OBA J.A. AWOLOLA, THE EDEDA OF EDA-ONIYO EKITI VS THE GOVERNOR OF EKITI STATE & 2 ORS
(2018) LCN/4553(SC)
In the Supreme Court of Nigeria
Friday, December 14, 2018
Case Number: SC. 194/2008
RATIO
WHETHER A JUDGMENT OF THE COURT OF APPEAL IS A NULLITY WHERE A JUSTICE WHO WAS NOT PART OF THE PANEL THAT HEARD THE APPEAL, WROTE AND DELIVERED JUDGMENT
In the case of Ubwa vs Tiv Area Traditional Council, (supra) the appeal was heard by Akpabio, Umoren and Chukwuma-Eneh. JJCA on 18lh November, 1999. However, on the 14th February, 2000, Akpabio JCA read the lead judgment which was concurred by Umoren and Mangaji JJCA. Mangaji JCA who did not take part in the hearing of the appeal, wrote and delivered a concurring judgment. The learned Justices of this court considered Section 247(1), Section 294(2) and (4) of the 1999 Constitution and had no difficulty in declaring the judgment a nullity and ordered the matter to be heard de novo. In the case of Sokoto State Government vs Kamdex (Nig) Ltd (supra) three Justices of the Court of Appeal, Ogebe, Aderemi and Chukwuma Eneh JJCA heard an appeal on 5th November, 2003. Galadima who had not taken part in the hearing of the appeal wrote and delivered a concurring judgment instead of Ogebe JCA. On appeal to the Supreme Court, it was held that the judgment was not a complete judgment of the Court of Appeal because one of the Justices who had heard the appeal did not reduce his judgment or opinion in waiting capable of being delivered on the day fixed for the delivery of the judgment as required by Section 294(2) of the 1999 Constitution. It was thus concluded that the judgment of Galadima JCA rendered the whole judgment of the Court of Appeal a nullity. The facts of the cases of Ubwa vs Tiv Area Traditional Council (supra) and Sokoto State Government vs Kamdex (Nig) Ltd (supra) are on all fours with the facts in the instant case. It will appear that when these cases were heard, the attention of the learned Justices of this court was not drawn to an earlier decision in Shuaibu vs N.A.B Ltd (1998) 5 NWLR (Pt. 551) 582; (1998) 4 SCNJ 109. The facts of Shuaibu vs N AB Ltd (supra) are on all fours with the instant case. I will recount them in brief. On 21st February, 1991, an appeal was argued before Ndoma-Egba, Mukhtar and Okezie JJCA and judgment Was reserved for 10th April 1991. On 10th April 1991, the same Justices sat, but they read the judgment of Ndoma-Egba, Adio and Okezie JJCA. The record showed that Adio, JCA who was not in the panel that heard the appeal delivered a judgment of the court. Justice Mukhtar JCA who was on the panel that heard the appeal did not deliver any judgment. Wali JSC who delivered the lead judgment, concurred by Ogundare, Ogwuegbu, Mohammed and Onu JJSC, held at page 595 that the judgment of the Court of Appeal was not a nullity. My lords referred to Section 258 (1) (2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria and held: – “Sub-Section (3) supra clearly provides a solution like the one at hand in this case as it stated that where the decision of the court consists of more than one Judge, the concurring opinion expressed by the majority Justices shall be the binding judgment. The sudden appearance of the name of Adio JCA as delivering a concurring judgment must be without doubt a genuine mistake made in the course of compiling the record. Generally, a court possesses the inherent power to amend its clerical slip in order to avert any misapprehension that may arise therefrom. This court has equally the inherent as well as statutory power under Section 22 of the Supreme Court Act 1960 to correct such a slip made by the courts below. See Asiyimbi vs Adeniyi (1967) 1 ALL NLR 82 and A. G of Oyo State & 2 Ors vs Fairlakes Hotel & Anor (1988) 12 SCNJ (Pt I) 12: (1988) (N0.1) 5 NWLR (Pt. 92) 1. What was recorded as concurring judgment of Adio JCA if excluded, would not affect the validity of the majority judgment of Ndoma-Egba and Okezie JJCA even if it were to be taken that Mukhtar JCA delivered a dissenting decision. See Section 258(3) of the 1999 Constitution (supra) and Section 9 of the Court of Appeal Act, 1976. The prime duty of any court in taking any decision is to do substantial justice. The wheel of justice could no longer be allowed to he dogged with technicalities.” Section 258(1)(2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria, the extant constitution when the case of Shuaibu vs NAB Ltd (supra) was decided is in pari material with Section 294 (1)(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. This section provides as. follows: – ” 294 (1) Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. (2)Each Justices of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justices who delivers a written opinion: Provided that it shall not be necessary for all the Justices who heard a cause or mater to be present when judgment is to be delivered and the opinion of a justice may be pronounced, or read by any other Justice whether or not he was present at the hearing. (3)A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members.” The West African Court of Appeal (WACA) had held that where membership of a court varied during hearing of a case, the proceedings were a nullity. See Nana Tawiah 111 Kwasi Awudzi 3 WACA 52; Akosuah Otwiwa & Anor vs Adjoa Kwaseko 3 WACA 230; Chief Yaw Damoah vs Chief Kofi Taibil & Anor 12 WACA 167, which were cited and relied upon by the learned counsel for the 3rd Respondent. The facts in those cases are distinguishable from the facts of the instant case. The bench variation in those cases occurred at the trial court, where witnesses gave evidence. It was the view of the West African Court of Appeal that it was inappropriate for judges who did not hear some of the witnesses testify and observe their behaviour/demeanour during their testimonies were not competent to participate in the delivery of the judgment. As far as the circumstances of those cases were concerned it was a sound decision. However, in the instant case, the matter was at the Court of Appeal and there was no requirement for testimonies of witnesses. The court was correctly constituted as regard its members when the appeal was heard. Two out of the three Justices that heard the appeal delivered their majority opinion which became the judgment of that court. Was there a complaint of miscarriage of Justice as a result of the participation of Tijani Abdullahi JCA in the delivery of the judgment of the court? I do not think there was any complaint of miscarriage of justice. In Shuaibu vs NAB Ltd (supra) this court said: – ”Section 258 of the Constitution provides: – ‘A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members’ of the three justices that heard the appeal on Friday 20,1991 two that is Ndoma-Egba and Okezie JJCA ruled in favour of allowing the appeal What it means is that even if Mukhtar JCA had dissented, her dissent would have had no effect on the judgment that the appeal was allowed. Therefore, in my respectful view and having regard to the circumstances, the participation of Adio JCA in the judgment of the court below regrettable as it is, did not vitiate the proceedings of the court below. The position would have been otherwise had Okezie JCA or Ndoma-Egba JCA dissented and Adio JCA had joined either of them to form a majority.” A close perusal of the judgment that was delivered on the 6th March 2006, the subject matter of the appeal herein, it is apparent that Ikongbeh and Muntaka-Coomassie JJCA delivered judgment in appeal no. CA/IL/14/2002, while Tijani Abdullahi JCA delivered what was termed as his contributory judgment in Appeal No. CA/IL/14/2005. Clearly the judgment of Tijani Abudullahi JCA was not delivered in the same appeal as the one in which the majority judgment of Ikongbeh and Muntaka-Coomassie JJCA was delivered. It follows therefore that Ogunwumiju JCA is yet to deliver his judgment. Be that as it may, I entirely agree with my learned brothers that in the circumstances of the case of Shuaibu vs NAB (supra) which is the same situation I find myself in this case, the judgment of the Court of Appeal is not a nullity. The participation of Tijani Abdullahi JCA at the stage of judgment was a mere irregularity which could result in the setting aside the judgment only if there is evidence of miscarriage of justice. Courts are established for the purpose of deciding the rights of disputing parties in order to terminate their disputes once and for all Once a case has been rightly decided, the dispute should not be reopened by resort to legal technicalities. The lower court in its ruling of 31st May 2006 after considering several authorities came to conclusion that its judgment which was delivered on the 6th March 2006 is not a nullity. I agree entirely with that ruling. I also agree that, had this court considered the provisions of Section 294(3) of the 1999 Constitution and the authority in Shuaibu vs NAB (supra), it would have arrived at a different decision in Ubwa vs Tiv Area Traditional Council (supra) and Sokoto State Government vs Kamdex Ltd (supra). I am therefore of the firm view that the judgment of the lower court delivered on the 6th March 2006 is not a nullity. PER PAUL ADAMU GALINJE, JSC
INTERPRETATION OF SECTION 2 (A) OF THE EKITI STATE PUBLIC OFFICERS (PROTECTION) LAW AS REGARDS THE TIME FRAME WITHIN WHICH SUCH AN ACTION MUST BE COMMENCED AND CONDITIONS THAT MUST BE SATISFIED BEFORE THE PROVISION CAN AVAIL A PERSON
Section 2 (a) of the Ekiti State Public Officers (Protection) Law provides as follows: “2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, (he following provisions shall have effect: – (a) the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the ceasing thereof.
