court at page 149 of the Record of Appeal. The Appellant argued that the trial Court’s interpretation of Latin Maxim “expressio unius est exclusio alterius” is the narrower approach against the broader interpretation which is the approach of the Supreme Court as seen in the case of NAFIU RABIU V. KANO STATE (SUPRA). The Appellant reproduced the holding of the trial Court at page 197 and 198 of the

Record of Appeal and relied on the case of ABRAHIM ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR (1981) 1 ALL N.L.R (PT.1) 1 and P.D.P V. INEC (1999) 11 NWLR (PT. 626) 200 to submit that the lower Court’s approach to the construction of the Constitution is a deviation from the Supreme Court approach to Constitutional construction stated above. The Appellant states that it was wrong for the lower Court to hold that the maxim applied to this case.

Furthermore, the Appellant argued further that it was wrong for the lower Court to overlook the object and purpose of the Constitution which is Equity and Justice. The Appellant submits that the definition of “judicial office” in Section 318 (1) of the Constitution is conditional in that it is subject to the “Unless” or exception clause and coupled with the omission of shall from ‘after’ means i.e. shall mean, makes the word means in the definition to receive an extensive force instead of its traditional restrictive force. The Appellant urged the Court to uphold his submission and hold that the maxim does not apply to the Appellant’s case and to allow the appeal.

ISSUE SEVEN
The Appellant argued that the trial Court did not put proper construction on Sections 318(1) and 291(2) and (3) of the 1999 Constitution. The Appellant reproduced the holding of the trial Court at page 134 and 136 of the records of appeal and submitted that the lower Court did not understand the statements in Section 318(1) of the Constitution, which are “Unless the context otherwise requires…” and “Unless it is otherwise expressly provided” as both statements which the lower Court called expression and phrase respectively are limbs of the unless or exception clause of Section 318 (1) of the Constitution and both serve as bridle to the definition of terms “judicial office and judicial officer”. The Appellant submits that the lower Court relied on the case of ELELU-HABEEB V. A.G. FEDERATION (2012) 2 SCNJ 502 which deals with the three rules of the interpretation firstly, the literal rule; secondly, the golden rule and thirdly, the liberal rule and applied same to the first statement of the unless clause but did not specify which of the rules applies and the reason for its

application. Also the Appellant submits that there is a link between the first statement and the phrase “any such office” in the third clause in the definition of “judicial officer” in Section 318(1) of the Constitution and the lower Court failed to established the nexus between “any such office” in the third clause of the definition of “judicial officer” and “any other Court” in Section 291 (2) and the Courts mentioned in Section 230-280 of the Constitution.

According to the Appellant, the lower Court failed to understand that Section 318(1) of the Constitution is structurally made up of two main clauses namely; “Unless” or exception clause consisting of express provision limb or contextual limb and the explicit definition clause consisting of a series of clauses that explicitly define terms e.g. “Judicial Officer”. And “Unless clause” covers situations not specially provided for or situations the context differently requires as held in FAWEHINMI V. I.G.P. (2000) FWLR (PT. 12) 2015. The Appellant submitted that lower Court failed to understand that when the

Constitution excepted things that are contextually otherwise from the things it expressly provided for, all the things that are depending on it and necessary for obtaining it are exempted and things contextually exempted are prior to the things expressly provided as held in CARDIGAN (EARL) V. ARMITRAGE (1823) 107 E.R. 356 OR ENGLISH AND EMPIRE DIGEST VOL. 17 340. The Appellant argued that the lower Court lacked understanding that contextual interpretation is an interpretation within but not outside the Constitution and that Section 291 (2) of the Constitution does not discriminate between “judicial officer” who are so by contextual interpretation/meaning and “judicial officer” who so by explicit definition clause in Section 318 (1) of 1999 Constitution. Finally, the Appellant submits that the lower Court misunderstood and misapplied the case of ELELU-HABEEB (supra) and urge the Court to resolve the issue in his favour and allow this appeal.

ISSUE NINE
The Appellant reproduced the holding of the trial Court at page 135 of the Record to submit that two points can be inferred from the holding of the trial Court. Firstly, if the

Law defines a term, the Court cannot inquire into the definition/meaning of that term and secondly, the Court will not consult a dictionary for definition or meaning of a term unless the Law permits it to do that, by this, the trial Court misdirected itself. The Appellant relied on SEAFORD COURT ESTATE LTD V. ASHE (1945) 2 K.B. 461 and LORD MACDERMOTT (1964) JUR. REV 103. The Appellant argued that the misdirection of the lower Court is borne out of its failure to appreciate the role of dictionary in interpretation of statute and the deliberate refusal by the lower Court to draw assistance from the submissions of the Appellant in the Appellant’s final written Address. The Appellant relied on ODGERS’ CONSTRUCTION ON DEEDS AND STATUTES P. 316 and the case of LINDSAY V. CUNDY (1876) 1 Q.B.D to submit that the interpretation section in a statute is known for their defect and even though the interpretation section is part of the statute, it is a definition and not a legislation or an enactment. It is trite that interpretation is the primary function of the Court and when the lower Court held that its duty has been done for it by the draftsman defining a

term in interpretation clause and would not consult a dictionary, it misdirected itself. The Appellant cited Maxwell ON THE INTERPRETATION OF STATUTES 12th Ed. P. 55; the case of R. V. PETER (1886) 16 QBD 636 and KERR V. KENNEDY (1946) 1 K.B. 409 to submit that the interpretation section does not acquire the status of judicial authority and the lower Court therefore misdirected itself by saying it is not its duty to resort to dictionary definition in view of the clear definition of the phrase “Judicial Officer” in the Constitution being the centre of controversy between the Appellant and the Respondent. The Appellant referred to the case of NAFIU RABIU V. THE STATE (1980) 8-11 S.C. 130 where the Supreme Court referred to Wharton’s Law Lexicon 14th Ed. by A.S. Oppe, also WORD AND PHRASES LEGALLY DEFINED 2ND EDN BY JOHN B. SAUNDERS VOL. 1 and the case of P.D.P V. INEC (1999) 11 NWLR (626) 200 where the Supreme Court referred to COLLINS ENGLISH THESAURUS IN A-Z FROM 2ND COLOUR ED. 182 to state that Dictionary definitions are relevant and the Courts can rely on them. And he submitted that the lower Court strayed from well-known rules with regard to the effect of an interpretation clause.

Furthermore, the Appellant submitted that interpretation clause is not applicable on every occasion and it is not only defining of a term under all circumstances but rather it is declaring of what may be comprehended within the term where the circumstance require that it should be so comprehend. He referred to Crannies on Statute Law (Supra) 216. The Appellant urge the Court to uphold his submission and to allow the appeal.

