HAKIDO KPEMA V. THE STATE(1986)

HAKIDO KPEMA V. THE STATE

In The Supreme Court of Nigeria

On Friday, the 7th day of February, 1986

SC.156/1985

JUSTICES

AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria

ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria

KAYODE ESO Justice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria

DAHUNSI OLUGBEMI COKER Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria

Between

HAKIDO KPEMA Appellant(s)

AND

THE STATE Respondent(s)

RATIO

WHETHER OR NOT A JUDGEMENT DELIVERED AFTER THREE (3) MONTHS IS IN CONTRAVENTION OF SECTION 258 OF THE 1979 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

…There was a contravention of section 258 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979 which states-
“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses.
In Chief Ifezue v. Mbadugha & Anor. (1984) 1 S.C.N.L.R. 427; (1984) 5 SC 79 this Court (Irikefe, J.S.C (as he then was), Bello, J.S.C. (dissenting) and Obaseki, Eso. Aniagolu, Nnamani and Uwais. J.J.S.C) held that the provisions of section 258 subsection (1) were mandatory and any judgment delivered outside the period of three months was null and void. The same decision was followed in Paul Odi & Anor. v. Osafile & Anor. (1985) 1 NWLR 17 (Sowemimo, C.J.N., Irikefe, J.S.C (as he then was) Bello, Obaseki, Eso, Kazeern & Coker, J.J.S.C). It is clear therefore that the judgment delivered by Aghahowa, J. sentencing the appellant to death was a nullity. Since it was a nullity the learned trial judge had the inherent jurisdiction ex debito justitiae to declare it null and void – Craig v. Kanseen (1943) 1 All E.R. 108, and Kofi Forfie v. Barima Kwabena Seifa (1958) A.C. 59. PER UWAIS, J.S.C.

WHETHER OR NOT AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO FILE A NOTICE OF APPEAL CAN BE GRANTED IN RESPECT OF CASES WITH DEATH SENTENCE

Following a plethora of authority – The Queen v. Akpan John Nda, 2 FSC 29; Berepegha Frubide v The State. (1969) 1 All N.L.R. 255, Egbo Ojojo v. The State (1970) 1 All N.L.R. 33 and Neeyode Peba v The State, (1980) 8-11 S.C. 76 – it is now settled that when a notice of appeal, in a case of conviction involving sentence of death, is given out of time, that is, not given within 30 days, this Court will strike-out the case for being incompetent in view of the provisions of section 31 sub-section (1) and (2)(b) of the Supreme Court Act, 1960. The section provides-
“31-(1) When a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by sub-section (2) of this section that is applicable to the case
(2) The periods prescribed for the giving of notice of appeal or application for leave to appeal are
(3) in an appeal in a criminal case, thirty days from the date of the decision appealed against.” PER UWAIS, J.S.C.

WHETHER OR NOT THE APPELLATE COURT HAS THE DUTY TO ENTERTAIN A PLEA AS TO THE JURISDICTION OF THE COURT EVEN IF IT WERE NOT RAISED AT THE TRIAL COURT

It is the duty of the appellate court to entertain a plea as to jurisdiction at any stage, even if the point was not raised in the court below. See Chief Kwame Asante v. Chief Kwame Tawia (1949) WN 40.PER OBASEKI, J.S.C.

THE PRINCIPLE OF LAW IS THAT WHERE AN ISSUE RAISED BEFORE A COURT IS ONE OF NULLITY, SUCH COURT EX DEBITO JUSTITIAE IN ITS INHERENT JURISDICTION CAN SO DECLARE

It is well settled that where an act is void and a nullity in law it is stricto sensu unnecessary for the person concerned by the act, because no legal effect results from such an act, to apply to have them set aside. Where the issue raised before a Court, is one of nullity, such court ex debito justitiae in its inherent jurisdiction so declare- See Anlaby v. Praetorius (1888) 20 QBD 764; Craig v. Kansen (1943) 1 All ER. 108; Forfie v. Seifa (1958) AC.59 Lazard Brothers & Company v. Midland Bank Ltd. (1933) AC.289. PER KARIBI-WHYTE, J.S.C.

WHETHER OR NOT A VOID TRANSACTION CAN BE SET ASIDE

This Court has similarly declared in Animashawun v. Osuma (1972) 4 S.C. 200 at p. 212 where it was said,
“In the first place, when a party believes or has reason to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that the transaction is null and void. Moreover,we observe with respect that a void transaction cannot be set aside because being void ab initio there could be nothing set aside.”
This view was adopted and applied in Akpene v. Barclays Bank (1977) 1 S.C.47 and N.H.D.S. v. Mumuni (1977) 2 SC. 52. These cases cited and relied upon the dictum of Denning LJ. in Macfoy v. United African Company Ltd. (1961) 3 All E.R. at p. 1172.
The effect of making a declaration on a void transaction is the unequivocal assertion that the matter so referred to was never in existence. See Peenok Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1. In Tika Tore v. Abina (1973) 4 S.C. 63. PER OBASEKI, J.S.C.