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.” The proviso to Section 2 (a) of the Public Officers (Protection) Law does not apply to this case, However the provision of the law is very clear, and that is, where any action, prosecution or proceeding is commenced against any person, for any act done in pursuance or execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act neglect or default complained of or in the case of a continuance of damage or injury, within three months next after the ceasing thereof. The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the stipulated period by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Ibrahim vs JSC (1998) 14 NWLR (Pt. 584), at 32; Michael Obiefuna vs Alexander Okoye (1961) 1 ALL NLR 357; Fred Egbe vs Adefarasin (NO, 2) (1985) 1 NWLR (Pt 3) 549; Fadare vs A.G Oyo State (1982) NSCC 643. For Section 2 (a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied: – (1) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law. (2)The act done by the person is in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. See Ekeogu vs Aliri (1990) 1 NWLR (Pt 126) 345. The two conditions must be satisfied conjunctively before the protection under Section 2 (a) of Public Officers (Protection) Law will be invoked. PER PAUL ADAMU GALINJE, JSC
EFFECT OF AN UNAPPEALED FINDING OF A COURT
The law is settled that a finding of a court against which there is no appeal is treated as admitted. See Odedo vs INEC (2008) 17 NWLR (Pt 1117) 554 at 630 paras B – C; Ilona vs Idakwo (2003) 11 NWLR (Pt 830) 53 at 83 paras E – F; Adejumo vs Ayantegbe (1989) 3 NWLR (Pt 110) 417; Okuoja vs Ishola (1982) 7 SC 314; Awote vs Owodunmi (1986) 5 NWLR (Pt. 45) 941; Atoyebi vs Gov., Oyo State (1994) 5 NWLR Z(Pt. 344) 290. PER PAUL ADAMU GALINJE, JSC
JUSTICES:
OLABODE RHODES-VIVOUR
MARY UKAEGO PETER-ODILI
EJEMBI EKO
PAUL ADAMU GALINJE
SIDI DAUDA BAGE
APPELLANTS
OBA J. A. AWOLOLA, THE EDEDA OF EDA-ONI YO EKITI(For himself and on behalf of the Entire People of Eda-Oniyo)
RESPONDENTS
1. THE GOVERNOR OF EKITI STATE2. THE ATTORNEY-GENERAL, EKITI STATE3. THE CHAIRMAN, ILEJEMEJE LOCAL GOVERNMENT, EKITI STATE
(DELIVERED BY PAUL ADAMU GALINJE, JSC)
On the 1st of October, 1996, the Federal Military Government of Nigeria, by the State’s Creation Transitional Provisions Decree NO. 36 of 1999 created among others, Ekiti State with Ilejemeje Local Government Area as one of the constituent Local Governments. The headquarter of this Local Government was located at Eda-Oniyo, the town where the Appellant herein is the paramount traditional ruler. Soon after the creation of the Local Government Area, the machinery of the Local Government was established in Eda-Oniyo. The 3rd Respondent herein and the staff of the Local Government moved to Eda-Oniyo and set up all the required administrative machinery.
Three months later, there was a radio announcement in which the Ekiti State Government notified the general public that the Ilejemeje Local Government Headquarter had been relocated from Eda-Oniyo to Iye-Ekiti. Following this announcement, the 3rd Respondent immediately moved the staff and the entire machinery’ of the Local Government from Eda-Oniyo to Iye-Ekiti and started operating from there. In protest, the Appellant contacted the office of the head of state which informed him that the Federal Military Government had not ordered the relocation of the Local Government headquarter from Eda-Oniyo to Iye-Ekiti. Subsequent action of the Federal Military Government and all official correspondences with Ilejemeje Local Government confirmed Eda-Oniyo as the headquarter of the Local Government. Protests by the Appellant and his people and their call to return the Local Government headquarter to Eda-Oniyo fell on the deaf ears of Ekiti State Government and its functionaries. In order, to press home their demand, the Appellant as the paramount traditional ruler of Eda-Oniyo, by a writ of summons filed on the 2nd of August, 1999 and the statement of claim dated 17th August, 1999, claimed against the Respondents at the Ekiti State High Court, the following reliefs: –
1. A declaration that by virtue of the State Creation and Transition Decree NO. 36, Volume 83 of 1996, Local Government (Basic Constitutional and Transitional Provision) Decree of 1997 and 1998, Eda-Oniyo is still the headquarters of Ilejemeje Local Government of Ekiti State.
2.An order of court declaring illegal, irregular unconstitutional and therefore null and void any act done or purported to have been done recognizing Iye-Ekiti as the headquarter of Ilejemeje Local Government of Ekiti State.
3.An order of court restraining the defendants jointly and severally by themselves, their agents and privies from recognizing Iye-Ekiti as the headquarters of Ilejemeje Local Government.
4.A perpetual Injunction restraining the defendants jointly and severally by themselves, their agents and privies from carrying out the administrative activities of the Ilejemeje local Government in any other town apart from the Local Government Headquarters, which is Eda-Oniyo, Ekiti.
The Respondents, who were defendants at the trial court filed a joint statement of defence. Issues having been joined, the suit was heard. After taking witnesses and addresses of counsel, Aladejana J. in a reserved and considered judgment delivered on the 10th of December, 2001, granted reliefs-1, 2 and 3, but refused to grant relief 4. The Respondents herein were not satisfied with the judgment. Being aggrieved, the 3rd Respondent filed an appeal on 18th December, 2001, while the 1st and 2nd Respondents filed their appeal on the 8th March, 2002. The issues in contention at the Court of Appeal were: –
1. That the trial court had no jurisdiction to hear the matter on grounds that: –
a.It was statute barred,
b.The proper defendants were not before the court
c.Given the nature of the complaint, the Appellant had no reasonable cause of action.
d.The actions or inactions of the then Federal Military Government could not form the subject matter of litigation.