ISSUE TEN
The Appellant argued that merit is contrast to technicality. He avers that although the Court may not finally decide the parties’ case on ground of procedure or technicalities, nevertheless where the Court calculatedly refused to give worth or value of party’s case this is not a decision on the merit so as to warrant the Court to dismiss it as the lower Court did. The Appellant submits that the lower Court did not go to the merit of the Appellant’s case which was wrong. The Appellant urge the Court to rehear the Appellant’s case as required by the rules of this Honourable Court of Appeal, allow the appeal, set aside the judgment of lower Court and

enter judgment for the Appellant as per his claims.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents argued that a resolution of the issue in favour of the Appellant would have led to granting of the principal reliefs claimed while resolving the issue against him would lead to the dismissal of the case. The Respondents reproduced the provisions of Sections 230-269 and Section 270-284 of the Constitution which established the Federal and State Courts respectively and such Court exercises judicial powers in line with Section 6(6) of the Constitution. Also the Respondents submits that pursuant to Section 6(4) (a) of the Constitution, the State by Law can established Courts namely; Magistrate Courts, District Courts, Area Courts and Customary Courts and the said Court can exercise judicial powers vested in Section 6(6) of the Constitution, consequently, the Appellant as a Chief Magistrate 1 is a Judicial Officer and can exercise Judicial Powers set down in Section 6(6) (a) and (b) of the Constitution. The Respondents submits that Section 291 relates to tenure of office and pension rights of judicial officers appointed into Court created

and named in the Constitution and Section 291(2) provides for the mandatory retirement age of such Judicial Officer is 65 years. The Respondent further submits that the Appellant even though a Judicial Officer does not come within the contemplation of Section 291(2) of the Constitution as to entitle him to retire at age of 65years.

The Respondents reproduced Section 318(1) of the Constitution where it defined a Judicial Office and they submit that the definition does not list Magistrate Courts, District Courts, Area Court or Customary Courts. And the Appellant being a Chief Magistrate 1 and occupying the office Magistrate Court is clearly excluded. The Respondents argued that the Law is settled that in interpretation of statutes, the words used in as much as they are clear and unambiguous, must be given their ordinary meaning unless this would lead to absurdity or conflict with another provisions of the statute and the express mention of one thing in a statute automatically excludes any other stipulation which would otherwise have applied by implication as held in ARDO V. NYAKO (2014) ALL FWLR (PT. 744) 130; ATT-GEN LAGOS STATE V. ATT-GEN FEDERATION

(2014) ALL FWLR (PT. 740) 1296 and FAWEHINMI V. IGP (2000) FWLR (PT. 12) 2015.

The Respondents also argued that the trial Judge reviewed the arguments of parties and in arriving at the judgment, the trial Judge showed understanding of the principles of interpretation of statutes and correctly declined to resort to dictionary definitions of the phrase “Judicial Officer”. The Respondents submits that the trial Judge was right in holding that the provisions of Section 318(1) of the Constitution does not cover the Appellant and consequently he is not entitled to take the benefits under Section 291(2) and (3) of the said Constitution, that is, to retire at the age of 65 years.

ISSUE TWO
The Respondents contends that the Appellant’s argument on issue 10 did not advance any discernible points in support of his contention that the lower Court was wrong in dismissing his case. The Respondents submits that the trial Judge gave sufficient reasons, backed by legal authorities in support of his reasoning and conclusion (See page 136-137 of the record of Appeal). The Respondents urge the Court to affirm the holding of the trial Court and to

dismiss the Appellant’s case for lack of merit.

THE APPELLANT’S REPLY BRIEF
The Appellant argued that Section 318(1) of the 1999 Constitution accommodates two kinds of definitions of Judicial Office, namely Explicit definition and Contextual definition. He submits that the explicit definition of judicial office deals with the superior Courts of record in Nigeria while the contextual definition covers the inferior Courts of Record in Nigeria, relied on Section 6(4)(a); Section 6(5)(k); Section 315 and 316 of the 1999 Constitution and the case of EDET V. MATTHIAS (2009) ALL FWLR (PT. 454) 1564. According to the Appellant, the contextual clause is an adverbial clause of condition introduced by the word unless which is both an adjective and conjunction. The Appellant relied on Halsbury’s Law of England 3rd Ed. Vol. 36, P. 385 and the cases of CLAUDE NABHAN V. GEORGE NABHAN (1967) ALL N.L.R 51; WUYEP V. WUYEP (1997) 10 NWLR (PT. 523) and FAWEHINMI V. I.G.P (2000) FWLR (PT. 12) 2015 to support his submission. The Appellant submits that the explicit definition of “judicial office” in Sub-Section 318(1) of the 1999 Constitution

is neither absolute nor exhaustive and is subject to the contextual definition. The Appellant relied on the maxim of Law which says “verba relata hoc maxime operantur per referentiam ut un eis inesse videntur” means words to which reference is made have the same effect and operation as if they were inserted in the clause referring to them. Relying on the case of SMITH V. MILLIONS (1889) 16 A.R. 140, the Appellant submitted that the contextual definition of judicial office and judicial officer is part and parcel of Section 318(1) of the 1999 Constitution.

The Appellant argued further that there are four functions of legal rules, namely: (1) compelling; (2) forbidding; (3) enabling; (4) relieving; and the legal sentences that express these rules typically employ the modal “Shall” which is expressed as an imposition. The Appellant submits that the definition of Judicial Office in Section 318(1) of the Constitution employs the verb mean without modal “Shall” before it and there is difference between “Judicial Office” means and “Judicial Office” shall mean, the former is not a legal rule and it is

the form Section 318(1) of the Constitution takes. The latter is a legal rule and it is the form the code of conducts for judicial officers in Nigeria employs or takes, therefore, Section 318(1) of the Constitution does not have binding effect on Judges or the Courts in the interpretation of 1999 Constitution. According to the Appellant, Section 318(1) of the Constitution is a naked usurpation of the function of Courts or Judges whose practice is the interpreter of the Law as expressed in the Latin Maxim praxis judicum est interpres legume. He further submits that in legal palace where interpretation by the author himself is not practiced, that is, where the people are the author of the Constitution and the draftsman is the author of the interpretation section, this is a great defect as the draftsman attempts to legislate under guise of definition as stated in ODGER CONSTRUCTION OF DEEDS AND STATUTES 5th Ed. P. 316 and Merriam Webster Dictionary states that definition and interpretation are synonymous.