UWAIS, J.S.C. (Delivering the Leading Judgment): The appellant was charged with culpable homicide punishable with death under section 221 subsection (1) of the Penal Code in the High Court of Gongola State sitting in Yola. The trial began on 15th June, 1980 before Aghahowa, J. and continued with series of adjournments up to 17th December, 1981 when it was adjourned to 8th February, 1982 for judgment. However, no judgment was delivered on that day until 5th April, 1982. The appellant was found guilty as charged and was sentenced to death.
On 19th March, 1981 the appellant filed a notice of appeal, which was very much out of time, in the Court of Appeal, Jos. The appeal came up for hearing before that Court on 20th March, 1985 but had to he adjourned to 27th March, 1985 because no counsel was assigned to represent the appellant. In the meantime an application for extension of time within which to appeal to the Court of Appeal was filed by the appellant on 26th March, 1985. This was done in order to regularise the purported appeal filed.
The appeal came up for hearing on 27th March. 1985 as previously adjourned. This time the appellant was represented by counsel assigned by the Legal Aid Council. Moving the application for extension of time, counsel for the appellant indicated to the Court of Appeal that the application was brought under Order 4 rule 5 of the Federal Court of Appeal Rules, 1981 and submitted that the Court of Appeal had power to grant the extension . under the provisions of section 25 subsection (2)(b) of the Federal Court of Appeal Act, J976 as amended by the Federal Court of Appeal (Amendment) Act 1982 which became operative on 25th July, 1982. However in the next breadth counsel for the appellant resiled from the submission by wrongly submitting that the application could not be granted because the appellant’s case “falls outside the operative date”, that is 15th July, 1982. Counsel then applied to withdraw the application. Counsel representing the State associated himself with the submissions made by the appellant’s counsel and relying on the provisions of section 25 subsection (4) of the Federal Court of Appeal Act, 1976 said, erroneously in my opinion, that the Court of Appeal was precluded from extending the time to appeal. Consequently, the Court of Appeal (per Akanbi, J.C.A. with Agbaje and Ogundare JJ.C.A. concurring) delivered the following ruling:
“I agree with the submissions by both counsels in this case. The appeal of the appellant was filed after the ninety days allowed by law had lapsed. This court cannot on the facts of this case extend the time within which to appeal. This is because the amendment to the Court of Appeal Act, (1976) which enables this court to extend time even in cases punishable with death came into force on 15th July, 1982. That being so, I have no alternative but to strike out (sic) the application for extension of time to appeal filed by his counsel. The appeal too not being competent is struck out.”
It is from the ruling that the appellant has appealed to this Court. Now it is pertinent to observe; at this stage, that although the appellant signed the notice of appeal to this court on 24th April, 1985, that is within the 30 days prescribed by section 11 subsection (2)(b) of the Supreme Court Act, 1961, the notice was not filed in the Court of Appeal until 3rd May, 1985. That is 37 days after the decision of the Court of Appeal. Ordinarily, therefore, the appeal before this Court seems to have been filed out of time. The question that arises then is: is there a competent appeal before us I will defer, till later in this judgment, the answer to the question.
The grounds of appeal which the notice contains read as follows:
“1. The learned appeal Court judges erred in law when they rejected the appellant’s explanation as to why his appeal was filed out of time, to wit:-
(a) That his defence counsel failed to carry out his instruction given to him to file the appeal within time.
(b) That the appellant was unable to get in touch with his counsel because he the appellant, was in prison custody and all efforts to get in touch with his counsel proved abortive.
2. The law frowns at allowing mere technicalities to defeat the end of justice.”
Mr. Achikeh, learned Deputy Director of Legal Aid, for the appellant, applied to us by way of motion on notice for leave to raise a constitutional point which was not raised in the Court of Appeal as well as for leave to file and argue additional grounds of appeal. Leave to do both was accordingly granted. The additional grounds of appeal in question, which are two in number, read thus:
“GROUND 1
The learned Justices of the Court of Appeal erred in law when they struck out the appeal of the Appellant and in effect upheld a void judgment of the trial Court.
Particulars of the Error
The learned Justices of the Court of Appeal struck out the appellant appeal without first considering the legal effect of the breach by the learned trial judge of the provisions of the S.258(1) of the Constitution (if the Federal Republic of Nigeria which made it imperative for the trial court to deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses.
GROUND 2
The learned Justices of the Court of Appeal erred in law when they failed to consider section 25(2)(b) and (4) of the Court of Appeal Act 1976 subject to the provisions of Section 258(1) of the Constitution of the Federal Republic of Nigeria.
Particulars
The learned Justices of the Court of Appeal failed to consider that time could not run against the appellant and that they could not be bound by section 25(4) of the Court of Appeal Act in this case where the judgment before them was null and void and of no effect, and that they had a duty to uphold the Constitution, the provisions of S.25(2)(b) and (4) of the Act notwithstanding.”
The grounds of appeal have raised weighty issues. There is no doubt that when the judgment in the trial court was delivered on 5th April, 1982 there was a contravention of section 258 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979 which states-
“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses.
In Chief Ifezue v. Mbadugha & Anor. (1984) 1 S.C.N.L.R. 427; (1984) 5 SC 79 this Court (Irikefe, J.S.C (as he then was), Bello, J.S.C. (dissenting) and Obaseki, Eso. Aniagolu, Nnamani and Uwais. J.J.S.C) held that the provisions of section 258 subsection (1) were mandatory and any judgment delivered outside the period of three months was null and void. The same decision was followed in Paul Odi & Anor. v. Osafile & Anor. (1985) 1 NWLR 17 (Sowemimo, C.J.N., Irikefe, J.S.C (as he then was) Bello, Obaseki, Eso, Kazeern & Coker, J.J.S.C). It is clear therefore that the judgment delivered by Aghahowa, J. sentencing the appellant to death was a nullity. Since it was a nullity the learned trial judge had the inherent jurisdiction ex debito justitiae to declare it null and void – Craig v. Kanseen (1943) 1 All E.R. 108, and Kofi Forfie v. Barima Kwabena Seifa (1958) A.C. 59. But he did not do so as the point did not, apparently, occur to him nor was it raised before him because the decision of this Court in Ifezue’s case was not given until more than a period of 2 years had elapsed after his judgment was delivered.
Apart from this, it is obvious from the provisions of Section 25 subsection (4) of the Federal Court of Appeal Act 1976 that the Court of Appeal was in error when it ruled that it had no power to grant the application for extension of time within which to appeal, in case where death sentence was involved, unless the decisions in such cases were given on or after 15th July, 1982. Now prior to that date section 25 of the Federal Court of Appeal Act, 1970 read as follows:
“25.-(1) When a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such matter as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are – (3) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, he allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in sub-section (2) and (3) of this section except in the case or a conviction involving the sentence of death.”
