In The Supreme Court of Nigeria
On Friday, the 18th day of May 1984
S.C. 68/1982
Between
Chief Dominic Onuorah Ifezue ....... Appellant
And
Livinus Mbadugha ....... Respondent
The Deputy Sheriff, Onitsha
Judgement of the Court
Delivered by
Anthony Nnaemezie Aniagolu. J.S.C
The outcome of this appeal hinges on the interpretation of section 258(1) of 1979 Constitution. Although the grounds of appeal encompass other issues of law and fact which were argued before the Federal Court of Appeal, the interpretation of S. 258(1) becomes the dominant issue in the appeal because should appellant's arguments on it be accepted, no useful purpose (other than fanciful academic peregrinations) would be served by going through the facts and issues of law arising therefrom.
Before, however, embarking upon this main issue, it is perhaps worth the while to set out in a brief outline the facts of the case between the parties bringing about this litigation.
There is a house situate in block 44, plot 18 at Onitsha commonly known as No. 12 Anyaegbunnam Street, Fegge, Onitsha. The plot of land on which this house was built was the subject of a grant to the plaintiff/appellant from government for a period of 40 years commencing from 1st January 1961. It was the appellant who erected the building on the plot of land. It contains ten rooms, four of which he occupied himself and the rest he let out to rent-paying tenants. The army took over the occupation of the house paying rents to the plaintiff. In 1973 the plaintiff gave a power of attorney (exhibit 5) to one J. U. Okeke, by reason of the fact, as stated by him, that he was travelling overseas, for Mr. Okeke to administer, manage, superintend the management, of the building with power to sub-let, mortgage, assign to himself or to any other person or persons the plot and the building. The power of attorney was stated to be given in consideration of an agreement for sale, in order to facilitate the carrying out of the contract which was said to be irrevocable. The plaintiff handed to the said Mr. Okeke the original deed of lease.
Later on 5th October 1974 a receipt (exhibit 4) was issued by Mr. Okeke to the plaintiff acknowledging payment by the plaintiff to Mr. Okeke of a sum of N8,500.00 stated there to be
"consideration in respect of the revocation of the power of attorney granted to him in respect of No 12 Anyaegbunam Street, Fegge, Onitsha."
On the same day, the said J. U. Okeke in turn gave to the plaintiff/appellant an irrevocable power of attorney, clause 5 of which stated that
"this power of attorney is necessary and given because an agreement for the sale of the plot as expressed in paragraph 11 of the power of attorney dated the 4th day of August 1973 fell through and was abandoned by mutual consent by myself and Chief Ifezue."
This instrument was not registered until 7th June 1977.
The appellant did not assign the plot to J.U. Okeke. Equally, J. U. Okeke did not at any time exercise the power granted to him under the original power of attorney which the appellant gave to him, to assign the property to himself or to any other person. But, he did exercise the power of mortgage contained in the instrument by mortgaging (exhibit 10) the property to a bank - a mortgage in which he described the property to be his own - as security for a loan. While the mortgage was still subsisting, Okeke became a judgment debtor to the firm of C.F.A.O. in Suit 0/174/73. He applied to court by motion for instalmental payment of the judgment debt in the said suit 0/174/73, and in his affidavit in support named the house as his property. His creditors later applied for and obtained the leave of court to levy execution against the house as property of J. U. Okeke. The court gave leave for the property to be attached and a subsequent order of court gave leave for the property to be sold.
In April 1975 the property was sold by order of court by the Deputy Sheriff, Onitsha, to the 1st defendant (Livinus Mbadugha) for a sum of N8, 360.00. Thereafter, at the request of the Registrar of the court , Mbadugha paid an additional sum of N444.73 claimed by the bank to write off their mortgage transaction with Okeke on the property The Registrar then issued a certificate of purchase (exhibit 7) dated 3rd May 1975 to Mr. Mbadugha. The Ministry or Works and Housing approved in principle the transfer of the property to Mr. Mbadugha (exhibit 8).
The transfer in fact had not actually taken place. It is to be noted that the appellant took no part in the enforcement proceedings in the suit 0/174/73 nor did he interplead when the property was attached. There was also no direct evidence that he knew of the case, 0/174/ 73, or of the attachment of the property until the 2nd day of May 1977 when he filed in court an affidavit (exhibit 6) in which he stated that he had just learnt of the proceedings in 0/174/73 and that the attached and sold property belonged to him and not to Mr. J. U. Okeke. On 2nd May 1977 he filed this suit in the Onitsha High Court claiming:
(i) that he was the lessee of the Government of Ananbra State of the property in question;
(ii) an order setting aside or declaring void the purported sale of the property by the Deputy Sheriff to Livinus Mbadugha;
(iii) an order of injunction restraining Mbadugha and the Deputy Sheriff from interfering with the property, and
(iv) N2,000.00 damages for inconvenience and embarrassment.