The Appellant urges the Court to discountenance the arguments of the Respondents, allow the appeal and set aside the judgment of the lower Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESOLUTION
I have carefully considered the Amended Notice of Appeal, the record of Appeal entered on the 28th March, 2018, the respective briefs of learned Counsel adopted, I find a total of 12 issues for determination donated by the parties and definitely that is unwieldy cumbersome arising from the sole issue settled at the trial Court. I agree with the Respondent’s Counsel that some of the grounds of Appeal from which the issues were generated did not arise from the ratio decidendi of the trial Judge in the judgment appealed against. The general rule is that grounds of appeal must arise from the ratio decidendi of the judgment. See AWUSA V NIGERIAN ARMY (2018) LPELR-44377(SC) which restated the principle and held thus:
“Grounds of Appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal arise from the Grounds of Appeal, which emanated from the decision appealed against – Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243 SC.” Per AUGIE, J.S.C.
Even though other circumstances can give rise to valid grounds of appeal, it is not every

statement made by a Judge that qualifies to generate a ground of appeal.

The merit in an appeal is not determined by the number of issues formulated. See G. CHITEX INDUSTRIES LTD V OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR- 1293(SC) where the apex Court held thusly:
”…it is not the number of issues for determination formulated that guarantees the success of an appeal but the contents and quality. It is undesirable to formulate an issue for each of the grounds of appeal. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) 128. Any unnecessary prolixity will be discountenanced.” Per MUSDAPHER, J.S.C.

The number of issues formulated here are unwieldy and unnecessary. The Court has the liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues, or, as reframe the issues by the parties if in its view, such issues will not lead to proper determination of the appeal. See SHA V KWAN (2000) 8 NWLR (Pt. 670) 685 at 700. Flowing from above, the Court shall adopt the two issues distilled by the Respondent which encapsulates the numerous issues formulated by the Appellant.

However, the points in issue in all the issues donated by the Appellant shall be considered in the determination of this appeal seamlessly.

From the record of appeal, the determination of the claim was narrowed down to one main issue and candidly all other issues can be subsumed into the main question of whether the Appellant can come under the contemplation of Section 291 of the 1999 Constitution and be entitled to retire at the age of 65years being a Chief Magistrate I with the Benue State Government.

Judicial powers are bestowed on the Courts by virtue of Section 6 (6) of the Constitution and to be exercised as bestowed by the Constitution or any Law duly made creating other Courts. See DINGYADI & ANOR V INEC & ORS (2011) LPELR 950 (SC) where the apex Court held thusly:
“The judicial powers of the Federation shall be vested in the Courts enumerated in Section 6(5) of the 1999 Constitution being Courts established for the Federation and by virtue of Section 6(5) (j) or any such other Courts as may be authorized by Law to exercise jurisdiction on matters with respect to which the National Assembly may make Laws. In the hierarchy of

Courts enumerated under Section 6(5) of the Constitution, the Supreme Court tops the list. By virtue of Section 6(6), the judicial powers vested in accordance with the foregoing provisions of this section – a. Shall extend notwithstanding anything to the contrary in this Constitution to all the inherent powers and sanctions of a Court of Law. In effect, the inherent jurisdiction as defined by the applicant as vested in the Courts derived from the Constitution. Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It may have different meanings in different contexts. Jurisdiction defines the power of the Court to inquire into facts, apply the Law, make decisions and declare judgment. The Constitution and statutes which set up the Courts cloak them with powers and jurisdiction of adjudication which are basically substantive and procedural.” Per ADEKEYE, J.S.C.

The Constitution established certain Courts under Chapter 7 and categorized them into Federal and State Courts and it provided for their appointments, jurisdiction, powers and tenure as can be found for in Section 230-269 of the 1999 Constitution. The State Courts too

were provided for in Section 270-284. There is no doubt that the Appellant is a judicial officer exercising judicial functions in a Court created by the State. The Law creating the office of a Magistrate also named its sphere of authority.
The Appellant under issue one relied on the decision of the Court in the case of EDET V MATTHIAS (supra) to the effect that the House of Assembly can create other Courts as empowered by Section 6(4) (a) and (k) of the Constitution. I agree with that statement but the Courts the House of Assembly can create are Courts below the status of those the Constitution clearly created and named. A creation of the State House of Assembly cannot override what the Constitution has created. There is hierarchy of Laws and Courts under the 1999 Constitution as Amended.

“JUDICIAL OFFICE” means the office of the Chief Justice of Nigeria or a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the office of the Chief Judge or Judge of the Federal High Court, the office of the President of the National Industrial Court, the office of the Chief Judge or Judge of the High Court of the Federal Capital Territory, Abuja, the office of the Chief Judge or Judge of a State, a Grand Kadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, a Grand Kadi or Kadi of the State and a reference to a Judicial Officer is a reference to the holder of any such office.”
The Appellant made heavy weather on his perceived thinking that the Court below misunderstood the functional relationship between Section 291 (2) and (3) and 318 (1) of the Constitution, he went down proffering different theories of interpretation and construction of English words. I must commend the Appellant’s industry in his submissions which is more of an academic discourse on his opinion. He got carried away to the point of challenging the understanding of his case by the trial Judge, he said the trial Judge

had no understanding of his contextual analysis of Section 318(1) of the Constitution. A reference to a judicial officer is reference to the holder of any such office specifically mentioned in the definition Section – Section 318(1) of the Constitution and the office of a Magistrate is not mentioned there. Reading the provision carefully, it means though a Magistrate may be performing judicial duties, he does not occupy a Judicial Office as contemplated by the Constitution and this point was succinctly made in the judgment of the Court below which was also reiterated by the Respondent. There could be judicial offices and judicial officers who are not contemplated in Section 318(1) of the Constitution and therefore excluded. The Constitution has given the States power to create other Courts and those Courts are not included in the Constitution, they cannot enjoy the definition and conditions of tenure as stated in the Constitution. It is to those categories that the dictionary definition of a Judicial Officer could apply. The Appellant was provoked by the trial Judge’s resolution to stick to the definition of a Judicial Officer given in the Constitution

instead of resorting to a dictionary definition. There is no rule against the use of dictionary definitions, they are a valuable tool in the administration of justice, however, within the context of the sole issue, the trial Judge was to resolve, no dictionary definition can alter the definition given by the Constitution in defining the class of Judicial Officers mentioned specifically in the Constitution. It is of no value and would amount to waste of judicial time. I see no wrong in the position taken by the trial Judge.
There are different rules or guides to the interpretation of the Constitution or Statutes and the reasoning that informs the interpretation, the apex Court in the case of A.G. BENDEL STATE V A. G. FEDERATION & ORS (1981) LPELR-605 (SC) gave the cardinal guide thusly:
“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind. (1) Effect should be given to every word. (2) A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context. (3) A constitutional power cannot be used by way of condition to

attain unconstitutional result. (4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning. (5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entity; a particular provision cannot be dismembered from the rest of the Constitution. (6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import of its meaning. (7) A constitutional provision should not be construed so as to defeat its evident purpose. (8) Under a Constitution conferring specific powers, a particular poser must be granted or it cannot be exercised. (9) Delegation by the National Assembly of its essential legislative function is precluded by the Constitution (Section 58 (4) and Section 4 (1)). (10) Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation. (11) The principles upon which the

Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions. (12) Words of the Constitution are therefore not to be read with stultifying narrowness. See: Martin v. Hunter 1 Wheat 304, 4 L. Ed. 97, Cooper v. Telfair 6 Da114, 1 L. Ed. 721. United States v. Lefkowitz 285 US. 452, 52S. Ct. 420, 76L. Ed. 877, United States v. Classic 313 US. 299, 61 S. Ct. 1031,85 L. Ed. 1368. Lake County v. Rollins 130 US. 6629 S. Ct. 651, Fairbank v. United States 181 US 283, 21 S. Ct. 648,45 L. Ed. 862, United States v. Sharpnack 355 US. 286, 78 S. Ct. 291, Western Bank Ltd. v. Schindler (1977) 1 Ch. 1 at 13. Luke v. Inland Revenue Commissioners (1963) AC. 577. In Re Maryon-Wilsons’ Will Trusts (1968) Ch. 268,262.” Per OBASEKI, J.S.C.
An expository of interpretation of statutes was recently given by the erudite and cerebral jurist NWEZE, JSC in the case of SKYE BANK V IWU (2017) LPELR-42595(SC) where he traced the commonwealth principles and practice of interpretation of statutes and reviewed some of the authorities relied upon by the Appellant. He opined that it is now firmly settled

in a long line of decided authorities in several different languages or pronouncements, that in the interpretation of statutes and/or Constitution, words therein should be given their ordinary meaning. One clear principle enunciated in the authorities above is the clear statement that the cardinal principle and rule of statutory interpretation is to ascertain the true intention of the legislature thus where the words used in an enactment are clear and unambiguous, they should be accorded their ordinary and grammatical meanings without any colouration. See UGWU V. ARARUME (2007) 12 NWLR (PT. 1048) 365, AGBAJE V. FASHOLA (2008) 6 NWLR (PT. 1086) CA 90. The duty of the Court in interpreting an unambiguous statutory provision is to declare the actual words used in the provision to avoid absurdity. The apex Court opined that no more is necessary than to expound those words in their natural and ordinary sense of the words themselves in a case best declare the intention of the legislature or that there is need to construe words used in their natural and ordinary sense – See RHEIN MASS UND SEE SCHIFFAHRS KONTOR GMBH & ANOR V. RIVWAY LINES LTD (1998) 4 SCNJ 18 AT

29 or that there is no room for applying any of the principles of interpretation which are merely presumptuous in cases of ambiguity in the statute.
The next relevant principle here to consider is whether the express mention of one thing in a Statutory provision automatically excludes any other, authorities abound that in Law, the express mention of some things is an express exclusion of the things not mentioned. See EBUBEDIKE V FRN & ORS (2013) LPELR-22061(CA) where BAGE, JCA (as he then was) had this to say:
“It is trite Law that where the Constitution or the statute confers exclusive power to an organ or body, those not specifically mentioned are therefore excluded. The Supreme Court in the case of the ATTORNEY GENERAL OF BENDEL STATE & 2 ORS. VS. AIDEYAN (1989) 9 SC 127 stated as follows: “It is now firmly established that in the construction of a statutory provision where a statute mentions specific things or persons the intention is that those not mentioned are not intended to be included.” On the same point also see EHUWA vs. ONDO STATE (2006) 11 – 12 S.C. 102.”
Magistracy was created by a State Law and not mentioned as a judicial

office or judicial officer by the Constitution and if it is to be interpreted literarily, then it was obviously excluded by the legislature and I would say for a purpose. The Appellant, as a Chief Magistrate cannot be included by the literal interpretation of the definition of the phrase ‘Judicial Officer’ as he seeks the Court to do because he has obviously been excluded by the fact that the said Section 318(1) defined what a Judicial Office means and those who are Judicial Officers. The Appellant contended that the Constitution accommodates him contextually and explicit definition cannot discriminate between the categories of Judicial Officers, therefore, he is also covered by the definition and should retire at 65years. There is no magic of interpretation that can include a Chief Magistrate if we have to obey the principle of literal or ordinary meaning interpretation of the particular Constitutional provision because doing otherwise will do grave violence to the provision.
The salient points the Appellant deliberately failed to consider is if he was appointed under a State Law, High Court Judges also come under the State Pension Law, so can

he seek a declaration that he is not covered by State Law which stipulated retirement age? The Appellant did not say how he translated to being covered by a specific Constitutional provision which clearly and deliberately named those covered. One can stretch it to the method of appointment and disciple of those mentioned in the Constitution, the role played by the National Judicial Council. The Appellant is not under the disciplinary powers of National Judicial Council. The Appellant has nothing whatsoever to do with the National Judicial Council. The Council that controlled his appointment and tenure of service is the Judicial Service Commission of Benue State which of course kept his record of service for the computation of his terminal benefits. All those mentioned in Section 318 of the Constitution have their appointments and discipline controlled by NJC and the powers of NJC are circumscribed by the Constitution so how could the Appellant enjoy provisions meant to be applied by the NJC when no provision of the Constitution gave the State JSC similar retirement age to cover judicial officers serving in other Courts created by the State.

I agree with the Counsel to the Respondent that the Appellant utilized his time after retirement very well by advancing academic theories which do not have any bearing to any live issue. He deliberatively closed his eyes to the obvious and the era of technicalities is over. The Appellant deserves sympathy but adjudication has no place for sentiments or academic arguments which are meant for educational institutions.

Most of the arguments covered under issues 4, 5, 6, 7, 8 and 9 are misconceived, academic and do not serve any utilitarian value. Their determination is subsumed in the determination of the two issues settled by the Respondent here. The Appellant complained further that the trial Court did not consider all issues presented for determination, a look at the record shows that one sole issue was settled at the pretrial for determination and which the trial Court duly determined, so which other issue was left undetermined? The Court is not bound to pick arguments or rehash them in the judgment. It is also trite that most times the determination of the issue takes care of points in issue and in which case there is no need to mention them specifically because

they have been subsumed under the main issue determined. In the same vain, when the main claim fails and other subsidiary reliefs which take their root from the main claim would automatically fail. In such a case, failure to specifically mention the relief would amount to a mere irregularity except the party complaining can establish that it occasioned a miscarriage of justice.

The Appellant under his issue 4 contended that the Court below failed to make a declaration that the Benue State Pensions and Gratuities Law 1990 Cap 125 does not apply to him. When the main claim of seeking to be covered by the retirement age of 65 years failed and the Appellant did not cite any Constitutional or Statutory provision which he seeks to apply to him with regards to his pension being a retiree of the Benue State Government, the Appellant cannot ask the Court to make an unenforceable order, it is against the practice of the Court. See UNIJOS V IKEGWUOHA (2013) LPELR-20233 (SC) which held thusly:
“It is trite that a Court of Law will not make an order in vain or an order which is incapable of enforcement.” Per ALAGOA, J.S.C.
I find the arguments of the Appellant a

clear misconception of the Law and practice, this is because the Judicial Officers recognized by the Constitution but serving in the Superior Courts of record in the States still enjoy their Pension under the State’s Pension Law so to ask that a declaration be made that he should not come under the State Pension Law is absurd, comical and ludicrous to say the least. Which Pension Law does he intend to benefit under as a retiree of the State? A legal practitioner should always do a thorough evaluation of his case in the context of prevailing Laws before placing his demand for certain reliefs before the Court.

