OJOKOLOBO & ORS V. ALAMU & ANOR
| Pages | 991-1024 |
OJOKOLOBO & ORS V. ALAMU & ANOR
991
could not have looked into it, and it will be a futile exercise for him to make
a finding on it."
The other Justices agreed with him that the document should be expunged
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from the proceedings in appeal.
It is to be noted that the document Exh. FCA1 was not tendered at the trial and
without it, the Appellants lost their claims; but it was thought that by producing the
said document as an additional evidence in the Court of Appeal, it would bolster
their claims. However, it was unanimously rejected and expunged from the pro-
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ceedings by the court of Appeal for the reasons given
supra.
Having considered all the circumstances, I am satisfied that the Court of Ap-
peal was right in rejecting the document Exh. FCA1 which in my view should
not have been admitted in the first place as an additional evidence. The appeal
therefore fails; and I will also dismiss it as lacking in merit with N300.00 costs in
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favour of the Respondents.
Appeal dismissed.
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OJOKOLOBO & ORS V. ALAMU & ANOR
LAMIKORO OJOKOLOBO & ORS
25
V
LAPADE ALAMU & ANOR
SUPREME COURT OF NIGERIA
APPELLANTS
RESPONDENTS
SUIT NO. SC 42/1987
BELLO,
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OBASEKI,
ANIAGOLU,
NNAMANI,
KAZEEM,
KARIBI-WHYTE,
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BELGORE,
9th July, 1987
C.J.N.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
Appeals - Appeal Court to decide parties' rights in accordance with law as at
date of judgment - Laws passed after that date cannot be considered
-
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Constitutional law - Decree No. 17 of 1985 - whether applies to suits decided
before its effective date, 27/8/8.5 - effect of S.258(1) and (4) of 1979 Constitution.
Judicial Interpretation - In construing the Constitution, sections to be read as a
whole - Intention of legislature must he deduced from the words used
-
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Presumption against retrospective legislation - Presumption is rebuttable -
Legislature is presumed not to intend what is unjust - Presumption is rebuttable
- Statute passed for purpose of explaining a former statute has retrospective
effect back to the time earlier statute was passed - Words should be given
their ordinary meaning - Judiciai precedent to depart from a previous decision
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two conditions must be met.
Practice and Procedure - Upsetting previous decision - Supreme Court competent
to receive argument and if satisfied to overrule its previous decisions.
992
NIGERIAN SUPREME COURT CASES
[1987] 2 N.S.C.C.
Words and Phrases - Meaning of "retrospective statute" - "Shall set aside"
contemplates something in future.
ISSUES:
1.
Whether an Appeal Court can in deciding an appeal consider laws passed
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after the date judgment was delivered in the lower court.
2.
What is the individual and combined effect of s.258(1) and s.258(4) of the 1979
constitution?
3.
Whether s.258(4) of the 1979 constitution operates retrospectively.
4.
What is the meaning of "shall set aside" as used in S.258(4) of the 1979
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Constitution?
5.
Is the condition in Section 258 of the 1979 Constitution amended by the addition
of a new subsection 4 which requires miscarriage of justice a new ground going
beyond the nullity stipulated by section 258(1)?
6.
What is the scope of new amendment to Section 258 of the 1979 Constitution
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(sub-section 4)?
7.
When can an Act of Parliament be said to have retrospective effect.
8.
What is the effect of Section 258(1) of the 1979 Constitution?
FACTS:
The respondents/plaintiffs brought an action against the appellants in Ibadan
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High Court, in which they claimed a declaration, an injunction and damages. Final
addresses were concluded on 7th July, 1982 and judgment was delivered on 12th
October, 1982 after three adjournments. The trial Judge gave judgment in favour
of the respondents and granted all the reliefs sought. The appellants appeal to
the Court of Appeal was dismissed on all grounds. They further appealed to the
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Supreme Court where they contended,
inter alia,
that the judgments of the Court
of Appeal and the High Court were void because the High Court judgment was
delivered three months after conclusion of addresses in breach of s.158(1) of the
1979 constitution. The respondents in turn argued that the breach of s.258(1) was
curable by the provisions of s.258(4) which became effective on 27th August, 1985
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by virtue of Decree No.17 of 1985.