These were the background facts of the case the knowledge of which, strictly speaking, is not necessary for the determination of the main legal issue on which this appeal is to be decided. It is however narrated for the purpose of completeness.
Section 258 (1) of the 1979 Constitution the bone of contention - reads:
"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, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof"
(Underlines are mine for emphasis).
For the purpose of this appeal all counsel in the appeal, including Chief F. R. A. Williams, S.A.N., who appeared by leave of court as amicus curiae, have joined issue on the interpretation of the said S. 258 (1) of the Constitution. What went on in the Court of Appeal by reason of which the provisions of the said section 258 (1) are being invoked (and there is no dispute on this) was as follows:
On Monday the 23rd day of March 1981 the appeal came up for hearing before the Federal Court of Appeal (Aseme, Belgore and Olatawura JJ.C.A.). Counsel argued the appeal which was adjourned to 26th March 1981 for continuation of hearing. At the conclusion of hearing on the said 26th March 1981 the Court adjourned for judgment with these words:
"Judgment reserved".
Three months from 26/3/81 would have brought the matter to 26th June 1981. But nothing was heard of the appeal until 9th November 1981 when the records show that it was resumed on that day before their Lordships. The appeal was then further adjourned to 16th November 1981 on which day appeal was reopened by court in these words:
"Appeal is reopened and learned counsel are asked to address the court whether order of non-suit is desirable in the circumstances of this case".
Be it noted that on the said 16th November 1981 the undelivered judgment was then 7 months and 3 weeks away from the date (26/3/81) on which the appeal was reserved for judgement. The question poses itself:
Had the Court the power - indeed, the jurisdiction - to reopen the appeal after the expiration of the three months stipulated in the delivery of judgments?
The answer to this question will come later in the course of this judgment.
After the re-opening, counsel put forward fresh arguments, adopting, in addition, their earlier arguments. Mr. Okolo counsel for the then defendant/appellant, urged the court to dismiss the plaintiff's case, and allow their appeal, while Dr. Ume who was appearing for the plaintiff pleaded with the court to uphold the judgment of the High Court and dismiss the defendant's appeal. The court then, immediately thereafter, delivered its judgement and non-suited the plaintiff. It was from this non-suit judgment that the plaintiff (appellant) has appealed to this Court.
Appellant filed 11 grounds of appeal on various and diverse matters but I will only set out one ground - namely ground 1 as only that ground of appeal is necessary for the only issue which now calls for a decision. It reads:
( 1 ) Error in Law.
The learned Justices of the Federal Court of Appeal erred in law by given (sic) judgment in this case contrary to section 258 of the Constitution of the Federal Republic of Nigeria 1979
Particulars of Error.
(i) The learned Justices of the Federal Court of Appeal after argument and reply by counsel for both parties on 23/3/81 and 26/3/81 respectively, adjourned the case for judgment. No judgment was given within the constitutional stipulated period of three months.
(ii) After the said period the learned Justices continued with the case and gave judgment on the 23rd day of November 1981, non-suiting the plaintiff/appellant, contrary to the views openly expressed by the learned Justices on the day when the addresses by counsel were concluded.
(iii) The delay in delivering the judgment operated adversely against the interest of the plaintiff/appellant and affected the justice of the case.
(iv) Throughout the proceedings before the said adjournment for judgment, the question of non-suit was never raised either by the court or any of the parties. Counsel were not asked to address the court on the issue or point."
I am strictly not concerned here with sub-paragraphs (iii) and (iv) of the above particulars. I shall only concern myself with sub-paragraphs (i) and (ii) which are specifically germane to the issue.
I shall endeavour to narrate the argument of counsel., both from their briefs and orally before us, as succinctly as possible.
Dr. Ume, posed many questions in his brief respecting the re-opening of the appeal by the Court of Appeal; the question of non-suit; the failure of the Court of Appeal to appreciate that J. U. Okeke neither had a grant of a lease of the house from government nor an assignment to him of the lease; and the question whether the Court of Appeal had power to act contrary to the provisions of S. 258. of the Constitution either by re-opening the appeal or delivering the judgment after three months of the conclusion of evidence and final addresses. To these questions Dr. Ume answered in the negative.