By the provisions of section 6 of the Federal Court of Appeal (Amendment) Acts, 1982 the provisions of section 25 subsection (4) of the Federal Court of Appeal Act, 1976 were amended by the deletion of the words “except in the case of a conviction involving the sentence of death.” The amendment took effect from 15th July, 1982 and it was meant to affect the jurisdiction and the procedure in criminal cases in the Court of Appeal. There is nothing in the provisions of the 1982 Act which suggests that no extension of time could be granted in respect of cases with death sentence whose time of appeal, viz 90 days, expired by 14th July, 1982, as is the case with the present appeal. I am unable therefore to understand the reason why the learned Justices of the Court of Appeal came to the conclusion that they could not grant the appellant’s application for extension of time.
It is now convenient to answer the question which I posed. Following a plethora of authority – The Queen v. Akpan John Nda, 2 FSC 29; Berepegha Frubide v The State. (1969) 1 All N.L.R. 255, Egbo Ojojo v. The State (1970) 1 All N.L.R. 33 and Neeyode Peba v The State, (1980) 8-11 S.C. 76 – it is now settled that when a notice of appeal, in a case of conviction involving sentence of death, is given out of time, that is, not given within 30 days, this Court will strike-out the case for being incompetent in view of the provisions of section 31 sub-section (1) and (2)(b) of the Supreme Court Act, 1960. The section provides-
“31-(1) When a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by sub-section (2) of this section that is applicable to the case
(2) The periods prescribed for the giving of notice of appeal or application for leave to appeal are
(3) in an appeal in a criminal case, thirty days from the date of the decision appealed against.”
A close examination of the appellant’s notice of appeal to this court shows that it was thumb impressed by him 24th April, 1985, that is 29 days from the date of the ruling of the Court of Appeal. The notice was therefore prepared within the prescribed time. The appellant’s signature was attested to by, it seems, an official of the Legal Aid Council who wrote his address as “Legal Aid Council. Box 6110, Jos.” The appellant’s own address for service was Jos Prison. The notice of appeal bears the stamp of the Court of Appeal which was dated 3rd May, 1985. What these facts appear to suggest is that the appellant after signing the notice must have given it to either the prison authorities or the official of the Legal Aid Council to be delivered to the Registrar of the Court of Appeal, Jos, since he could not, in the circumstance in which he found himself, that is having been kept in prison custody, take the notice to the Registrar.
Now, the facts in Monday Enweliku v. the State (1970) 1 All N.L.R. 55 are similar to those in the present case. In that case this Court considered the manner in which a notice of appeal was to be given. The following observation was made by Coker, .J.S.C. on page 59 thereof-
“In the case of an appellant from a conviction for murder, it is common knowledge that he can do no more than hand over his notice of appeal to the prison authorities for onward transmission to the Registrar of the court which convicted him. It appears to us therefore that it would by the same argument for registered posting be injudicious to damnify such an appellant for any delay which might have occurred in the course of the transmission of his notice of appeal by the prison authorities, to request the prison authorities to expedite action on such processes is beside the point in con although the desirability cannot be overstressed.
In the case in hand we have no evidence to impugn the authenticity of the date shown on the notice of appeal. It was so made in the prison at Benin City where the appellant was incarcerated and the endorsement concerning the filing was expressed to have been made at the High Court, Ughelli. We do not know how the notice of appeal was sent to Ughelli and, it is not a clear case for the application of the provisions of Order VIII rule 4(2) which we have quoted before. Howbeit, we are satisfied that the appellant executed his notice of appeal and delivered it to a recognised channel within time and we are not prepared to hold that it was “given” outside the prescribed time limit. This point is being decided by us in this case as ‘a matter of fact and the circumstance attending other cases either ex facie or proved may compel a different finding on a similar point.”
In general by Order 2 rule 30 of the Supreme Court Act, 1985-
An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below.”
But in the case of criminal appeals Order 9 rule 3(1) of the Rules expressed provides –
“Subject to the provisions of sub-rule (3) of this Rule, appeals shall be brought by notice (hereinafter called the notice of appeal) to be filed in the Registry of the court below which shall set forth the grounds of appeal and shall state clearly whether the appeal is against some decision of the court below other than conviction or sentence.
A notice of appeal shall be in the form prescribed in the First Schedule to these Rules and shall be signed by the appellant:
Provided that, notwithstanding that the provisions herein have not been strictly complied with, the Court may, in the interest of justice and for good and sufficient cause shown, entertain an appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the court below.
It is obvious that the appellant, having been in prison custody I had done enough in his power to bring this appeal. In the light of the foregoing, I feel inclined to hold that the appeal is competent. I therefore so hold.
The aforesaid notwithstanding, I would for the following reasons, allowed this appeal even if the notice of appeal were found to have been filed out of time. As submitted by learned counsel for the appellant and as already shown in this judgment, the judgment delivered by the High Court is null and void because that court ceased to have jurisdiction to deal with the case after the expiration of the 3 months prescribed by section 258(1) of the 1979 Constitution’s case (supra). In the often cited case of Macfoy v. United African Company Ltd., (1961) 3 All E.R. 1169; (1962) A.C. 152
Lord Denning observed as follows –
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so.”
This observation had been approved and followed by this court in a number of cases. After having some anxious moment on whether if an appeal is filed out of time this court could, despite the incompetence of the appeal, look at the conviction and sentence and pronounce on them; it seems to me established, following the decisions in Akpan John Nda v. The Queen (supra) and Egbo Ojojo v. The State, (supra), that the court will adopt that procedure in exercise of its inherent jurisdiction. Therefore to allow the appellant to be executed on a conviction and sentence that are clearly null and void will amount to crass legalism leading to flagrant miscarriage of justice. In my opinion, if the constitutional point relied upon in this court had been raised in the Court of Appeal, that court would have come to the same conclusion.
Finally, I think it is pertinent to point out that the provisions of subsection (4) of section 258 of the Constitution which has been added to that section by section 6 of the Constitution (Suspension and modification) (Amendment) Decree 1985, (No. 17 of 1985), is not applicable to this case, since the addition came into force on 27th August, 1985. For case of reference the subsection reads:
“4. The decision of a court shall not be set-aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”.
Consequently, this appeal succeeds. The conviction and sentence of death imposed on the appellant by Aghahowa, J., when his jurisdiction to do so had abated, are hereby declared null and void. Accordingly, it is hereby ordered that the appellant shall be re-tried in the Gongola State High Court before another Judge.