In addition, the 3rd Respondent complained: –
(a)That the Appellant had no locus standi to commence the action.
(b)That no pre-action notice had been served on the Local Government before instituting the action.
(e) That the Respondents had been denied their right of fair hearing.
A panel of the Learned Justices of the Court of Appeal, made up of Muntaka-Coomassie, JCA (as he then was) who presided, A. J. Ikongbeh JCA and H. M Ogunwumiju JCA heard the appeal and reserved judgment. The lead judgment was assigned to Ikongbeh JCA. On the 6th of March, 2006 a different panel made up of M. S Muntaka-Coomassie, A. J Ikongbeh and Tijani Abdullahi J JCA delivered the judgment. Tijani Abdullahi JCA who was not in the panel that heard the appeal, wrote and delivered a contributory judgment to the lead judgment of Ikongbeh JCA.
In the judgment, their lordships held that the action had become statute barred as at the time it was instituted. On this ground alone, the suit of the Appellant herein was dismissed. After having delivered the judgment the learned Justices of the Court of Appeal discovered that Tijani Abdullahi JCA contributed to the judgment in error as he did not take part in the hearing of the appeal. Parties were summoned to appear and address the court on whether the appeal should be heard de novo or same should be rolled back and the judgment delivered by the original party. After the address by learned counsel on both sides, the court delivered its ruling on the 31st of May 2006 in which it upheld the sanctity of its judgment of 6th March 2006.
The appeal before this court is against the judgment of the Court of Appeal delivered on the 6th March 2006 and the ruling of 31st May 2006. The Appellant’s amended notice of appeal filed on the 26th July, 2018 contains five grounds of appeal.
Parties filed and exchanged briefs of argument. Mr. Samuel Ogala, learned counsel for the Appellant formulated two issues for determination of this appeal as follows: –
1. Was the decision of the Court of Appeal delivered on 6th March 2006 by a panel differently constituted from that which had heard the case a valid judgment within the meaning of the provisions of Section 294(2) of the constitution of the Federal Republic of Nigeria, 1999?
2. Was the Court of Appeal right in holding that the Public Officers Protection Act was applicable to this case and that the action of the plaintiff/appellant was statute barred?
Mr. Gboyega Oyewole, learned counsel for the 1st and 2nd Respondents adopted the two issues formulated by the Appellant, while Mr. Taiwo Kupolati who seems to be crying more than the Appellant, formulated three issues for determination of this appeal. I set the three issues hereunder as follows: –
1. Whether the decision of the Court of Appeal dated 6th March 2006 which was affected by bench variation is necessarily a nullity which should be set aside or an irregularity for which prejudice and miscarriage of justice ought to be established or shown before it could be set aside. Does the decision of the Court of Appeal dated 27 May not accord with substantial justice?
2.Whether the decision of Ubwa vs Tiv Area Traditional Council and Sokoto State Government vs Kamdex (Nig) Ltd heavily relied on by the Appellant should be overruled or departed from having been reached per incuriam and on account of their likelihood for perpetuating injustice.
3.Whether the Appellant’s action was statute barred under Section 2(a) of the Public Officers Protection Law, Cap 103 applicable to Ekiti State.
In arguing the 1st issue for determination of this appeal, learned counsel for the Appellant made reference to the decisions of this court in Ubwa vs Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427 and Sokoto State Government vs Kundex Nig. Ltd (2007) 7 NWLR (Pt. 1034) 466 and submitted that the judgment delivered by the Court of Appeal, Ilorin Division consisting of Muntaka-Coomassie, Ikongbeh and Abdullahi JJCA on 6th March 2006 was wrongful illegal, unconstitutional and as such a nullity and should be set aside. In the same view, learned counsel urged this court to set aside the ruling of the Court of Appeal delivered on 31st May 2006 as same is misconceived, illegal and unconstitutional and to remit the appeal to a panel of any Court of Appeal Justices who have not in any way been concerned with or partaker in any part of the appeal proceedings in this matter.
Learned counsel for the 1st and 2nd Respondents, whose brief is so badly written, as the characters of the letters and the spacing are not in conformity with the rules of this court submitted that even though the Court of Appeal complied with Section 226 of the 1979 constitution, because three Justices of that court sat on the 1st of February, 2006 to hear the appeal, Section 252 (2) of the said constitution was breached because not all the Justices that heard the appeal expressed and delivered their opinion in waiting as required by the constitution. In a further argument, learned counsel submitted that the case of Shuaibu vs Nigeria Arab Bank (1995) 5 NWLR (Pt. 551) 482 relied upon by the Court of Appeal are not on all fours with the facts of this case. It is learned counsel’s further argument that the mistake/misadventure committed by the Court of Appeal in the instant case should not be visited on any of the parties. Finally learned counsel urged this court to set aside the judgment of the Court of Appeal for being a nullity and send the case back to the lower court for hearing de novo by another panel of that court. By this submission, learned counsel for the 1s1 and 2nd Respondents has clearly conceded to the appeal on this issue.
The only opposition to this appeal on the 1st issue is from the learned counsel for the 3rd Respondent whose contention in the main, is inviting this court to overrule or depart from its decisions in Ubwa vs Tiv Area Traditional Council (2004) 11 NWLR (Pt 884) 427 and Sokoto State Government vs Kamdex (Nig) Limited (2007) 7 NWLR (Pt 1034) 466, in order to legitimize the decision of the lower court in this matter. Learned counsel found strength in his argument on the authority of Adeigbe vs Kusimo (1965) NMLR 284, where this court held: –
“We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make it unsatisfactory, and it may have to be set aside for this reason, but whether they do or not depends on the particular circumstances of the case.”
In the case of Ubwa vs Tiv Area Traditional Council, (supra) the appeal was heard by Akpabio, Umoren and Chukwuma-Eneh. JJCA on 18lh November, 1999. However, on the 14th February, 2000, Akpabio JCA read the lead judgment which was concurred by Umoren and Mangaji JJCA. Mangaji JCA who did not take part in the hearing of the appeal, wrote and delivered a concurring judgment. The learned Justices of this court considered Section 247(1), Section 294(2) and (4) of the 1999 Constitution and had no difficulty in declaring the judgment a nullity and ordered the matter to be heard de novo.
In the case of Sokoto State Government vs Kamdex (Nig) Ltd (supra) three Justices of the Court of Appeal, Ogebe, Aderemi and Chukwuma Eneh JJCA heard an appeal on 5th November, 2003. Galadima who had not taken part in the hearing of the appeal wrote and delivered a concurring judgment instead of Ogebe JCA. On appeal to the Supreme Court, it was held that the judgment was not a complete judgment of the Court of Appeal because one of the Justices who had heard the appeal did not reduce his judgment or opinion in waiting capable of being delivered on the day fixed for the delivery of the judgment as required by Section 294(2) of the 1999 Constitution.