He contended that the Court of Appeal was one of the courts contemplated in "Every court" mentioned in S. 258 ( 1) and that it was bound by the Constitution to deliver its judgment within 3 months of the conclusion of evidence and final addresses; that it was a creature of statute and could not act outside the statute creating it; that there was no provision in the Court of Appeal Act creating the court (see No.43 of 1976) or in the Court of Appeal Rules (see. S. I. 10 of 1981) empowering the court to reopen a case "suo motu after it had adjourned -for judgment. But, on a second thought and upon further reflection, Dr. Ume conceded that the court could reopen an appeal and hear further argument but that must be done within 3 months as stipulated in section 258 (1) . He argued that the power of the Court of Appeal relating to reserved judgments is no more than as contained in S. 11 of the Court of Appeal Act and Court has no power to act outside that section. He further contended that the Constitution was the organic law of the land which must be obeyed; that it was not an ordinary Law; that S.258 (1) uses the words" shall" and "not later than" and that these words are compulsive; therefore, the argument of counsel for the respondents (supported counsel appearing amicus curiae) on whether the "mandatory" or "directory" is untenable.
He finally submitted that the case of Atolagbe v. Bukanla, FCA/L/80/83 (unreported) cited by Chief Williams supported his argument. He, therefore, urged that this Court should set aside so-called judgment of the Court of Appeal and remit the appeal to the Court of Appeal for a new and different panel of the court to hear and determine the appeal within the 3 months stipulated by 8.258 of the Constitution.
PROF. KASUMU did not deal with S. 258 in his main brief in which he dealt with the nature of the estate or interest which Mr. Okeke possessed in the property consequent upon the power of attorney granted to him by the plaintiff/appellant and whether by reason of the
subsequent revocation-power-of-attorney which Mr. Okeke granted back to the appellant he had any estate left in the property which was capable of being passed on to the first respondent, Livinus Mbadugha, by the auction sale conducted by the second respondent, the Deputy Sheriff. Interesting, legally, as an exploration in that direction would have been, the nature of the issue before us did not permit Prof. Kasumu to address us on that aspect of the appeal. It was his reply brief which concerned 8.258 on which he based his address.
He took his argument on two limbs:
A. Whether S. 258 (1) applies to all courts or only courts of first instance which hear evidence?
B. Whether the section is mandatory or directory?
On the first limb (A above) he argued that S.258(1) is aimed at speedy determination of cases when facts of the cases are still fresh in the minds of trial judges. Therefore, he urged that the section should be interpreted as applying to trial courts only, and not to appellate courts. He contended that the mischief which 5.258(1) was aimed at was delay in the determination of cases and submitted that although reference is made in the section to "every court" the section goes further to limit it to courts which take evidence. He conceded that when there is an occasion for an appellate court to sit in its original jurisdiction and hear evidence (the Supreme Court for example, under S. 212 of the Constitution before the Military suspension in No.1 of 1984), 5.258(1) could then apply to the appellate court for the purpose of that exercise. Referring to AKPOR v. IGUORIGUO (1978) 2 S.C. 115 he stressed that the emphasis has been on the hearing and assessment of evidence.
If, he submitted, those words in the section, namely,
after the conclusion of evidence and final addresses
had been framed by the makers of the Constitution to read
after the conclusion of evidence or final addresses
there would then have been room for the section to be made applicable to both the courts which take evidence and to those which do not. On a clear reading of S. 258 one should give effect, he said, to the words "EVIDENCE" and "ADDRESSES as the key factors in that section.
Dealing with the second limb (B above), Prof. Kasumu argued that quite apart from the wording of the section, one should have refererence to the mischief the section is aimed at. One should not lose sight of the fact that the section also requires that duly authenticated copies of the decision be supplied to the parties the same day of the delivery of the decision. The practical difficulties in supplying the parties with the said authenticated copies the same day of the delivery of the judgment, make clear, he argued, that the section is directory only and not mandatory, and called in aid the opinion of the learned author of CRAIES ON STATUTE LAW, 7th ED. P. 250 to emphasize that point. He, therefore, finally submitted that if this Court agreed with his view that the section is directory and not mandatory, the Court of Appeal could hear further arguments after reserving judgment. He, however, agreed that this must be before the expiration of the 3 months period. CHIEF WILLIAMS (amicus curiae) prefaced his submissions by readily agreeing -that some judges though few in number were in the habit of "preserving" their judgments instead of "reserving them. The result is a long delay before judgments are delivered. Some delayed their judgments for as long as two years before delivery, resulting in the judge forgetting the facts and the impressionable nuances in the case. Chief Williams did not agree with Prof. Kasumu's argument that S. 258 (1) does not apply to the appeal courts.