IRIKEFE, C.J.N.: The appellant in this case was convicted of culpable homicide punishable with death contrary to section 221(1) of the Penal Code by the High Court of Gongola State sitting at YOLA on 5th April, 1982.
It is indisputable that, at the time of delivery of judgment, there had been a lapse of more than three months between the end of the trial when the matter was adjourned for judgment and the actual delivery of the said judgment. This state of affairs would constitute an infraction of the provisions of section 258 (1) of the Constitution of the Federal Republic of Nigeria (1979). The record is silent on whether the learned trial Judge (Aghahowa. J.) was aware of the requirement that judgment should, in terms with the above section, be delivered not later than three months from the conclusion of evidence and final addresses. This section, however, came up for interpretation before this court in CHIEF lfezue v. Mbadugha 1 S.C. N.L.R. 427 and it was the decision of the majority of the court in the said case that any judgment delivered outside the mandatory period of 3 months became a non-judgment, and accordingly ipso facts null and void. Thus applying our reasoning in IFEZUE to the case in hand, although the facts arose before IFEZUE. the judgment of the trial court became similarly null and void. The appeal against the said judgment to the Court of Appeal was itself-a futile exercise and consequently the position is as if this appellant had not stood his trial.
Other issues emerged in the emerged or argument in this appeal which are, are not directly relevant for its determination. They are fully dealt with in the lead judgment just read by my learned brother. UWAIS, J.S.C. I am in full agreement with the reasoning and conclusions of my learned brother aforesaid. It is also my decision that this appeal be and is hereby allowed. The conviction and sentence are hereby set aside and the appellant should stand his trial anew, and with despatch, before the High Court of Gongola State as originally charged.