It was thus concluded that the judgment of Galadima JCA rendered the whole judgment of the Court of Appeal a nullity. The facts of the cases of Ubwa vs Tiv Area Traditional Council (supra) and Sokoto State Government vs Kamdex (Nig) Ltd (supra) are on all fours with the facts in the instant case. It will appear that when these cases were heard, the attention of the learned Justices of this court was not drawn to an earlier decision in Shuaibu vs N.A.B Ltd (1998) 5 NWLR (Pt. 551) 582; (1998) 4 SCNJ 109.
The facts of Shuaibu vs N AB Ltd (supra) are on all fours with the instant case. I will recount them in brief. On 21st February, 1991, an appeal was argued before Ndoma-Egba, Mukhtar and Okezie JJCA and judgment Was reserved for 10th April 1991. On 10th April 1991, the same Justices sat, but they read the judgment of Ndoma-Egba, Adio and Okezie JJCA. The record showed that Adio, JCA who was not in the panel that heard the appeal delivered a judgment of the court. Justice Mukhtar JCA who was on the panel that heard the appeal did not deliver any judgment. Wali JSC who delivered the lead judgment, concurred by Ogundare, Ogwuegbu, Mohammed and Onu JJSC, held at page 595 that the judgment of the Court of Appeal was not a nullity. My lords referred to Section 258 (1) (2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria and held: –
“Sub-Section (3) supra clearly provides a solution like the one at hand in this case as it stated that where the decision of the court consists of more than one Judge, the concurring opinion expressed by the majority Justices shall be the binding judgment. The sudden appearance of the name of Adio JCA as delivering a concurring judgment must be without doubt a genuine mistake made in the course of compiling the record. Generally, a court possesses the inherent power to amend its clerical slip in order to avert any misapprehension that may arise therefrom. This court has equally the inherent as well as statutory power under Section 22 of the Supreme Court Act 1960 to correct such a slip made by the courts below. See Asiyimbi vs Adeniyi (1967) 1 ALL NLR 82 and A. G of Oyo State & 2 Ors vs Fairlakes Hotel & Anor (1988) 12 SCNJ (Pt I) 12: (1988) (N0.1) 5 NWLR (Pt. 92) 1. What was recorded as concurring judgment of Adio JCA if excluded, would not affect the validity of the majority judgment of Ndoma-Egba and Okezie JJCA even if it were to be taken that Mukhtar JCA delivered a dissenting decision. See Section 258(3) of the 1999 Constitution (supra) and Section 9 of the Court of Appeal Act, 1976.
The prime duty of any court in taking any decision is to do substantial justice. The wheel of justice could no longer be allowed to he dogged with technicalities.”
Section 258(1)(2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria, the extant constitution when the case of Shuaibu vs NAB Ltd (supra) was decided is in pari material with Section 294 (1)(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. This section provides as. follows: –
” 294 (1) Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(2)Each Justices of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justices who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or mater to be present when judgment is to be delivered and the opinion of a justice may be pronounced, or read by any other Justice whether or not he was present at the hearing.
(3)A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”
The West African Court of Appeal (WACA) had held that where membership of a court varied during hearing of a case, the proceedings were a nullity. See Nana Tawiah 111 Kwasi Awudzi 3 WACA 52; Akosuah Otwiwa & Anor vs Adjoa Kwaseko 3 WACA 230; Chief Yaw Damoah vs Chief Kofi Taibil & Anor 12 WACA 167, which were cited and relied upon by the learned counsel for the 3rd Respondent. The facts in those cases are distinguishable from the facts of the instant case. The bench variation in those cases occurred at the trial court, where witnesses gave evidence. It was the view of the West African Court of Appeal that it was inappropriate for judges who did not hear some of the witnesses testify and observe their behaviour/demeanour during their testimonies were not competent to participate in the delivery of the judgment. As far as the circumstances of those cases were concerned it was a sound
decision. However, in the instant case, the matter was at the Court of Appeal and there was no requirement for testimonies of witnesses. The court was correctly constituted as regard its members when the appeal was heard. Two out of the three Justices that heard the appeal delivered their majority opinion which became the judgment of that court. Was there a complaint of miscarriage of Justice as a result of the participation of Tijani Abdullahi JCA in the delivery of the judgment of the court? I do not think there was any complaint of miscarriage of justice. In Shuaibu vs NAB Ltd (supra) this court said: –
”Section 258 of the Constitution provides: –
‘A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members’ of the three justices that heard the appeal on Friday 20,1991 two that is Ndoma-Egba and Okezie JJCA ruled in favour of allowing the appeal What it means is that even if Mukhtar JCA had dissented, her dissent would have had no effect on the judgment that the appeal was allowed. Therefore, in my respectful view and having regard to the circumstances, the participation of Adio JCA in the judgment of the court below regrettable as it is, did not vitiate the proceedings of the court below. The position would have been otherwise had Okezie JCA or Ndoma-Egba JCA dissented and Adio JCA had joined either of them to form a majority.”
A close perusal of the judgment that was delivered on the 6th March 2006, the subject matter of the appeal herein, it is apparent that Ikongbeh and Muntaka-Coomassie JJCA delivered judgment in appeal no. CA/IL/14/2002, while Tijani Abdullahi JCA delivered what was termed as his contributory judgment in Appeal No. CA/IL/14/2005. Clearly the judgment of Tijani Abudullahi JCA was not delivered in the same appeal as the one in which the majority judgment of Ikongbeh and Muntaka-Coomassie JJCA was delivered. It follows therefore that Ogunwumiju JCA is yet to deliver his judgment.
Be that as it may, I entirely agree with my learned brothers that in the circumstances of the case of Shuaibu vs NAB (supra) which is the same situation I find myself in this case, the judgment of the Court of Appeal is not a nullity. The participation of Tijani Abdullahi JCA at the stage of judgment was a mere irregularity which could result in the setting aside the judgment only if there is evidence of miscarriage of justice. Courts are established for the purpose of deciding the rights of disputing parties in order to terminate their disputes once and for all Once a case has been rightly decided, the dispute should not be reopened by resort to legal technicalities. The lower court in its ruling of 31st May 2006 after considering several authorities came to conclusion that its judgment which was delivered on the 6th March 2006 is not a nullity. I agree entirely with that ruling. I also agree that, had this court considered the provisions of Section 294(3) of the 1999 Constitution and the authority in Shuaibu vs NAB (supra), it would have arrived at a different decision in Ubwa vs Tiv Area Traditional Council (supra) and Sokoto State Government vs Kamdex Ltd (supra). I am therefore of the firm view that the judgment of the lower court delivered on the 6th March 2006 is not a nullity.
This issue is accordingly resolved against the Appellant and in favour of the Respondents.
In arguing the second issue for determination of this appeal, learned counsel for the Appellant submitted that the Public Officers Protection Law of Ondo State as applicable to Ekiti State applies to Public Officers only. According to the learned counsel, the Respondents not being Public Officers within the law are not covered by the provisions of the Public Officers Protection Law. In aid learned counsel cited Governor, Ebonyi State vs Isuama (2004) 6 NWLR (Pt. 870) 511 at 528 – 530; Asogwa vs Chukwu (2003) 4 NWLR (Pt. 811) 540 at 574 – 575; Oniya vs Governor-in-Council (1962) WNLR 89 at 91. In a further argument, learned counsel submitted that the Public Officers Protection Act does not apply to remedies based on constitutional rights, contract, recovery of land and claim for work done.