There was no justified basis for such a relief when the Appellant is a retiree of the State. He can, however, forfeit his benefits under the Law since he is not under any compulsion to enjoy his retirement benefits under the Law, he can waive it and he does not need an order of Court to do so. It is a personal benefit which he can forgo or waive. See NIGERIA PORTS PLC V DUNCAN MARITIME VENTURES (NIG) LTD (2010) LPELR-4602(CA) on the principle of waiver, wherein the Court held:
“As a principle of general rule, the concept of waiver denotes

an intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted upon. It is in succinct, an abandonment of a right. This principle has been well defined and enunciated by their Lordships of the apex Court in the case of Auto Import Export v Adebayo under reference supra, and wherein Ogbuagu JSC has this to say at page 122 of the report:- “The concept of waiver, is said to be that a person who is under no legal liability and having full knowledge of his right or interest conferred on him by Law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those right or that he has been denied the enjoyment of those interests. See Ariori & Ors. V Elemo & Ors (1983) 1 SC 13 at 48-49; (1983) 1 SCNLR 1 at 25 per Eso, JSC; Ezomo v Oyakhire (1985) 1 NWLR (Pt.2) 195; Adegoke Motors Ltd. v Dr. Adesanya & Anor (1989) 3 NWLR (Pt.109) 250 at 292. To amount to a waiver – express or implied, two elements it is settled, must co-exist, namely:- i. The party against whom the doctrine is raised, must have

knowledge or be aware of the act or omission which constitutes the waiver and ii. He must do some unequivocal act adopting or recognizing the act or omission. See Olatunde v Obafemi Awolowo University & Anor (1998) 5 NWLR (Pt.567) 178… Ariori & Ors. V Elemo & Ors (supra) were referred to.” In order to establish a waiver, it must therefore be shown that some step has been taken which is only necessary or only useful if the objection has been actually waived or has never been entertained. See Dr. Saraki v Kotoye (1990) 4 NWLR (Pt.143) 144; (1190) 6 SCNJ 31. Also in the case of Ariori & Ors. V Elemo & Ors (supra) which was referred to in the authority of Odu’a Investment Co. Ltd. v Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe JSC, at page 22 of the NSCC Report while defining the word waiver, had this so say:- “By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore implies a dispensation or abandonment by a party waiving of a right or privilege which as his option, he could have insisted upon.” Obaseki, JSC on his part at page 25 of

the same report, opined as follows:- “Waiver is according to Words and Phrases legally defined, Vol.5 p.301 1969 Edition – reprinted 1874 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exist.” Furthermore and in the case of Caribbean Trading & Fidelity Corporation v NNPC (1992) 7 NWLR (Pt.252) 161 at 185, Tobi, JCA, as he then was had this to say:- “Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of Law will hold that he has waived his right.” The learned respondent’s counsel by his submission as to what constitutes a waiver, cited the case of Auto Import Export v Adebayo supra, wherein the definition relates to “the intentional and voluntary surrender of a known privilege or right by a party entitled to same which at his option he could have insisted upon.” Per OGUNBIYI, J.S.C.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now to the vexed issue that the trial Judge did not consider his case as judicially expected, I say that every Judge has his personal style of judgment writing and therefore there is no single standard or acceptable form of writing a judgment as long the judgment captures the essential ingredients of a valid judgment and resolves the issue or issues for determination. See USIOBAIFO & ANOR V USIOBAIFO & ANOR (2005) LPELR-3428(SC) which held as follows:
“There is no constitutional requirement as to a particular format in the writing of a judgment. There is no statutory format either. Judgment writing being an art, needs the peculiar and personal dexterity of the Judge who is the “artist”. No two artists convey exactly the same painting from an assigned object. So too, no two Judges write judgment using exactly the same house style and the same coloration, and all that. Each Judge has his own peculiar style and once the judgment contains the major attributes of a good judgment, an appellate Court will not interfere. Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in the field of

mathematics. A Judge is not bound to follow the method or methodology stated by Counsel in his brief. Once a judgment of a trial Judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of Counsel, if Counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate Court cannot hold that the judgment is not properly written.” Per TOBI, J.S.C.

A party on appeal has the unfettered right to pick errors that occasion a miscarriage of justice without being personal against the Judge. It is injudicious and pedestrian to want to import the definition of Judicial Officer provided in the Code of Conduct for Judicial officers or other legislations in the interpretation of the Constitution which in fact defined the word and therefore there is no need to go outside to import a definition. The Appellant raised an issue that the trial Judge declined to use of a dictionary in preference for the Constitutional definition. The apex Court in setting the principles of interpreting the Constitution said the words in the in the Constitution should be given their

literal meaning, so why should a Judge go outside the Constitution in search for the meaning of a Judicial Officer when the particular words were defined by the same Constitution. Why then would anybody go outside the Constitution in order to get a definition when the instrument defined the words? It sounds preposterous to even think of doing that. The Court is not an academic institution where theories thrive and such academic exercises are simulated for the sake of intellectual capacity building. Not so with the Courts, a Court is meant to determine a dispute between parties, real life issues, the role and duty of a Judge was described in the case of NEWSWATCH COMMUNICATION LTD V ATTA (2006) LPELR-1986(SC) thus:
“It is trite Law that the primary duty of a Judge in the adjudication of cases is to do justice to the parties without fear or favour. See Sha (Jnr) v. Kwan (2000) 8 NWLR (Pt. 670) 685. He or she should not be carried away by sentiment or undue adherence to legal technicality. He or she must be impartial, fair and just to both parties, and because of the double sided nature of justice and fairness, the Judge must be even handed. In our adversary

system, it is incumbent upon the parties in a case, to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire, will adjudicate on the issues in controversy. That is the epitome of fair trial. See Calabar East Cooperative Thrift and Credit Society Ltd. & Ors v. Etim Emmanuel Ikot (1999) 14 NWLR (Pt.638) 225 at 242.” Per KALGO, J.S.C.
The Appellant desired to expand and stretch the meaning of Judicial Officer but that is not possible where the definition in the Constitution has restricted its meaning. The State Law that created the Magistracy could have defined them as Judicial Officer but that does not mean they can belong to the class defined in the Constitution that being legislation below the Constitution. Therefore the simple answer is that the Appellant cannot enjoy the provision of Section 291 (2) and (3) of the Constitution which relate to retirement age of judicial officers. It provides thus:
“(2.) A Judicial Officer appointed to any other Court, other than those specified in Subsection (1) of this Section may retire when he attains the age of sixty years and shall cease to hold office