His brief of argument - succinct, lucid and precise - is an epitome of his liberal (if not benevolent) interpretative approach to the subject. He pursues his argument from the standpoint that laws are made but laws are broken and there is no such thing as an unbreakable law. The effect of the breach or contravention of the law would vary according to the tenor of the law, and that it is not always, in our imperfect world, that the breach of a law invalidates all acts performed by a public authority on the strength of the law. Perhaps, better justice would be done to this part of his argument by a reproduction of a portion of the brief (page 2 paragraph 1.2) captioned: "Effect of Contravention of Statutes Generally". It reads:
"1. 2 Effect of Contravention of Statutes Generally: The provision of section 258(1) of the Constitution which is to be considered in this brief requires all courts established by the Constitution to deliver their judgments within a period of 3 months after evidence and final addresses. There can be no doubt that the provisions of the section are meant to be obeyed and and complied with. But there is no such thing as an unbreakable law. A law may be disobeyed or contravened for good reason or bad reason or for no reason. The question which the courts have to face and determine include the follow: What are the legal consequences or the breach or contravention of the law. Does the breach or contravention render what was done by the public authority or other person null and void or does it leave what done as aforesaid unimpaired or does it render it voidable at the instance or of a person interested? Is the person who contravened the law liable to a penalty? And so on and so forth. Lawyers have to consider such questions because, unfortunately, in our imperfect world, breaking or contravention of laws occur often enough and it would be unrealistic to ignore them. The authorities show that there are situations in which the law says that what was done by a public authority in breach of a statute was null and void. There are yet other situations in which the law says that what was done by a public authority in breach of a statute leaves the act performed unimpaired. In the latter case it is a misconception to suppose that the application of the rule which leaves the act of the public authority unimpaired tends to render the law useless and ineffective. It will be seen that in cases where the courts have reached this conclusion, an interpretation which would invalidate the act of the public authority concerned is apt to defeat the intention of the law maker or to lead to injustice or absurdity or to advance rather than suppress the mischief aimed at by the law in question. If the law maker or the Legislature feels strongly enough about possible contraventions, it can and often does impose a penalty as sanction. But where no penalty is imposed the stipulation remains nonetheless binding like any other law. Like any other law however, it is liable to be breached. In this case the Supreme Court is faced with the legal consequence of a breach or contravention of the statute which happens to impose no penalty."
He contended that if the true intention constitution was to invalidate decisions delivered more than three months after address of counsel, as argued by the appellant, then an interpretation of the provision which enables them to be easily by-passed is certainly not one calculated to promote that intention. He conceded that where a court, after final addressers of counsel, announced adjournment of the case, it would be reasonable to assume that the adjournment was for judgment even if the trial judge did not specifically say so. In the instant appeal, as shown by the additional proceedings later produced by appellant's counsel, the adjourmnet on 26th March 1981 was specifically for judgment.
Chief Williams, continuing his brief of argument, submitted that where there is a law prescribing the time within which a public duty is to be performed, the fundamental question is whether the law is mandatory so that the failure to comply with the law renders the performance null and void, or merely directory, so that failure to comply does not render performance null and void. In the case of a mandatory law, performance in terms is imperative, absolute and obligatory. But not so where the law is mandatory or directory". Placing reliance on the statement of principle of Lord Penzance in HOWARD And Others v. BODINGTON (1877) 2 P.D 203 at 210, Chief Williams submitted that in the case of a mandatory or directory enactment, although the provision may not have been complied with, the subsequent proceedings do not fail.
One of the tests ascertaining whether a law is mandatory or directory, he said, is to be found in paragraph 933 Volume 44 Halsbury's Laws of England, 4th Edition, on STATUTES where it states that the practice has been to construe provisions as no more than directory if they relate to the performance of a public duty, and the case is such that to hold acts done in neglect of them null and
void would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without at the same time promoting the main object of the legislature. He therefore, urged that this Court, in interpreting S.258 (1) of the Constitution, should adopt this approach, for the very reason that the materiality of the 3 months stipulated in S. 258 (1) relates to the pronouncement or announcement by courts of law of their decision in cases which come before them, and that although it is desirable that courts give their decisions as quickly as possible, yet material that the courts give correct decisions than that they give decisions within prescribed times.