For the 1st and 2nd Respondents, it is argued that the Respondents are actually public officers as defined under the 1979 and 1999 Constitution, the Interpretation Act and many decided cases. Sections 2(a) of the Public Officers Protection Act, 1990, 18(1) of the Interpretation Act 1990 and Section 277(1) of the 1979 Constitution of Nigeria as well as part 11 of the 5th Schedule to the 1979 Constitution were cited in support of the submission that the Respondents Are Public Officers. In aid the authorities in Ibrahim vs JSC (1989) 14 NWLR (Pt 584) 1, PN Udoh Trading vs Abere (2001) 11 NWLR (Pt 723) 114 at 129 B-C; Eboigbe vs NNPC (1994) 5 NWLR (Pt. 347) 649 at 664 – 665 paragraphs D – B were cited and reliance placed on them.
Finally, on this issue of whether the Respondents Are Public Officers or not, it is argued that the trial court’s verdict that the Respondents are public officers has not been challenged on appeal as such the Appellant is estopped from further arguing on that point.
Learned counsel for the 3rd Respondent associated himself with the learned counsel for the 1st and 2nd Respondents on the issue of whether the Respondents Are Public Officers or not when he submitted that the Appellant having failed to appeal against the decision of the trial court that the Respondents Are Public Officers, can no longer be heard to argue on that point. Learned counsel urged this court to hold that Section 2(a) of the Public Officers Protection Law is available to the Respondents in the circumstances of this case.
In resolving this issue of whether the Respondents Are Public Officers or not, the lower court at page 499 of the record held: –
“Considering all dial I have said I must agree with Appellant and the learned trial Judge that the Appellants Are Public Officers who could benefit from the provisions of the law. They were at the material time engaged in the execution of the constitution and other enactment for the purpose of governing Ekiti State and among others, Ilejemeje Local Government which was in the nature of public duty. To succeed in his action against them, therefore, the respondents was obliged to have commenced the action within the stipulated time limit.”
Section 2 (a) of the Ekiti State Public Officers (Protection) Law provides as follows:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, (he following provisions shall have effect: –
(a) the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the ceasing thereof.
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
The proviso to Section 2 (a) of the Public Officers (Protection) Law does not apply to this case, However the provision of the law is very clear, and that is, where any action, prosecution or proceeding is commenced against any person, for any act done in pursuance or execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act neglect or default complained of or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.
The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the stipulated period by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Ibrahim vs JSC (1998) 14 NWLR (Pt. 584), at 32; Michael Obiefuna vs Alexander Okoye (1961) 1 ALL NLR 357; Fred Egbe vs Adefarasin (NO, 2) (1985) 1 NWLR (Pt 3) 549; Fadare vs A.G Oyo State (1982) NSCC 643.
For Section 2 (a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied: –
(1)It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law.
(2)The act done by the person is in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.
See Ekeogu vs Aliri (1990) 1 NWLR (Pt 126) 345.
The two conditions must be satisfied conjunctively before the protection under Section 2 (a) of Public Officers (Protection) Law will be invoked.
In the passage I have quoted elsewhere in this judgment, the lower court did hold that the Respondents are public officers who could benefit from the provisions of the law.
The Appellant has failed to appeal against that portion, of that judgment. The law is settled that a finding of a court against which there is no appeal is treated as admitted. See Odedo vs INEC (2008) 17 NWLR (Pt 1117) 554 at 630 paras B – C; Ilona vs Idakwo (2003) 11 NWLR (Pt 830) 53 at 83 paras E – F; Adejumo vs Ayantegbe (1989) 3 NWLR (Pt 110) 417; Okuoja vs Ishola (1982) 7 SC 314; Awote vs Owodunmi (1986) 5 NWLR (Pt. 45) 941; Atoyebi vs Gov., Oyo State (1994) 5 NWLR Z(Pt. 344) 290.
Even if there is an appeal against the decision that the Respondents are public officers, there would have been no merit in such appeal. The Black’s law Dictionary, 9th Edition at page 1351 defines Public Office as a position whose occupant has legal authority to exercise a government sovereign power for a fixed period. An officer is defined by the same dictionary at page 1193 as follows: –
“A person who holds an office of trust, authority or command. In public affairs, the term refers especially to a person holding public office under a national, state, or local government and authorized by that government to exercise some specific function.”
Part 11 of the 5th Schedule to the 1979 Constitution as well as Part 11 of the 1999 Constitution, of the Federal Republic of Nigeria have clearly set out a list of Public Officers for the purpose of the Code of Conduct. Governor, Attorney General and Local Government Council Chairman are listed in items 4, 6 and 13 of the 1979 and 1999 Constitution of Nigeria. It follows therefore that the Respondents are public officers within the provisions of the constitution of Nigeria.
Was the act of relocating the Local Government Headquarter from Eda-Oniyo to Iye-Ekiti done in execution of the States Creation Transitional Provisions Decree NO. 36 of 1996 and other laws which created Ilejemeje Local Government Area with its headquarter at Eda-Oniyo. The lower court in its judgment at page 499 of the record stated as follows: –
“They were at the material time engaged in the execution or intended execution of the constitution and other enactments for the purpose of governing Ekiti State and among others, Ilejemeje Local Government which was in the nature of public duty. To succeed against them, the respondents was obliged to have commenced the action within the stipulated time limit”
The headquarter of Ilejemeje was established by a statute, that is Decree NO. 36 of 1996. Its relocation could only be effected through another statute promulgated by the same competent authority. I have flipped through the record of this appeal and I have not found any evidence that Decree NO, 36 of 1996 has been repealed by a subsequent law that has relocated the headquarter of Ilejemeje Local Government from Eda-Oniyo to Iye-Ekiti. By arbitrarily relocating the Local Government Headquarter, the Respondents at the material time were not engaged in the execution or intended execution of the constitution and other enactments for the purpose of governing Ekiti State and Ilejemeje Local Government. On the contrary the Respondents acted in breach of the law that established the Local Government.
Public Officers (Protection) Law is meant to protect public officers who act in good faith as it does not apply to acts done in abuse of office with no semblance of legal justification. Public Officers Protection Law is used as a shield and not as a sword in protecting actors of acts that are done in accordance with the constitution and any other enactments, and it does not apply if it is established that the public officer had abused his position for purpose of acting maliciously. In that case, he has not acted bona fide and within the terms of the statutory or other legal authority. In such a state of facts he has abused his position for the purpose of doing the wrong thing, and the provision of the law will not apply to protect him.
In the instant case, the Respondents knew and had every reason to know that the location of Ilejemeje Local Government Headquarter at Eda-Oniyo was made through a statute and that same could be relocated only by statute. Their act of relocating the headquarter was done mala fide and without legal justification. The two conditions for making available to them the protection of Public Officers (Protection) Law of Ekiti State have not beer, satisfied conjunctively. The suit against the Respondents at the trial court was legitimately instituted and it is my firm view that the Respondents are public officers whose actions are not protected by the Public Officers (Protection) Law of Ekiti State.
This issue is resolved in favour of the Appellant and against the Respondents.