OBASEKI, J.S.C: This appeal has not been one without difficulty and complexities. It deals with a High Court decision in a culpable homicide which was delivered on the 5th day of April. 1482. The final addresses of counsel was heard by the learned trial judge. Aghahowa, J. of blessed memory on the 17th day of December, 1481. According to the provisions of section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 at the date of the said judgment which section allows only 3 months period from the date of final addresses to the learned trial judge to deliver his judgment, the judgment should have been delivered on the 17th day of March, 1982. It is therefore clear that on proper calculation, the learned trial judge delivered his judgment 18 days outside the time allowed by the Constitution. The said section 258(1) received judicial interpretation in this Court in the cases of:
Chief Ifezue v. Mbadugha & Anor. (1984) 5 SC. 79;
Paul Odi v. Gbaniyi Osafile & Anor. (1985) 1 NWLR 17. This Court in Ifezue’s case (supra) held
that failure to comply with the provisions of that section nullifies the proceedings and judgment. In other words, the proceedings leading to the judgment and the judgment itself become null and void and of no effect. This decision was confirmed in Paul Odi’s case (supra) when the Court was called upon to overrule Ifezue’s case.
In such circumstances, is there a valid decision and conviction to determine the date when the conviction was entered for the purposes of appeal The judgment being a nullity, the answer must be in the negative. If there is no valid conviction, can the Court of Appeal entertain an appeal against that conviction filed outside the 30 days period prescribed by the Court of Appeal Act 1476 section 25(2)(b) for appealing when calculated from the date of the purported conviction In such circumstances, has the Court of Appeal jurisdiction to entertain any application for extension of time to appeal and jurisdiction to extend time in which to appeal in murder cases having been granted with effect from 15th July, 1982 by the Court of Appeal Amendment Act 1982 No. 7.
It is my opinion that when there is no valid judgment but a void judgment, time does not begin to run against an appellant to terminate his right of appeal. A conviction that is a nullity does not exist in law. Once the nullity of the judgment is brought to the notice of the Court of Appeal in a proceeding, it is entitled to assume jurisdiction to set it aside and order a new trial. The Court of Appeal cannot look at the judgment to correct misdirections of law or fact, or erroneous inferences, conclusions, assessment and appraisal of facts.
Thus, the application for extension of time to appeal was wrongly struck, out. Similarly, the appeal was wrongly struck out. This Court will not allow a conviction of murder and sentence of death based on a judgment which is a nullity to stand. The plea of nullity of the judgment will be entertained at any stage of the proceedings.
The criminal jurisdiction a High Court of a State has is to “hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person”. See section 236(1) Constitution of the federal Republic of Nigeria 1979. The process of hearing and determination is concluded by the delivery of a decision not later than three months after the conclusion of evidence and final addresses. In other words, the jurisdiction to hear and determine terminates 3 months after the conclusion of evidence and final addresses. Since the trial judge has no jurisdiction to deliver his judgment outside the 3 months period that judgment so delivered was delivered by the judge without jurisdiction Coram non judice. It is the duty of the appellate court to entertain a plea as to jurisdiction at any stage, even if the point was not raised in the court below. See Chief Kwame Asante v. Chief Kwame Tawia (1949) WN 40. Privy Council judgments by Olisa Chukwurah 1841-1973 p. 432. See also Vol. 10 Halsbury Law of England 4th Edition paragraph 717 p. 235. In the said case of Chief Kwame Asante v. Chief Kwame Tawia, Lord Simonds delivering the judgment of the Board said at page 41:
When this case reached the West African Court of Appeal it was for the 1st time suggested and made ground of appeal that the trial Court. Court B, was not validly constituted for the hearing of the case in that certain chiefs had sat as judges in that court who were not qualified to sit, and that the proceedings before the court must accordingly be regarded as coram non judice and its judgment as a nullity. On that, the West African Court of Appeal observed that that additional ground of appeal was filed without the necessary leave of the court and that it was too late in the proceedings to raise a point of that nature, which was not raised in any of the three courts below or at the beginning of the hearing of the appeal in that court. Their Lordships of the Board could not assent to that view. If it appeared to an appellate court that an order against which an appeal was brought had been made without jurisdiction, it could never be too late to admit and give effect to the plea that the order was a nullity. (Italics mine).
Similarly, in the instant appeal, the judgment of the trial court against which the appellant has appealed first to the Court of Appeal and now to this Court being a nullity, it is not too late to give effect to the plea that it is a nullity. This sole question of nullity of the judgment of the trial court raised before us has been dealt with in detail by my learned brother, Uwais, JSC, in his judgment which I had the pleasure of reading in advance. For the above reasons and the reasons so ably set out, in the said judgment of my learned brother, Uwais, JSC., delivered a short while ago, I hereby allow the appeal, set aside the decision of the Court of Appeal and the conviction of the appellant and sentence of death passed on him by Aghahowa, J. of the High Court at Yola and remit the case to the High Court of Gongola State, Yola for hearing de novo.