when he attains the age of sixty-five years.
(3.)(a) Any person who has held office as a judicial officer-
(a) for a period of not less than fifteen years shall, if he retires at or after the age of sixty-five years in the case of chief Justice of Nigeria, a Justice of the Supreme Court, the president of the Court of Appeal or a Justice of the Court of Appeal or at or after the age of sixty years in any other case, be entitled pension for life at the rate equivalent to his last annual salary and all his allowances in addition to any retirement benefits to which he may be entitled.”
The Appellant disagreed with the interpretation of the words any other Court in Subsection 2 above and submitted it gave a narrow and restrictive view of the said words. The said Subsection 2 clearly referred to Subsection 1 in respect of the words any other Court as it said other than those mentioned and a community reading of Section 291(1) and 318(1) will situate the any other Court to those mentioned in Section 318 that is Judicial Officer as defined in the Constitution. I agree with the trial Judge when at pages 134 of the record of appeal he said thus:

“Applying the above rule of interpretation, the expression “unless it is otherwise expressly provided” in Section 318(1) of the Constitution when given its ordinary meaning that the phrase “ any such office” can only be a reference to persons holding the offices named, therein. By definition, the phrase “any other Court” used in Section 291(2) of the Constitution cannot be interpreted to mean any other Court not mentioned in Section 230 – 284 of the Constitution. Clearly the latin maxim “expressio unis est exclusion alterius” applies in this case. If the Constitution had intended that the class of judicial officers which the plaintiffs belong to be included in the definition of “judicial officer” it would have expressly and clearly stated so. The Constitution itself has demonstrated that this omission is deliberate. For instance “public service of a state” has been defined in Section 318 (1) (b) of the Constitution thus-
“(b) Member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal, or other Courts established by this

Constitution or by a Law of a House of Assembly.”
Section 318(1) of the Constitution would have expressed in similar terms the definition of “Judicial Officer” if it intended that Judicial Officers manning the Courts created for the State be included in the definition.

The trial Judge clearly understood the argument of the Appellant and aptly captured the essence of those Constitutional provisions and I agree with him. Now to the Complaint that the Court below was wrong in dismissing the claim, the duty of the Court is determine the claim according to Law as applied to the facts and to do justice, the duty of the Court is to do substantial justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. Judges are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of reasoning is and as humanly possible, would be devoid of technicalities. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013).

See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476-417. The need to do substantial justice and avoid delving into the error of technicalities is well settled. It was also Tobi, JSC (of blessed memory) who in the case of INAKOJU V ADELEKE (2007) LPELR-1510(SC) said:
“It is good Law that justice is not only for the plaintiff. It is not also only for the defendant. It is for both parties. I do not see why the appellants should complain if the Court in the interest of doing substantial justice and in consideration of the time element and the facts before the trial Judge, dismissed the case of the Appellant.”
The duty of a Court in rendering judgment was described as follows:
“A Court is a Court of both Law and facts. It has no other source of generating its decision except from the facts of the case established before it. See Chedi v Attorney General of Federation (2006) 3 NWLR (Pt. 997) 308. In rendering its decision over a particular dispute, the primary duty of the Court is to fully consider conscientiously the totality of the evidence of the parties based on the issues in dispute before handing down

its decision. The facts of each case constituted in the evidence before the Court, are important in determining the issues and the outcome of the case. They guide the Court in the eventual outcome of the case.” See A.G. ABIA STATE V A.G. FEDERATION (2006) 16 NWLR (PT. 1005) 265.

The Appellant in putting forward his complaints against the judgment used strong language against the trial Judge which is short of raw insult, for example the Appellant alleged the Judge failed to apply his judicial mind and showed least understanding of the Constitution and such caustic remarks which are not the hallmark of a learned gentle man of the bar. A party or counsel has the right to identify error committed by the Judge in arriving at a decision and that is why the Appellate Courts are there to correct any errors. The Appellant believed so much in his arguments put forward that he used uncouth language against the trial Judge. I have read the judgment appealed against and I do not see the error that occasioned a miscarriage of justice so as to warrant such use of harsh words.
The Appellant express a genuine complaint to high light errors of the Court in a

civil manner and not go personal against the Judge. A Court is not bound to agree with a party or rely solely on authorities cited by such a party. The Court has unfettered right to use any other authorities generated from personal research. No matter the discontent with a judgment, a Counsel should not use disparaging remarks in challenging the decision of a Court on appeal. A Counsel must be civil in his use of language against a judgment. The trial Judge has a right to determine the matter as he understood it and in disagreeing with decisions, a Counsel should still show respect and be decent in putting forward his views. I strongly deprecate the language used by the Appellant against the person of the trial Judge. That is not the language befitting of a minister in the temple of justice.

Having resolved both issues adopted for resolution against the Appellant, the appeal lacks merit and is hereby dismissed. The judgment of HON. JUSTICE E. N. KPOJIME delivered on the 8TH February, 2018 is hereby affirmed.
I make no order for cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned

brother, HON. JUSTICE Y.B. NIMPAR, JCA and I am in complete agreement with his reasoning and conclusion.

The Appellant hinged his argument on the provisions of Section 291 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) which provide as follows:
“(2) A Judicial Officer appointed to any other Court, other than those specified in Subsection (1) of this Section may retire when he attains the age of sixty years and he shall cease to hold office when he attains the age of sixty-five years.
(3) Any person who has held office as a Judicial Officer:
(a) for a period of not less than fifteen years shall, if he retires at or after the age of sixty-five years in the case of the Chief Justice of Nigeria, a Justice of the Supreme Court, the President of the Court of Appeal or a Justice of the Court of Appeal or at or after the age of sixty-years in any other case, be entitled to pension for life at rate equivalent to his last annual salary and all his allowances in addition to any other retirement benefits to which he may be entitled;
(b) for a period of less than fifteen years shall, if he retires

at or after the age of sixty-five years or sixty years, as the case may be, be entitled to pension for life at a rate as in paragraph (a) of this subsection pro rate the number of years he served as a judicial officer in relation to the period of fifteen years, and all his allowances in addition to other retirement benefits to which he may be entitled under his terms and conditions of service; and
(c) in any case, shall be entitled to such pension and other retirement benefits as may be regulated by an Act of the National Assembly or by a Law of a House of Assembly of a State.”

Section 1(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) further provides thus:-
“1(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. ”
See also Nwankwo vs. The State (1985) NCLR 228 at 237;

Tony Momoh vs. Senate (1981) 1 NCLR 337; Chike Obi vs. DPP (1961) 1 NLR, NCLR 293 at 326; Wallace-Johnson vs. The King (1940) A.C. 231; Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 6 SC 158 per Nnamani, JSC; Ariori & Ors. vs. Elemor & Ors. (1983) All NLR 1 at 19 per Eso, JSC.