Having resolved the first issue against the Appellant, and the 2nd issue in the Appellant’s favour, this appeal shall be and it is hereby allowed in part. The decision of the lower court where it adjudged that the Public Officers (Protection) Law is available to the Respondents is hereby set aside and quashed.
By virtue of Order 8 rule 12(2) of the Rules of this court. I have the power to draw inferences of fact and give judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require including any order as to cost. I in that behalf, find that the proper order the Court of Appeal would have made was to uphold the decision of the trial court based on the fact that the headquarter of Ilejemeje Local Government Area was a product of statute and that since no law has been validly promulgated that has relocated the headquarter of the Local Government aforesaid, the act of the Respondents had no legal basis. Since the lower court did not do so, I am in a position to uphold the decision of the trial court. To that extent and for the purpose of putting an end to the litigation in this case, it is ordered that the judgment of the trial court in this matter is hereby restored.
The Respondents shall pay to the Appellant the sum of one million naira (N1,000,000.00) as costs of prosecuting this appeal.
EJEMBI EKO, JSC: I had a preview of the judgment just delivered by my learned brother, PAUL ADAMU GALINJE, JSC. It represents my views in this appeal, and I hereby endorse it.
There has been an overwhelming misconception of the fact that Tijani Abdullahi, JCA contributed an opinion to the decision in appeal No. CA/L/M.14/2002 (or CA/L/14/2002) that he never participated in the hearing of in the open Court. This appeal rests on that misconception of the basic fact, of this case. The contribution of Tijani Abdullahi, JCA is at page 508 of the Record. The opinions of Aboyi John ikongbeh, JCA in the appeal No. CA/L/14/2002 delivered on 6th March, 2006 is at pages 492 – 506 of the Record. The contribution of M. S. Muntaka-Coomassie, JCA in the appeal No. CA/IL/14/2002 is at page 507 of the Record.
It is very clear from page 508 of the Record that Tijani Abdullahi, JCA never contributed to nor offered any opinion in, the appeal No. CA/IL/14/2002. The decision at page 508 of the Record is in respect of appeal No. CA/IL/4/2005, and not appeal No. CA/IL/14/2002 (or CA/IL/M. 14/2002). This explanation expels any impression or misconception that Tijani Abdullahi, JCA contributed any opinion in the decision in the appeal CA/IL/14/2002 (CA/IL/M.14/2002) that he in fact never participated in the hearing of. All the hue and cry that because he never participated in the said appeal now melts down too much ado about nothing. In my firm view, therefore, the judgment of Tijani Abdullahi, JCA in the appeal No. CA/IL/4/2005 wherein he concurred in the lead judgment delivered by Aboyi John Ikongbeh, JCA cannot by any imagination vitiate the majority decision delivered in the appeal No. CA/IL/14/2002 (CA/IL/M. 14/2002) – Aboyi John Ikongbeh, JCA pronouncing the lead judgment concurred by M. S. Muntaka-Coomassie, JCA. I think I have dispelled the bogey.
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 v. I.N.E.C & OR. (2015) LP.E.LR – 24566 (SC); PLATEAU STATE GOVERNMENT v. A.G., FEDERATION (2006) 3 N.W.LR. (Pt. 967) 346; EZEREBO v. EHINDERO (2009) 10 N.W.LR. (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 Tijani Abdullahi, JCA offered an opinion in the appeal No. CA/IL/14/2002 (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.
I wish to add a few words on the scope of the Public Officers (Protection) Law, of Ekiti State, Section 2(a) thereof, which is in pari materia with Section 2(a) of the Public Officers (Protection) Act, 1990. Section 2(a) of this limitation statute provides –
2. Where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect –
(a) the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the ceasing thereof.
PROVIDED that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may commence three months after the discharge of such person from prison.
The statute provides in its protection of the Public Officer only “ANY ACT DONE IN PURSUANCE OR EXECUTION OR INTENDED EXECUTION OF ANY LAW OR OF ANY PUBLIC DUTY -. The question that readily comes to mind is whether any public officer has any public duty or authority to break the laws of the realm? No such duty or right inheres in the Public Officer to break the law. As law breaking or insubordination to the letters and spirit of the law is not a function delegated to the public officer by law, therefore a public officer who breaks the law with impunity cannot be said to be executing the law or intending to execute the law by his malfeasant act of breaking the letters and spirit of the law or statute that he is entrusted to execute. Doing an act in pursuance of a law means, in my view, doing the act in the spirit or within the intent of the law.
The verb: execute is synonymous with accomplish, carry out, effect, perform, administer, enforce: Geddes & Grosset – English Thesaurus. Accordingly, if the public officer, whose duty it is to enforce the law, in order to accomplish its legislative intent, sets out deliberately to do the opposite by sheer act of malevolence or malfeasance; by his impunity he has thereby stepped himself out of the protective scope of the Public Officers (Protection) Law, or the Public Officers (Protection) Act. The statute is hot intended to offer its protection to such impulsive impudence that smacks of insubordination to the promulgators of the States Creation (Transitional Provisions) Decree No. 36 of 1999, the enabling statute or law that created Ilejemeje Local Government Area of Ekiti State with its headquarters at Eda-Oniyo. The conduct of the Respondents, particularly the 1st Respondent, in illegally relocating the headquarters of Ilejemeje Local Government from Eda-Oniyo to Iye-Ekiti without the Constitutional or Statutory backing or authority is clearly an act of disobedience or insubordination.
Ordinarily, as can be seen from SINCLAIR v. NEIGHBOUR (1967) 2 W.LR. 1, (1967) 3 ALL E.R. 988, cited with approval by this Court in SULE v. NIGERIAN COTTON BOARD (1988) 6 SC 62; (1985) LPELR – 3124 (SC) such an act of a Public Officer amounting to disobedience or insubordination attracts against the Public Officer a sanction of his dismissal from the public service or his office.
In my considered view, and in agreement with my learned brother, PAUL ADAMU GALINJE, JSC, I hold firmly that the crass illegality of the 1st Respondent in his insubordinate impudence of unilaterally relocating the headquarters of Ilejemeje Local Government from Eda-Oniyo to Iye-Ekiti is not an act done in pursuance or execution or intended execution of Decree No. 36 of 1999. Accordingly, the limitation period of three months provided by the Public Officers (Protection) Law of Ekiti State, or the Public Officers (Protection) Act, within which such action can be challenged is not applicable in the instant case. The facts of this case remove it from the scope of the Public Officers (Protection) Law.
I allow the appeal. I hereby adopt all the consequential orders made in the lead judgment.
MARY UKAEGO PETER-ODILI, JSC: I agree with the judgment just delivered by my learned brother, Paul Adamu Galinje JSC with some reservation on the validity of the Court of Appeal judgment. I shall make some remarks.
The appellant who was the plaintiff at the High Court of Ekiti State is the paramount ruler of Eda – Oniyo in Ekiti State and filed an action by writ of summons on 2″d August, 1999 and he sought the reliefs set out hereunder, viz:-
1.A DECLARATION that by virtue of the State Creation and Transitional Decree No. 36, Volume 83 of 1996, Local Government (Basic Constitutional and Transitional Provisions) Decrees of 1997 and 1998, Eda – Oniyo is still the headquarters of Ilejemeje Local Government of Ekiti State.