ESO, J.S.C.: I had the advantage of a preview of the judgment which has just been read by my learned brother Uwais J.S.C. I agree that the judgment delivered by the High Court is null, see 258(1) of the constitution and as per our judgment in the Ifezue case. My brother has also relied on the much quoted dictum of Lord Denning M.R. in Macfoy v. U.A.C. (1962) A.C. 152 where he said when an act is void it does not need the court to declare it void.I agree the dictum is applicable in this case but will only caution as I have cautioned before, against the application of that dictum to almost every case of nullity as it is now the practice, lest the application becomes too wide as Lord Denning M.R. himself applied it (rightly though in that case) in a case which dealt with pleadings in the case.
I abide by the order made by my brother Uwais J.S.C.

COKER, J.S.C.: I entirely agree with the judgment just read by my learned brother. Uwais, J.S.C. that this appeal should be allowed and that the conviction and sentence of death imposed by Aghahowa, J., be set aside and further that the case against the appellant be re-tried de NOVO by another Judge of the High Court of Gongola State.
The pertinent facts which have been fully set out in the lead judgment of my learned brother, Uwais, J.S.C. relate only to the constitutional issue; namely the trial Court gave judgment more than three months after it had reserved judgment and closing of addresses of Counsel.
Section 258(1) of the 1979 constitution of the Federal Republic of Nigeria provides that every court established under the constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final address… ”
The above section of the constitution was interpreted by this court in Chief Ifezue v. Mbadugha & Anor. (1984) S.C.N.L.R. 427; (1984) 5 SC.79, It was there held that any decision given in contravention of the three month period is null and void. This decision was approved and followed In Paul Odi & Anor. v. Osafile & Anor. (1985) 1 N.W.L.R. 17
The hearing of this case before Aghohowa J., was concluded on 17th December 1981 after addresses of Counsel and judgment reserved till 8th February 1982.lt was not delivered on that day but further adjourned and finally given on 5th April 1982. Following the above mentioned decisions of this court the purported judgment was a nullity.
However, the accused appealed from the decision which was filed on 19th March 1982. This was more than three months (or ninety days) provided in Section 25 Sub-section 2(b) of the Court of Appeal Act 1976 as amended by Federal Court of Appeal (Amendment) Act 1982. The Court below struck out the application for extension of time to appeal by the accused person on the erroneous view that it had not the jurisdiction to grant the application.
Following application to this Court by Mr. Achikeh on behalf of the accused person, I held the view that the Court below had the power to extend time to appeal following the amendment of section 25(4) of the Court of appeal Act by Section 6 of the Federal Court of Appeal (Amendment) Act 1982, which removed the restriction on the power of that Court to extend time to appeal in the case or a conviction involving the sentence of death.
As to whether the appeal before this court is competent, I agree that the effective date is the date when the accused person handed the Notice of Appeal to the officer authorised by the Prisons where the prisoner was held in custody, by way of analogy, the cases The Queen v. Akpen John Noha, 2 F.S.C. 29 Beropegba Finbide v. The State (1969) 1 All N.L. R. 255 and other cases cited by Uwais, J.S.C. in the lead judgment are apposite.
I agree also that the Court at any stage of the proceedings can make an order setting aside a judgment which is null and void, even though there is no appeal from such decision. This Court has the inherent power to make the order.

KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the lead judgment of my learned brother Uwais J.S.C. in this appeal, and I agree with his conclusions that the appeal be allowed, and the appellant sent for trial in the High Court of Gongola State. I only wish to make my own contributions to this novel point of law which is though short, is as intricate as it is novel.
The point of law involved in the grounds of appeal filed in this Court is whether where the judgment appealed against is a nullity, and the notice of appeal filed is out of time, the Court of Appeal was not wrong in law to strike out the appeal as being out of time, rather than declare the judgment appealed against as a nullity
The facts of the case are that appellant was tried and convicted in the High Court, Yola on the 5th April, 1982. The judgment convicting and sentencing appellant to death was delivered more than three months after the conclusion of evidence of witnesses and final addresses of counsel in the trial. This is clearly in contravention of section 258(1) of the Constitution 1979 and accordingly a nullity. Appellant appealed to the Court of Appeal by notice, of appeal dated 19th March, 1983. Appellant was at the time of his conviction entitled to appeal in accordance with section 25 (2) (b) (4) of the Court of Appeal Act 1976 which provides as follows-
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are – (b) In an appeal in a criminal cause or matter thirty days from the date of the decision appealed against.
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section except in the case or a conviction involving the sentence of death.
Thus appellant was entitled to appeal within 30 days of his conviction, and the Court of Appeal had no power to extend such time in the event of appellant failing to appeal within time. There is no doubt that appellant was very much out of time at the time he gave notice to appeal.
It seems that Counsel for the appellant in the Court below was quite aware of this defect in the application before the Court, for extension of time to appeal, and was indeed aware of the amendment to the law, but contended with diffidence and then withdrew the submission that appellant was entitled to take advantage of the amendment to the law.
It is unfortunate that appellant’s counsel withdrew his submission that in view of S.1 of the Federal Court of Appeal (Amendment) Decree No. 59 of 1979 and the Federal Court of, Appeal (Amendment) Act, 1982, S.6 thereof section 25 (4) of the Court of Appeal Act enabled the Court of Appeal to extend time to appeal in cases of culpable homicide punishable with death. The Court of Appeal in a very short ruling felt unable to extend the time to appeal because the last mentioned amendment to the law which enabled the court to do so came into force on the 15th July,1982, after the right of appeal had expired. The Appeal was accordingly struck out.
It is the ruling striking out the appeal that is the subject-matter of the appeal before this Court. Counsel has filed two grounds of appeal which are as follows-
ADDITIONAL GROUNDS OF APPEAL
GROUND 1
The learned Justices of the Court of Appeal erred in law when they struck out the appeal of the Appellant and in effect upheld a void judgment of the trial court.
Particulars of the Error
The learned Justices of the Court of Appeal struck out the appellant’s appeal without first considering the legal effect of the breach by the learned trial judge of the provision of the S.258(1) of the Constitution of the Federal Republic of Nigeria which made it imperative for the trial court to deliver its decision in writing not later than 3 months after the -conclusion of evidence and final addresses.
GROUND 2
The learned Justices of the Court of Appeal erred in law when they failed to consider section 25(2) (b) and (4) of the Court of Appeal Act 1976 subject to the provisions of section 258(1) of the Constitution of the Federal Republic of Nigeria. Particulars
The learned Justices of the Court of Appeal failed to consider that time could not run against the appellant and that they could not he bound by section 25(4) of the Court of Appeal Act in this case where the judgment before them was null and void and of no effect, and that they had a duty to uphold the Constitution, the provisions of S.25(2) (b) and (4) of the Act notwithstanding.
I shall start with ground 2, which, as formulated ought to be considered together with ground one. However, the procedural point which was not argued but was implicit in the decision of the Court of Appeal is whether the appellants were shut out from the benefit of the amendments to S.25 of the Court of Appeal Act 1976, especially S.6 of the Federal Court of Appeal (Amendment) Act 1982.
Section 25(2) (b) (4) as amended by section 6 of the Federal Court of Appeal (Amendment) Act No.7 of 1982 provides as follows-
“2(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(b) in an appeal in a criminal cause or matter ninety days from
the date of the decision appealed against.
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.”
The amendment came into force on the 15th July, 1982. Before the amendments, the period within which to appeal under S.25(2) (b) of the Court of Appeal Act 1976 which has been reproduced in this judgment, was 30 days, and the Court of Appeal in Section 25 (4) in the Court of Appeal Act, had no power to extend time within which to appeal where there was a conviction involving the death penalty. This was the position at the time appellant was convicted on the 5th April, 1982.The right of appeal was therefore lost 30 days thereafter and could not be extended before the 15th July 1982. It is for this reason that the Court of Appeal came to the conclusion that they could not extend the time within which to appeal. The application was accordingly struck out on the ground that the appeal was incompetent. – See Queen v. Nda (1957) 2 FSC 29. See also Moore v. Tayce 2 WACA 43; Oranye v. Jibowo 13 WACA 41 Forfie v. Seifa (1958) A.C.59.
There is no doubt that the amendment to S.25(4) has reversed the situation. The number of days within which to appeal has been increased from 30 to 90 days, and there is now provision for extension of time within which to appeal even in cases of murder. An application for extension of time to appeal is normally made after the expiration of the period within which to appeal. The question in this case is whether the right of appeal having not been exercised within the 30 days prescribed was lost for ever, or that the applicant was entitled to exercise the right on the coming into force of the amendment. The Court of Appeal appears to have taken the view that the exercise of the right of appeal was lost. This was the view adopted by this Court in Peba v. State (1980) 8-11 S.C.76, where Uwais J.S.C. decided before the amendment of 1982 said.
“… it is to be observed that section 25 subsection (2) (b) of the Federal Court of Appeal Act No.43 of 1976 has since been amended by the Federal Court of Appeal (Amendment) Act, No.59 of 1979, which enlarged the time for filing notice of Appeal in criminal cases from 30 to 90 days….. The enlargement of time notwithstanding, the fetter under section 25 subsection (4) of the 1976 Act, which inhibits the Federal Court of Appeal to extend the time prescribed for appeal in the case of a conviction that involves a sentence of death, remains.
Peba v. The State (Supra) is not now an authority in respect of applicants in the Court of Appeal for extension of time in convictions for murder.
The question whether appellant could take advantage of the amendment which related -to procedure was considered and rejected. It is well settled that there is no presumption that a change in procedure is prospective only and not also retrospective. There are circumstances where it could operate retrospectively even if not so expressly stated. – See Welby v. Parker (1916) 2 Ch.1. The question is whether a right which, was lost could be revived by the provision of an amending legislation In my views the answer is yes, and this is the position in this case, and the Court of Appeal was in error that it had no jurisdiction to extend the time.
– See Boodle v. Davies (1853) 8 Ex. 351. In Boodle v. Davies section 128 of the Common Law Procedure Act 1852 enabled issue of execution of judgment within six years without revival of the judgment. It was held, this applied to a judgment signed more than one year before the Act was passed, and could not have been put in force under the previous state of the law, This is the position in this case.
I now turn to ground 1 of the grounds of appeal. It is now well established that any judgment which contravenes the provisions of S.258(1) of the Constitution 1979 is void and a nullity – See Ifezue v. Mbadugha & Anor. (1984) 5 S.C. 79.
Counsel for the appellant has submitted that striking out the appeal of the appellant, is tantamount to upholding the void judgment of the trial Court. It is important to have recourse to the application before the Court and what the Court of Appeal said. The application before the Court of Appeal was for the extension of time to appeal out of time. Since the application for extension of time was made out of time, the Court without adverting to the issue of nullity of the judgment or the amendment struck out the application, and with it the purported appeal – See Etim v. The State (1982) 10 S.C. 20. It is conceded that the striking out of the appeal raises the implication that there was an appeal against a valid judgment before the Court. There is nothing on the record of proceedings to show that either Counsel for the appellant, or the respondent and indeed the Court of Appeal adverted to the fact that the judgment appealed against contravened S. 258(1) of the Constitution and was therefore a nullity. They were all concerned with the question of time within which to appeal. Even on this ground, if their assumption was accepted, they were in error to have refused the application for extension of time in view of S.25(4) of the Court of Appeal Act 1976 as amended.
The issue of the judgment of the High Court being in contravention of Section 258(1) of the Constitution 1979 and therefore a nullity was raised for the first time in this Court. It is not only a point of fundamental constitutional importance; it is a point of law which goes to the jurisdiction and competence of the Court of Appeal.
Mr. Achikeh, Counsel for the appellant contended both in his brief and in argument before us that the judgment appealed against being a nullity, the Court should have so declared rather than strike out the appeal. He argued that there was no appeal before the Court which in the circumstance could be struck out. Counsel relied on Ifezue v. Mbadugha & Anor. (supra), and three other decisions of the Court of Appeal. The point of law is well taken.
It is well settled that where an act is void and a nullity in law it is stricto sensu unnecessary for the person concerned by the act, because no legal effect results from such an act, to apply to have them set aside. Where the issue raised before a Court, is one of nullity, such court ex debito justitiae in its inherent jurisdiction so declare- See Anlaby v. Praetorius (1888) 20 QBD 764; Craig v. Kansen (1943) 1 All ER. 108; Forfie v. Seifa (1958) AC.59 Lazard Brothers & Company v. Midland Bank Ltd. (1933) AC.289.
This Court has similarly declared in Animashawun v. Osuma (1972) 4 S.C. 200 at p. 212 where it was said,
“In the first place, when a party believes or has reason to believe that a transaction liable to affect his rights is null and void, he is under no obligation to ask for a declaration that the transaction is null and void. Moreover,we observe with respect that a void transaction cannot be set aside because being void ab initio there could be nothing set aside.”
This view was adopted and applied in Akpene v. Barclays Bank (1977) 1 S.C.47 and N.H.D.S. v. Mumuni (1977) 2 SC. 52. These cases cited and relied upon the dictum of Denning LJ. in Macfoy v. United African Company Ltd. (1961) 3 All E.R. at p. 1172.
The effect of making a declaration on a void transaction is the unequivocal assertion that the matter so referred to was never in existence. See Peenok Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1. In Tika Tore v. Abina (1973) 4 S.C. 63, Coker JSC went further to say that it is indeed not right to ask for the setting aside of a transaction which is claimed to be void. I agree with this view. I think it is only necessary in the exercise of the inherent jurisdiction of the Court to do justice between the parties in the matter before it to make such a declaration. It is in my opinion on these principle that a court declares void marriages merely to be so. That is that the marriage being void ab initio, never existed in law. So it is with all void transactions. There is nothing to set aside.
Counsel for the appellant has urged us to make the declaration that the judgment of the trial court was void, and accordingly the proceedings in the Court of Appeal which impliedly recognised its validity was also void. It was pointed out correctly that the effect of the proceedings in the Court of Appeal is that the judgment of the trial judge which is a nullity which convicted appellant for culpable homicide punishable with death stands, and appellant liable to be executed, on the strength of a void judgment.
There is no doubt that there was a defect in the competence of the Court of Appeal to exercise jurisdiction in respect of the appeal before it since the judgment of the High Court was given without jurisdiction. – See Madukolu & Ors. v. Nkemdilim & Ors. (1962) All NLR. 587. Consequently it had no jurisdiction infact to deal with the application before it for extension of time to appeal, there being no appeal before it. The Court of Appeal was therefore wrong to have exercised jurisdiction over a non-existing judgment.
It is the duty of this Court suo motu or where it is brought to its notice, to declare as a nullity the judgment on appeal before it made from want of jurisdiction and in contravention of the Constitutional or other statutory requirement. The appeal before us is one such case. The judgment having been delivered more than three months from ‘the delivery of final addresses ‘is a contravention of S.258(1) and void. Since the trial of the appellant in the High Court was in all other respects regular, and the evidence as a whole discloses a substantial case against the appellant, I do not consider it oppressive to put appellant on trial a second time. See Abodundu v. Queen (1959) 4 FSC.70. Otherwise it will offend our sense of justice to allow appellant to go scot free merely because of the contravention of the Constitution relating to the period prescribed for the delivery of judgment. It is for this reason that the amendment to Section 258(1) of the Constitution 1979, by S.6 of the Constitution (Suspension and Modification) (Amendment) Decree No.17 of 1985 which renders judgments delivered in contravention of S.258(1) a nullity only where such contravention results in a miscarriage of justice, which is not applicable to this case is most welcome. If the amendment had applied to this case there would not have been a miscarriage of justice and the conviction would have been valid. This will obviate the necessity of a retrial and save valuable time and expense on the exercise.
In the circumstances this appeal succeeds. The conviction and sentence of death imposed on the appellant by the Gongola High Court, at Yola on the 5th April, 1982 is hereby declared null and void. Appellant shall accordingly be tried in the High Court of Gongola State before another Judge.