If in a case, for example, a recondite point of is involved and a decision on that is pending before the
Supreme Court, he argued, common sense would dictate that it is better to await the judgment of the Supreme Court before a lower court decides the point even if by so doing there is a contravention of S. 258 of the Constitution. Given an option between the right of the parties to a correct judgment according to law on the one hand, and their right to have that judgment delivered within the prescribed time on the other, public interest dictates, he asserted, that the option must be exercised in favour of correct judgment according to law. By opting for a correct judgment according to law, he said, no substantial rights of either party would have been violated since, he submitted, the ultimate object of the law is to secure for the parties a correct judgment according to law.
He, therefore, strongly urged this court to lean towards the interpretation which would construe S. 258 (1) of the Construction as merely directory, especially so as the second arm the said S.258 (1) requires the court, in addition to the delivery of the judgment, to furnish parties to the case or matter determined with duly authenticated copies of the decision on the date of the delivery thereof. Although they were against his argument, Chief Williams quite properly referred to the decisions of the Court of Appeal in SUFIANU And Others v. ANIMASHAUN And Others FCA/L/80/82 delivered on 21st March 1983 and ATOLAGBE v. BUKANLA (supra) delivered on 8th February 1984.
In his oral argument, in amplification of his brief, Chief Williams contended that it must always be remembered that a legislature is entitled to make a law in the way, that it wants. When it wants to make a law of the nature of S. 258 (1) it decides on whether or not it should attach a penalty. When it attaches no penalty, contravention, though actionable, does not nullify the act. S.258 (1), he stated, was made for the judges of the superior courts. A contravention of its provisions would be an infringement by the particular judge which, possibly, could rank as a "misconduct" within the meaning of S. 258 of the Constitution for a judge to "perpetually" flout the provisions. He referred to the CONCEPT OF LAW, 1 96 1 Ed. at p. 34. by Professor Hart, and submitted that the Constitution must be read as a whole. There is a Judicial Service Commission among whose duties is to discipline judges for "misconduct".
He finally referred to S.33 (1) and (4) of the Constitution which confers rights on litigants for a determination of their cases "within a reasonable time"; THE PRESIDENTIAL CONSTITUTION OF NIGERIA by Professor Nwabueze, and submitted that S.258(1) of the Constitution, which deals with judges, when read together with S.33 all go to point to the fact that litigants are entitled to have their matters decided by the courts as expeditiously as possible. What is "reasonable time", he stated, depends on the circumstances of each case.
The decision of the only issue in this appeal is, in my view, a very simple one once we return to basic principles and well settled canons of construction of statutes. The FIRST of these is that if there is nothing to modify, alter or qualify the language of a statute, it must be construed in the ordinary and natural meaning of the words and sentences used. The courts have adhered to this literal rule of interpretation since the 19th century as seen from the judgments of Jessel, M. R. in ATT.-GEN. v. MUTUAL TONTINE WESTMINSTER CHAMBERS ASSOCIATION LTD. (1876) 1 Ex. D 469 and Lord Fitzgerald in BRADLAUGH v. CLARKE (1883) 8 App. Cas. 354. The object of all interpretation is to discover the intention of the law makers which is deducible from the language used. Once the meaning is clear the courts are to give effect to it. The courts are not to defeat the plain meaning of an enactment by an introduction of their own words into the enactment as was done, wrongly, in D.E. OKUMAGBA v. W.G. EGBE (1965) 1 All N.L.R. 62 - a process of judicial legislation. The same goes for agreements between parties (see: ANIMASHAWUN v. ONWUTA OSUMA & 2 Ors. (1972) 1 All N.L.R. 363 at 372 in respect of which courts are to ascertain what the parties meant by the words they have used - an ascertainment in which, unless there is manifest ambiguity or repugnance in those words (see: R. v. TONBRIDGE OVERSEERS (1884) 13 Q.B.D. 339 at 342), they are to be given their ordinary meaning.
The salient words used by the legislature in the first part of S.258(1) of the 1979 Constitution are:
"Every court shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses ..."
"Month", according to section 18(1) of the Interpretation Act, 1964, No.1 of 1964 is defined as meaning a month reckoned according to the Gregorian calendar.
The SECOND canon of construction is that which is often referred to as the "Mischief Rule" which was formulated by the Barons of the Exchequer in 1584 in HEYDON'S CASE 3 Co. Rep. 7a at 7b as follows:
"that for the sure and true interpretation of all statutes in general (be they panel or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
(1st). What was the common law before the making of the Act.
(2nd). What was the mischief and defect for which the common law did not provide.
(3rd). What remedy the Parliament ha