2.AN ORDER of court declaring illegal, irregular, unconstitutional and therefore null and void any act done or purported to have been done recognizing lye – Ekiti as the headquarters of Ilejemeje Local Government of Ekiti State.
3.AN ORDER of Court restraining the defendants jointly and severally, by themselves, their agents and privies from recognizing Iye – Ekiti as the headquarters of Ilejemeje Local Government.
4.A PERPETUAL INJUNCTION restraining the defendants jointly and severally by themselves, their agents and privies from carrying out the administrative activities of the Ilejemeje Local Government in any other town apart from the Local Government Headquarters, which is Eda – Oniyo, Ekiti.
Upon hearing the matter, the trial learned Judge, J. B. K. Aladejana J. delivered his judgment on 10th December 2001 and granted reliefs 1, 2, and 3 but refused relief 4. Dissatisfied with the decision the 3rd defendant filed his appeal on 18th December 2001 while the 1st and 2nd defendants filed their appeal on 8th March, 2002.
The gravamen of the appeals was generally, that the trial court had no jurisdiction to hear the matter on grounds: (a) that it was statue barred (b) that the proper Defendants were not before the court (c) that given the nature of the complaint, the plaintiff/ respondent has no reasonable justifiable cause of action, and (d) that the actions or inactions of the then Federal Military Government could not form the subject matter of litigation.
As regards the 3rd Defendant/Appellant its additional grouses were: (a) that the plaintiff/ respondent had no locus standi to commence the action; (b) that no pre-action notice had been served on the local Government before instituting the action, and (c) that the defendants/ appellants had been denied their right of fair hearing.
On the 1st February 2006, a panel of the Court of Appeal consisting of Muntaka-Coomassie JCA, (as he then was) A. J. Ikongbeh, JCA and H. M Ogunwumiju, JCA sat and heard the appeals and reserved judgment.
On the 6th of March, 2006 a differently constituted panel of the Court of Appeal, now composed of Honourable Justice M. S. Muntaka-Coomassie, Honourable Justice Ikongbeh and Honorable Justice Tijani Abdullahi, JJCA each contributed to and delivered the judgment of the court.
Thus, Honourable Justice Abdullahi JCA who had never heard the case of the parties delivered his own opinion in writing, whereas, Honorable JUSTICE Ogunwumiju JCA who had sat and heard the case never contributed to the judgment of the court. And the record of appeal attests to this.
In its said judgment of 6th March, 2006 the Court of Appeal held that the plaintiff/respondent’s action had become statute barred by the time he instituted it. The Court of Appeal on this ground alone allowed the defendant/appellant’s appeals, even though it dismissed all the other aforementioned grounds of appeal.
After the Court of Appeal had delivered, signed, certified and handed copies of the judgment to the parties, it sent, hearing notices to all the counsel involved in the matter requiring them to come back and address it on whether the appeal should be reconsidered and re-decided by the original panel that had heard it, or whether the appeal should be heard de novo, having discovered the fundamental flaw in the delivery process of the judgment.
After taking arguments from counsel the Court of Appeal on 31st May 2006 ruled that its judgment 6lh March, 2006 must stand notwithstanding “its attendant mistakes/ misadventure”.
The plaintiff (appellant herein) has now appealed against the said judgment of 6* March 2006 and the ruling of 31st. May, 2006.
On the 8th day of October, 2018 date of hearing, learned counsel for the appellants, adopted the brief of argument filed on 28th October, 2009 and deemed filed on 15-12-2009 and raised two issues: –
i. Was the decision of the Court of Appeal delivered on 6th March 2006 by a panel differently constituted from that which had heard the case a valid judgment within the meaning of the provisions of section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999?
ii. Was the Court of Appeal right in holding that the Public Officers Protection Act was applicable to this case and that the action of the Plaintiff/ Appellant was statute barred?
Learned counsel for the appellant also adopted the reply brief filed on 20th April, 2017 and deemed filed on 8th October, 2018.
The 1st and 2nd respondents were absent at the hearing and not represented though served and so their brief of argument settled by Gboyega Oyewole and filed on 15th December, 2009, was deemed properly argued and in it they adopted the issues as formulated by the appellant.
Learned counsel for the 3rd respondent, Taiwo Kupolati adopted the brief of argument filed on 26th October, 2010 and deemed filed on 5th June, 2013. He raised three issues for determination which are thus: –
(a) Whether the decision of the Court of Appeal dated 6th March 2006 which was affected by bench variation is necessarily a nullity which should be set aside or an irregularity for which prejudice and miscarriage of justice ought to be established or shown before it could be set aside. Does the decision of the Court of Appeal dated 27th May, 2006 not accord with substantial justice?
(b)Whether the decision of Ubwa v Tiv Area Traditional Council and Sokoto State Government v Kamdex (Nig) Ltd heavily relied on by the appellant should be overruled or departed from, having been reached per incuriam and on account of their likelihood for perpetuating injustice.
(c)Whether the appellant’s action was statute barred under section 2(a) of the Public Officers Protection Law, Cap 103 applicable to Ekiti State.
I shall make use of the issues as simply crafted by the appellant.
ISSUE NO 1
Was the decision of the Court of Appeal delivered on 6th March 2006 by a panel differently constituted from that which had heard the case a valid judgment within the meaning of the provisions of section 294 (2) of the Constitution of the Federal Republic of Nigeria, 1999.
Learned counsel for the appellant submitted that there was non-compliance with the Constitutional Provisions of section 247(1) and that the court below became incompetent when a stranger to the appeal participated in the judgment He cited Section 294(2) (3) and 4 CFRN. That this court should set aside the judgment which was wrongful, illegal, unconstitutional and as such a nullity.
For the 1st and 2nd respondents it was submitted that the court below complied with section 226 of the 1979 Constitution because three justices sat on 1st- February 2006 to hear the appeal but section 258 (2) of the Constitution was breached because not all the justices who heard the appeal expressed and delivered their opinion in writing as required by the constitution when Abdullahi JCA who did not take part in the hearing of the appeal made a written contribution to the judgment thereby rendering the judgment null and void. He cited Ubwa v Tiv Area Traditional Council (2004) 11 NWLR (Pt 884) 427; Sokoto State Government v Kamdex Ltd (2007) 7 NWLR (Pt.1034) 466.
He urged the court to send the case back to the Court of Appeal for hearing de novo by another panel of the court.
Learned counsel for the 3rd respondent contended that the court bellow’s competence was not lost because a judge who did not participate at the hearing took part in the judgment delivery. That the judgment was valid.
In reply on points of law learned counsel for the appellant said a miscarriage of justice occurred with the improper panel constitution at the judgment stage. He cited the Nigeria Army v Lt Patrick Dodo (2012) 6 SC (Pt.111) 77; Oloyede Ishola v Memudu Adefulu v Okulaja (1998) 5 NWLR (Pt.550) 441; Odiase v Agho (1972) 1 ALL NLR (Pt.1) 170.
The contending positions of the two sides in this appeal are on the one-part appellant submitting that the judgment delivered by the court below consisting of Muntaka-Coomassie, Ikongbeh and Abdullahi JJCA on 6th March 2006 was wrongful, illegal, unconstitutional and subsequent ruling of the court delivered on 31- of May 2006 was misconceived, illegal and unconstitutional and to have the appeal remitted to a panel of the court with none of the justices involved in any part of the appeal proceedings partaking in the new process.