The contention of the Appellant on the above provisions (Section 291(2) and (3) of the 1999 Constitution was that he was appointed a Senior Magistrate 1 by the Benue State Judicial Service Commission and on the 18th day of January, 2017, he was reminded of his mandatory retirement upon attainment of the 60 years in service in line with the applicable Laws of Benue State Government.

However, the Appellant admitted his age as being 60 but contended that his retirement age is 65 in accordance with Section 291 (2) of the 1999 Constitution (supra) and not 60. He further contended that the Benue State Pensions and Gratuities Law did not apply to his Office as a Judicial Officer according to him.

The 1999 Constitution created Superior Courts of Records in Nigeria under Section 6(5)(a)-(j) to wit:
“(5) This section relates to-
(a) The Supreme Court of Nigeria;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(b) The Court of Appeal;
(c) The Federal High Court;
(cc) The National Industrial Court;
(d) The High Court of the Federal Capital Territory, Abuja;
(e) A High Court of a State;
(f) The Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) A Sharia Court of Appeal of a State;
(h) The Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) A Customary Court of Appeal of a State
(j) Such other Courts as may be authorized by Law to exercise jurisdiction on matters with respect to which the National Assembly may make Laws.”
The Constitution did not directly mention Magistrate’s Court and other inferior Courts of Records. However, Section 6(5)(k) of the 1999 Constitution enjoined the State Houses of Assembly to make Laws establishing such other Courts as may be authorized by Law to exercise jurisdiction at first instance or on Appeal on matters with respect to which a House of Assembly may make Laws beside those specifically mentioned in Section 6(5)(a)-(j) of the 1999 Constitution (supra). Despite the creation of the superior Courts of Record by the Constitution,

each of these Courts has a statutory Law that can be said to establish it. See Chief Tajudeen Olaleye-Ote & Anor vs. Alhaji Fanlatu Babalola (2012) LPELR-9275 (SC) per Galadima, JSC at pages 20-21 paras. G-E.

Section 4 of the Pensions Rights of Judges Act, 1991, Law of the Federation of Nigeria, 2004 provides as follows:-
“4. In this Act, unless the context otherwise requires: “Judicial Officer” means the holder of the office of the Chief Justice of Nigeria or a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the Office of the Chief Judge of the Federal High Court, the Office of the President or Judge of the National Industrial Court, the Office of the Chief Judge of or Judge of the High Court of the Federal Capital Territory, Abuja, the Office of the Chief Judge of a State or Judge of the High Court of a State, a Grand Kadi or Kadi of the Sharia Court of Appeal of a State or President or Judge of the Customary Court of Appeal of a State and a reference to a “Judicial Officer” is a reference to the holder of such Office.”

The position of the Law is trite that the express mention of one or more things of

a particular class may be regarded as silently excluding all other members of the class i.e. expressum facit lessare taciturn. This means that the express mention of one thing in a statutory provision or Constitution automatically excludes any other which otherwise would have been included by implication. It is also good Law that as a general rule of construction of statute or Constitution that a Court is not entitled to read into a Statute/Constitution words which are excluded expressly, or impliedly from it as it is well established and cardinal principle of interpretation that where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid. See Lawal vs. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 124; Awolowo vs. Shagari (1979) 6-7 SC 51, (2001) FWLR (Pt. 73) 53; Udoh & 2 Ors vs. Orthopaedic Hospitals Management Board & 1 Ors (1993) 7 SCNJ (Pt.2) 436, Karibi-Whyte, JSC held at page 443; PDP vs. INEC (1999) 11 NWLR (Pt. 626) 200; Attorney-General, Ondo State vs. Attorney-General, Ekiti State (2001) FWLR (pt. 79) 1431 per Karibi-Whyte, JSC at pp. 1472-1473;

Buhari vs. Dikko Yusuf (2003) 14 NWLR (Pt. 841) 446; A-G Bendel vs. Aideyan and Attorney-General, Abia State vs. Attorney-General, Federation (2005) All FWLR (Pt. 275) 414 per Ejiwumi, JSC at page 450.
In Maxwell on the Interpretation of Statutes, 12th Edition, appears the following passage at page 293 to wit:
“Expressio Unius Exclusio Alterius:
By the rule usually known in the form of this Latin maxim, mention of one or more things of a particular class may be regarded as silently excluding all other members of the class: expressum facit cessare tacitum. Further, where a statute uses two words or expressions, one of which generally includes the other, the more general term is taken in a sense excluding the less general one otherwise there would have been little point in using the latter as well as the former.”
The phrase expressio unius est exclusio alterius Rule means the express mention of one thing in a statutory provision, as herein, the Constitution which is the grundnorm, automatically excludes any other stipulation which would otherwise have been applied by implication. See Ogbunyiya vs. Okudo (1979) 6-9 SC 32 and

Sun Insurance Nigeria Plc vs. Umez Engineering Construction Company (2015) LPELR-24737 (SC) per Fabiyi, JSC at pages 24-25, paras. E-A.

Ejusdem generis Rule is one of the recognized canons of interpretation of the Constitution or statute which is to the effect that where particular words are followed by general words, the general words are limited to the same kind as the particular words, unless, of course, there will be something to show that a wider sense was intended. See Allen vs. Emmerson (1944) 1 KB 362; Shell vs. F.B.I.R. (1996) 8 NWLR (Pt.466) 256 and Chief Joseph Adolo Okotie-Eboh vs. Chief James Ebiowo Manager & Ors. (2004) LPELR-2502 (SC) per Edozie, JSC at page 31, paras. C-E.

Again, let it be emphasized that this canon of cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect must be given to them without resorting to any aid, internal or external, is of jurisprudential antiquity. Accordingly, it is the duty of the Courts to interpret the words of the Lawmaker as used for those words may be ambiguous, but even if they are, the power and duty of the Court to travel outside them

on a voyage of discovery are strictly limited. See Magor and St. Mellow R.D.C. vs. Newport Corporation (1951) 2 All E.R. 839; London Transport Executive vs. BETTS (1959) A.C. 231, Attorney-General of Bendel State vs. Attorney-General of the Federation & Ors (1981) 10 SC 1, (1981) 102 NSCC 314 and Attorney-General, Bendel State vs. Attorney-General, Federation (2001) FWLR (Pt.65) 448.