HELD:
1.
The Constitution (Suspension and Modification) (Amendment) Act No.17 of
1985 came into effect on 27th August, 1985. Nothing on the face of the
provisions of the Act suggest that it was intended that it should apply to any
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transactions before that date. S.258(4) of the Constitution will only apply to
judgments delivered after 27th August, 1985. It is therefore inapplicable in this
case.
2.
Section 258(1) provides that for a court judgment to be valid it must be
delivered within three months and any judgment delivered by a court after that
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mandatory 3 months is a judgment delivered without jurisdiction. S.258 (4) now
allows an appeal court to examine that judgment and determine whether there
was a miscarriage of justice, and if there is, the judgment cannot be treated as
a nullity.
3.
The Supreme Court in three previous decisions held that the new subsection 4
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of s.258 was not retrospective.
4.
It is a cardinal rule of the Constitution of Statutes that words should be given
their ordinary and natural meaning. To do this one has to look at the words of
the Statute carefully. Having done that, the use in subsection 4 of Section 258
of the words "shall set aside" contemplates something in future. that is judgment
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delivered after the commencement date of the amendment which is 27th August
1985. It had to refer to judgments delivered after that date for the Section
continues with the words "or treated as a nullity' which cannot apply to
OJOKOLOBO & ORS V. ALAMU & ANOR
993
judgments delivered before 27/8/85 which were already a nullity if they violated
the provisions of section 258(1).
5.
The condition in Section 258(4) which requires miscarriage of justice is a new
ground beyond the nullity stipulated by Section 258(1). It has also been
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established by the Supreme Court that in construing the provisions of our
Constitution the Sections have to be taken together.
6.
The sub-section is directed to every court and so a judgment to be valid was
to be delivered within 3 months, and as a corollary, any judgment delivered by
a court after the mandatory 3 months is a judgment delivered by that court
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without jurisdiction.
7.
Subsection 4 of Section 258 now carries the matter further. While the judgment
per subsection 1 is a nullity and is delivered without jurisdiction subsection 4
allows the court to examine that judgment and determine whether there was a
miscarriage of justice. If there is none, the judgment cannot be treated as a
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nullity, that is the court now has jurisdiction to so examine such a judgment
before deciding whether or not it is a nullity.
8.
It is a well-settled principle of law that an Act of Parliament cannot be construed
as having retrospective effect unless there are express words in the enactment
showing such an intention. This is based on the presumption that the legislature
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does not intend what is unjust. Statutes are construed as operating only in cases
or on facts which came into existence after the Statutes were passed unless a
retrospective effect is clearly intended. A Statute is not to be given a
retrospective effect so as to impair existing or vested rights.
9.
The effect of Section 258(1) is that any judgment delivered outside the period
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of 3 months from the conclusion of evidence and final addresses is void. The
party that lost in such a suit does have right which have vested as a result of
such a void judgment, for the party that was 'successful' cannot denue any
consequential benefits from that judgment without being successfully
challenged. In this case it was not the intention of the legislature to enact a
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subsection which would have the effect of adversely affecting such vested
rights.
Per
ANIAGOLU, J.S.C.:
10.
What subsection 4 has done is not to revive the old jurisdiction of the High Court
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in respect of the case in hand, which terminated at the end of the three months
period, but to invest a new jurisdiction upon the Appellate Court which is seised
with the matter on appeal or on any other court before which the judgment is
produced on review, enjoining it, from the operative date, namely 27th August
1985, not to set it aside or treat it as a nullity if the sole ground for that is the
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non- compliance with the provisions of section 258(1), unless that 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.
11.1t is a power granted to the Appeal Court or a court having power to review the
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judgment. It is not a power granted to the trial court.
Per
BELGORE, J.S.C.:
12. Subsection 4 of Section 258 of the Constitution by the very words used to wit:
"No judgment shall be" envisages no retrospective application and certainly
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does not govern judgment given prior to 27th August, 1985.
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