The opinion of the 1st and 2nd respondent is that the mistake committed by the lower court should not be visited on any of the parties but the judgment should be set aside and the matter sent back to the Court of Appeal for hearing de novo by another panel of the court.
The opposing stance of the 3rd respondent is that the competence of the court below cannot be lost by reason of the participation in the proceedings by a judge who never heard the case and by extension the judgment that came by this irregular participation cannot be declared a nullity.
The situation calls for a recourse to the Constitution for guidance and the first port of call being section 294 (2) of the 1999 Constitution (as amended) (CFRN for short) and it provides as follows: –
“section 294(2): Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other justice who delivers a written opinion: provided that it shall not be necessary for all the justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a justice may be pronounced or read by any other Justice whether or not he was present at the hearing”.
Section 10 of the Court of Appeal Act as amended is of the same mould.
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it-consists of not less than three justices of the Court of Appeal”.
The above Constitutional Provision is similar to that of section 9 of the Court of Appeal Act as amended.
The above stipulations were interpreted by this court in the case of Akubuike v Okeke (1985) 4 SC (Pt.1) 214 at 224-225 per Irikefe JSC (as he then was) to be satisfied in the following circumstances, viz:-
(a)Where one justice sitting alone read his own judgment to which the others who sat with him had earlier signified their concurrence in writing;
(b)Where all the justices who sat in the case sitting together to read their individual opinions one after the other;
(c)Where justices other than those who sat to hear the case sitting to read the judgment already, signed, authenticated and produced by those who sat over the case.
Clearly a judgment is valid only where one of the above modes of the delivery is adopted by the appeal court and the fall out of the none compliance with any of those modes is that the entire proceedings have been vitiated and the resultant judgment a nullity. Taking the situation in context to the case in hand three Justices heard the appeal on 1st February 2006 Coram: Muntaka-Coomassie, Ikongbeh, Ogunwumiju JJCA but when it came to delivery of the judgment it was Muntaka-Coomassie, Ikongbeh and curiously Tijani Adbullahi JJCA and the latest member was never part of the hearing panel, but he sat and delivered a concurring judgment in open court on 6th March 2006.
What transpired on the delivery of judgment caused one of the counsel involved in the matter to draw the court’s attention to the anomaly and in reaction the court below re-empanelled and called counsel to address it on whether or not the appeal should be heard de novo. The lower court in its new ruling decided mat the judgment of 6th March, 2006 was not a nullity in spite of the mistake m the panel constitution.
In a situation akin to the present one in Ubwa v Yaweh (2004) 9 MJSC 61; (2004) 11 NWLR (Pt.884) 427 The Supreme Court held as follows: –
“The entire proceedings before the Court of Appeal were a nullity because all the members who heard the appeal and those who wrote the judgments were not all present throughout the hearing of the appeal which includes delivery of judgment” Per Kutigi JSC (as he then was). Mohammed JSC said: “I agree. The judgment of the Court of Appeal is a nullity since Mangaji JCA did not take part in hearing the appeal he cannot write a judgment in the case. I too allow the appeal and send the case back to the Court of Appeal, Jos Division, for hearing de novo before a differently constituted panel of that court”.
A similar scenario had presented in another case in Sokoto State Government v Kamdex Nig. Ltd. (2007) 7 NWLR (Pt.1034) 466 SC. Of three justices of the Court of Appeal, Ogebe, Aderemi and Chukwuma-Eneh JJCA, who had heard an appeal on 5th November 2003, Ogebe jCA did not deliver or write an opinion. Instead it was Galadima JCA who had not taken part in the hearing that wrote a concurring judgement. The Supreme Court held that the judgment was not a complete judgment of the Court of Appeal because one of the justices who had heard the appeal did not reduce his judgment or opinion in writing capable of being delivered on the day fixed for the delivery as required by section 294(2) of the 1999 Constitution. Although that court was properly constituted on the day fixed for the delivery of judgment by three justices- Galadima, Aderemi and Chukwuma-Eneh JJCAA the judgment was delivered not by members of the same panel that had heard the appeal on 5th November 2003. This court concluded that the judgment of Galadima JCA rendered the whole judgment of the Court of Appeal a nullity, Galadima JCA having not partaken in the hearing on 5th November 2003.
The 3rd respondent seeking to validate the judgment of the Court of Appeal of 1st March, 2006 in spite of the irregular constitution of the panel and anchoring the position with the case of Shuaibu v Nigeria-Arab Bank Ltd (1995) 5 NWLR (Pt.551) 482 is to use the wrong medicine for a given ailment since the circumstances or facts are different. In the Shuaibu’s case, Okezie JCA and two other Justices heard the appeal and reserved judgment to the 10th April, 1991 on which date the three said justices sat and read their judgments, lead and concurring. It was later found in the record of appeal that Adio JCA who was not part of the panel that either heard or delivered the judgment had his concurring judgment in the Record.
On appeal, the Supreme had held that variations in the bench do not make the judgment a nullity without more., but must be decided within the context of a given case.
In the Shuaibu case, clearly a freak accident had propelled Adio JCA (as he then was) to write a contribution in a judgment he was not part of. Ordinarily that would have on its own vitiated the Shuaibu judgment but the converse was the case because the proper panel had concluded the hearing and delivery of the judgment and become functus officio before the Adio JCA judgment erupted, 1 dare say to no purpose and the matter had been concluded and the entire proceedings complete and nothing could therefore add to or subtract therefrom.
Also to be said is that the strange appearance of the name Adio JCA was clearly one of those human errors that can be explained from a mistake at the registry in the course of compiling the Record. It is for such happenings albeit curious that every case is examined on its merits and circumstances and can or cannot be utilised to give a similar decision. The facts or circumstances must be on all fours or similar before an earlier decision is followed to decide a later one. For measure, Shuaibu v Nigeria -Arab Bank Ltd (supra) is not in conflict with Ubwa v Yaweh (supra).
What 1 am at pains to communicate is that nothing placed by the 3rd respondent can hold back the hand of the court in stating that the judgment, alongside the entire proceedings of the Court of Appeal which judgment was delivered on 1st March, 2006 is a nullity for wrong constitution of the panel at the judgment stage and nothing can rectify it as the statutory and constitutional infringements are fundamental. See 247 (1) and 294(2) of the 1999 Constitution and sections 9 and 10 of the Court of Appeal Act. The follow up is that the appeal had not been heard at the court below and in line with the well-considered lead judgment, I allow the appeal and remit the case back to the Court of Appeal of another panel to hear the appeal de novo.
I abide by the consequential orders as made.
OLABODE RHODES-VIVOUR, JSC: This appeal is against the judgment of the Court of Appeal delivered on 6 March 2006 and the Ruling, also of the Court of Appeal delivered on 31
SIDI DAUDA BAGE, JSC: I have had the benefit of reading in draft the lead judgment of my learned brother Paul Adamu Galinje, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I abide by all the orders contained in the Lead Judgment The appeal succeeds in part.
COUNSELS
Mr. Oluwadamilara Awokoya Esq, with Abdulhamid Basali for the Appellant|Mr. Taiwo Kupolati Esq, with Taiwo Ajiboye 3rd for the Respondent.|Reg- 1st and 2nd Respondents served.|