The pertinent questions to ask now are whether the Appellant has any cause of action against the Respondents to warrant the initiation of this suit or whether the action was initiated by due process of Law in the Lower Court for hearing and determination in his favour. It is the trite position of the Law that a cause of action accrues when there is someone to sue and all the facts that would ground an action have happened and a cause of action is the factual situation which a Plaintiff relies upon to support his claim, recognized by the Law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. The factual situation must, however constitute the essential ingredients of an enforceable right as claimed. See

Asaboro vs. Pan Ocean Oil (Nig.) Ltd. (2006) 4 NWLR (Pt.971) 595; Mobil Oil Plc vs. DENR Ltd. (2004) 1 NWLR (Pt.853) 142; NICON Insurance Company vs. Olowofoyeku (2006) 5 NWLR (Pt. 973) 244. See also Bauchi State Agricultural Development Programme vs. Alhaji Abubakar (2011) LPELR-9228 (CA) per Ndukwe-Anyanwu, JCA at pages 15-16, paras. B.A.

The position of Law remains settled that the burden is on the party that asserts the existence of a particular thing or situation to prove the same and he who asserts must prove. See Philips vs. Eba Odan Commercial & Industrial Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618 and Mr. Sunday Okegbe & Ors. vs. Ejighe Akpome & Ors. (2013) LPELR-21969 (CA). Section 131 of the Evidence Act, 2011 also provides as follows:
“131(1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
See also the recent cases of Idahosa vs. Idahosa (2020) LPELR-52018 (SC) per Peter-Odili, JSC at pages

15-21, para. C; Igba & Ors. vs. Angbande & Ors. (2021) LPELR-53295 (CA) per Agube, JCA at pages 56-60, paras. C-B and Mamman & Ors. vs. Tukura & Ors. (2021) LPELR-53297 (CA) per Nimpar, JCA at pages 16-17, paras. E-F.

Another important question which desires an answer in this appeal is whether the act of the Appellant to claim/build his case on the provisions of the Constitution where neither the Constitution nor any Federal Statute expressly or impliedly provides for such entitlements/rights accruable to his office as a Magistrate in his favour, is void or voidable? In Macfoy vs. United Africa Co. Ltd. (1961) 3 All E.R. 1169, Lord Denning held at page 1172 that:
“…If an act is void, then it is in Law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.”

See also Akinfolarin vs. Akinnola (1994) 4 SCNJ (Pt. 1) 30 at 48-49; Aladegbemi vs. Fasanmade (1988) 3 NWLR (Pt.81) 129; Rossek vs. ACB Ltd. (1993) 8 NWLR (Pt.312) 382.
When an act is void, it remains void and nobody, not even a Court can validate it or give life to it. In the same vein, an act that is null and void is incapable of binding any one or giving rise to any rights or obligation under any circumstances. See Ishola vs. Ajiboye (1998) 1 NWLR (Pt. 532) 71 at 74 and the recent cases of Mazi Herbert Uduche & Ors. vs. John Uduche & Anor (2017) LPELR-42884 (CA) and Apostle Ekanem R. Ekanem & Ors. vs. Bishop Rowland O. Obu (2010) LPELR-4048 (CA) per Ngwuta, JCA (as he then was, of blessed memory) at pages 13-14, paras. G-A.

The burden of proof rested on the Appellant to establish that he is a Judicial Officer and entitled to the benefits under Section 291 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and to prove that there is an exception in the application of Section 291 (2) and (3) to his Office as a Magistrate employed under the Government of Benue State.

In my humble view, by virtue of Section 318(1) of the 1999 Constitution of the Federal Republic of Nigeria, “Judicial Officer” refers to the holder of any “Office of Chief Justice of Nigeria or a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the office of the Chief Judge or a Judge of the Federal High Court, the office of the President or Judge of the National Industrial Court, the office of the Chief Judge or Judge of the High Court of the Federal Capital Territory, Abuja, the office of the Chief Judge of a State and Judge of the High Court of a State, a Grand Kadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, a President or Judge of the Customary Court of Appeal; of the Federal Capital Territory, Abuja, a Grand Kadi or Kadi of the Sharia Court of Appeal of a State.”
Accordingly, it is my candid view without mincing words, that the Appellant (being a Magistrate) is not among the holders of any Judicial Office in Nigeria as expressly stipulated in the 1999 Constitution of the Federal Republic of Nigeria by Section 318(1) thereof and he cannot allege and speculate before a

Court as the Law is settled that Courts do not speculate but decide issues on facts established before them and on Laws and that they must avoid conjectures and speculations. See Agip (Nig.) Ltd. vs. Agip Petroli International & Ors (2010) All FWLR (Pt.520) 1198 at 1249 paras. A-C.
The Apex Court held in Oba J.A. Awolola, The Ededa of Edaoniyo Ekiti vs. The Governor of Ekiti (2018) LPELR-46346 (SC) per Eko, JSC at pages 46-47, paras. D-B that: “The Appeal founded on this gross misconception of the basic facts completely rests on a mere phantom; a complete speculation that is utterly unreasonable and unrealistic. The Law is trite and well settled that the Courts and the parties in litigation do not act on speculations: Engr. Frank Okon Daniel vs. INEC & Ors. (2015) LPELR-24566 (SC); Plateau State Government vs. A-G, Federation (2006) 3 NWLR (Pt. 967) 346; Ezerebo vs. Ehindero (2009) 10 NWLR (Pt.1148) 166. The Courts act only on empirical facts provided by the parties… It is my firm view that all these while we have been misled in this case by mere speculation that Tijjani Abdullahi, JCA offered an opinion in the Appeal No.CA/IL14/2002/CA/IL/M.14/2002

that he did not participate in the hearing of. That speculation, as I have herein demonstrated, is completely unfounded and unfortunately misleading.
On the whole, the Appellant was/is a day dreamer to imagine that he is a Judicial Officer as consecrated in Section 291 (2) and (3) of the Constitution which is the ground norm of our dear Country Nigeria. Unless and until the Appellant initiates a Bill to the National Assembly or if he had acted timely to have included his agitations as part of the items/agenda of the Constitutional Amendment/Review Committee by the National Assembly that is about to undergo public hearing, perhaps his vaunting ambition to become a Judicial Officer would have been realized if he is supported by public opinion. For now, the Appellant is fighting a futile battle and should withdraw to his cocoon and leak his wounds pending when he shall be born again.

In the light of the above reasons and the fuller reasons advanced by my learned brother in her erudite judgment, I shall also dismiss this phantom appeal with the ignominy it deserves for being unmeritorious. I also abide by the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now the lead judgment just delivered by my learned brother NIMPAR, JCA and I agree with the reasoning and conclusions reached therein.

The appeal lacks merit and is accordingly dismissed by me.

The judgment of the High Court of Benue State, sitting in Makurdi, per Hon. Justice E. N. Kpojime, J., and delivered 8th February, 2018 is hereby affirmed.
I make no order as to cost.

Appearances:

Appellant by himself. For Appellant(s)

S.C. EGEDE (Solicitor General Benue State) with him, A. OMENKA ADCL MOJ Benue State. For Respondent(s)