OPUTA, J.S.C.: The Appellant was on the 5th April 1982 convicted of the offence culpable homicide punishable with death under section 221 (b) of the Penal Code. He was sentenced to death by hanging. The final addresses were concluded on the 17/12/81 and the learned trial Judge Aghahowa. J. adjourned the case to 8/2/82 for judgment. This was well within the 3 months period allowed by section 258(1) of the Constitution of the Federal Republic of Nigeria 1979, The judgment was not in fact delivered on the 8/2/82 but on the 5/4/82 about 19 days beyond the mandatory statutory 3 months’ period. This Court in Chief Ifezue v. Mbadugha and Anor. (1984) 5 S.C.79 held that failure by the courts below, being courts established under the Constitution, to deliver their judgments within the period of 19 months required by Section 258(1) vitiates any such judgment and renders it null and void and of no effect whatsoever.
The Appellant appealed to the Court of Appeal, Jos Judicial Division. He was not represented by counsel. The court then on the 20/3/85 referred the case to the Legal Aid Council. Yola for it to provide legal representation for the Appellant. In the meantime, the court adjourned the appeal to 27/3/85, Mrs. Nwankwo. Assistant Director. Legal Aid Council for the Appellant asked for an extension of time within which to appeal pursuant to the Federal Court of Appeal (Amendment) Act 1982. Obviously misled by counsel (to both sides, the Court of Appeal struck out the appeal as incompetent.
The Federal Court of Appeal (Amendment) Act 1982 which empowered the court below to extend lime even in cases involving sentence of death came into effect on 15th July 1982. The Application for extension of time was made by the Appellant in Criminal form 7 dated 26/3/85 The effect of the Federal Court of Appeal (Amendment) Act 1982 was to invest on the Court of Appeal jurisdiction to extend time. That Act came into effect on 15th July 1982. This means that from 15th July 1982 onwards that court had jurisdiction to extend time. Unless there was another enactment removing that jurisdiction, it will be presumed to continue up to and beyond 26/3/85. The Court below was therefore wrong in striking out the appeal as incompetent. If an extension of time was granted as prayed, the appeal of the Appellant would have become properly pending and competent.
In this Court, the Appellant applied and obtained leave of Court to raise a constitutional issue which was not raised in the court below – that is the effect of Section 258(1) of the 1979 Constitution on the judgment of the trial court in the case now on appeal. There is no dispute that according to the law as it stood on 5/4/82 when the judgment of the trial court was delivered, that judgment was a nullity. It was not merely bad but incurably bad. The question now is has this court jurisdiction to declare the Order of the Court of Appeal void being an Order made in respect of a void judgment
Two questions now arise:-
1. How would the Court of Appeal have dealt with this void judgment
2. How will this Court deal with a void judgment sentencing the Appellant to death by hanging
I will deal first with the jurisdiction conferred on this Court by Section 30 of the Supreme Court Act No. 29 of 1960. This Section stipulates:-
“S.30 On hearing of an appeal under this Part, the Supreme Court may exercise any power that could have been exercised by the High court (here the Court of Appeal) or may order the case to be retried by a Court of competent jurisdiction.”
It is to be noted that the present appeal is not an appeal from a court sitting as a court of first, instance. In such a circumstance, sections 26 and 27 of the Supreme Court Act are not applicable. As section 30 of the Supreme Court Act of 1960 refers to the powers of the appellate court from where the appeal lies as to the Supreme Court, it now becomes necessary to look at the powers of the court below in criminal appeals from the High Court sitting as a court of first instance. The relevant section is Section 20 of the Federal Court of Appeal Act No. 43 of 1976. That Section stipulates:-
“S.20(1) The Court of Appeal on any appeal under this Part against conviction or against all order of acquittal, discharge or dismissal, shall allow the appeal if it thinks fit that the verdict should be set aside on the ground that it is unreasonable or cannot he supported having regard to the evidence. or that the judgment of the court below should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case, the court shall, subject to the provisions of subsection 3 of this Section and Section 21, dismiss the appeal.”
The Court below held that the appeal was incompetent. This view has been held by this Court to be erroneous. Be that as it may, the Court below could not and did not allow the appeal. One view is that it is only when the court below is allowing the appeal that it has to take into consideration whether it was unreasonable, or whether there was a wrong decision on any question of law or whether there was any miscarriage of justice. In other words, there ought to be a pending appeal before issues of unreasonableness, errors in law and miscarriage of justice can be looked into.
The other view is whether or not the courts have an inherent jurisdiction (apart from any original or appellate jurisdiction) to set aside an order or a judgment which is a nullity Is the person affected by a judgment or order which is null and void entitled ex debito justiciae to have that judgment or order set aside In Craig v. Kanseen (1943) 1 All E.R. 108 at p.113, it was held that an order which is a nullity is something which the person affected by it, is entitled to have set aside ex dehito justitiae. Because of this, the court that made the order exercising its inherent jurisdiction can set aside its own order and an appeal is not necessary. In a case like that the court is not acting under its original jurisdiction for it becomes functus officio after delivering the judgment or order. It is not exercising any appellate jurisdiction for it “cannot sit on appeal over its own Judgment. In such a case the court acts upon an obligation and the order or judgment is set aside ex debito justitiae.
In Daniell’s Chancery Practice 8th Ed. Vol:1 at p. 708, the learned author wrote:-
“A judgment obtained by some steps not warranted by the rules or capable of being sanctioned is wholly void and can be set aside
…Where the proceedings are wholly void they may be set aside at any time.”
The question may now be asked- Does the expression “at any time” include during an appeal either to the court below or to this Court My answer will be yes. In the case now on appeal, the court below held that there was no appeal before it. Assuming that the court was right in so holding (the fact is that the court below was wrong) could it have nonetheless had jurisdiction to declare the void judgment of Aghahowa, J. void When a judgment is a nullity, then it is null and void ab initio. It is automatically void from the time it was delivered without much ado. It is sometimes convenient to have the court declare it to be so:- Wiseman v. Wiseman (1953-56) P.D. 79 at p.91. In Chief Kofi Forfie v Barima Kwabena Seifah (1958) A.C. 59: (1958) 1 All E.R. 289 at p.290. Mr. L M. D. De Silva delivering the judgment of the Privy Council observed:-
“A Court had inherent power to set aside a judgment which it had delivered without jurisdiction. Lord Greene, M.R., in Craig v. Kanseen (1943) 1 All E.R. 108 at p. 113) after referring to several decisions, had said:-
Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and an appeal from the order is not necessary. ”
Their Lordships were of the same opinion. Assuming the judge had no power on June 29, 1949, to review his judgment of May 10, 1949, he nevertheless had power to declare it a nullity and proceed to give a fresh judgment. (The italics is mine)
Applying the same principle assuming the Court of Appeal had no jurisdiction to hear this appeal for the reason given, it still had jurisdiction to declare the judgment of Aghahowa, J. void. That jurisdiction was inherent. In circumstances like this, the court acts upon an obligation and the order to set aside or declare the judgment of Aghahowa, J. of 5/4/82, delivered contrary to section 258(1) of the 1979 Constitution, null and void will be made ex debito justitiae. The Court of Appeal was therefore in error in not declaring that judgment void and in not selling it aside.
The case is now before us on appeal. The court had earlier on held that the Court of Appeal was wrong in holding that it had no power to extend the time within which the Appellant could properly appeal against the void judgment of Aghahowa, J. Now that the judgment is before us, I hold the view that this Court also has inherent jurisdiction to set aside that judgment of the learned trial Judge, which was completely void ab initio, as null and void.
In the final result and for the reasons given above and also the reasons in the lead judgment of my learned brother Uwais, J.S.C., with which I hereby concur, this appeal is allowed, the judgment of the trial judge is set aside and it is hereby ordered that the Appellant be properly tried by a competent High Court in Gongola State.
Appeal Allowed.
Conviction and Sentence of death set aside.
Re-trial Ordered before
Another Judge.