DECISION UNDER SECTION 277 (1) OF THE 1979 CONSTITUTION

• Date: 06 February 2019

(1) "It goes without saying therefore that the ruling of the learned trial Judge culminating in his refusal to stay the proceedings in question is without any iota of doubt a decision within the ambit of section 277(1) of the 1979 Constitution from which a party can appeal and the section provides: - "decision means, in relation to a Court, any determination of that Court and includes Judgment, decree, order, conviction, sentence or recommendation." - Per Musdapher, J.C.A. in Lekwot v. Judicial Tribunal Suit No. CA/K/222/92; (1993) 2 N.W.L.R. (Pt. 276) 410 at 460.

(2) "However, I wish to say at this stage, that the interpretation canvassed by Chief Adejumo cannot be correct in the face of the judgment of Udoma, J.S.C. in Nafiu Rabiu v. The State (1981) 2 N.C.L.R. 293, 332 referred to by Chief Williams. The Learned Justice said: - "In my opinion, the phrase in the definition to which the greatest importance ought to be attached is the expression which reads: - "means any determination of the Court and include’. The purpose of the use of the expression in my view, is to widen the scope of the concepts covered by the term ‘decision’ It is certainly not to narrow it, meaning as it had been urged by learned counsel. Thus, used in that wide sense, the term ‘decision’ would cover all forms of conclusion involving decision making." He finally construed a decision or determination by the High Court to include an acquittal by the said Court under section 277(1) of the 1979 Constitution even though acquitted is not expressly stated therein." - Per Dosunmu, J.C.A. in In re: Shyllon Suit No. CA/I/185/84; (1994) 6 N.W.L.R. (Pt. 353) 735 at 750 - 751.

(3) "In the case of Nafiu Rabiu v. The State (1981) 2 N. C. L. R. 293, 332, Udoma, J.S.C., said: - "In my opinion, the phrase in the definition to which the greatest, importance ought to be attached is the expression which reads means any determination of the Court and includes’ the purpose of the use of such expression in my view, is to widen the scope of the concepts covered by the term ‘decision’. It is certainly not to narrow its meaning as it has been urged by learned counsel. Used in that wide sense, the term ‘decision’ in my view would cover all forms of conclusion involving decision making." - Per Babalak in, J.C.A. in Badejo v. Fed. Minister of Education Suit No. CA/L/405/88; (1990) 4 N.W.L.R. (Pt. 143) 254 at 263.

(4) "The two foregoing authorities were considered and applied in Shyllon’s case, and it was held per Dosunmu, J.C.A., that what the trial Judge said about the appellant in that case was not a remark made in passing in respect of a witness, which is, perhaps, too simplistic: - "It is more than ‘a remark’ in passing. It is a deliberate judgment of the trial Court on the appellant having considered the conflicting averments in the affidavit and preferring the respondent’s affidavit." It was further held in that case that the words following the words "includes" not being exhaustive did not narrow the genus of things that followed thereafter; and that If a ‘remark’ or observation’ will bear the colour and shade of a decision and not just what is ascribed to it, such remark or observation must be regarded as being within the context of the words which surround it, and in this case within the contemplation of the definition. It ceases to be just a ‘remark’. It is a ‘determination’ per Omololu Thomas, J.C.A." - Per Omololu-Thomas, J.C.A. in In Re: Madaki Suit No. CA/I/ M.146/89; (1990) 4 N.W.L.R. (Pt. 143) 266 at 276.

(5) "I cannot see how the giving of some examples of the nature of the determination which are ‘intended to be extensive’ shall be used to restrict the meaning of the very word whose meaning the examples intend to extend. To do so would be to interpret the words of the Constitution with ‘stultifying narrowness’ - Per Obaseki, J.S.C., in A-G. of Bendel State v. A-G. of the Federation & Ors. (1982) 3 N.C.L.R. 1 at 13-14. In the unreported case of Asein v. University of Ibadan in Re: Professor Folarin Shyllon Suit No. FCA/I/185/84 delivered 27th June, 1985, Dosunmu, J.C.A. had this to say: "...........clearly therefore, "decision or determination" by the High Court cannot be restricted to those words expressly mentioned. It should include all forms of conclusions by the High Courts that any determination of the High Court, apart from those expressly mentioned is a decision of the High Court and it is appealable" See also Re: Madaki (1990) 4 N.W.L.R. (Pt. 143), 266 at 275-6 per Omololu Thomas, J.C.A.; Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 N.W.L.R. (Pt. 14) 47 at 73." - Per Ubaezonu, J.C.A. in Onagoruwa v. State Suit No. CA/L/230M/ 90; (1992) 5 N.W.L.R. (Pt. 244) 713 at 729.

(6) "On the use of the word ‘include’, Idigbe, J.S.C., in the Nafiu Rabiu case (supra) put the matter succinctly as follows: - "It has, in my respectful view, quite rightly been said that sometimes however, the word "include" is used in order to enlarge the meaning of words or phrases occurring in the body of a statute; and when it is so used those words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include... It is well known that where a statute defines a word simply as "means so and so", the definition is meant to be explanatory and prima facie restrictive, but where the word is so defined to "include so and so" then the definition is clearly intended to be extensive." - Per Ubaezonu, J.C.A. in Onagoruwa v. State Suit No. CA/L/23M/90; (1992) 5 N.W.L.R. (Pt. 244) 713 at 728 - 729.

(7) "The six examples given in section 277(1) are not restrictive or exhaustive. The section says it "includes". A thing which is said to include something is more wider than the thing or things it includes. That thing cannot be equal to or restricted to the thing it includes. Geometry taught us that a part can never be equal to a whole. What is included in something cannot be equal to that thing. The Shorter Oxford English Dictionary defines the word "include" (in part) as "To contain, comprise, embrace; as a member of an aggregate or constituent part of a whole...... The fact that ‘ruling’ is not included in the six examples of what ‘any determination’ includes, does not exclude a ‘ruling’ from being a determination and therefore a ‘decision’ within sections 220 (1) and 221(1) of the Constitution." - Per Ubaezonu, J.C.A. in Onagoruwa v....