Osafile v Odi (SC 149/1987) [1990] NGSC 56 (3 May 1990)

Osafile v Odi (SC 149/1987) [1990] NGSC 56 (3 May 1990)

In The Supreme Court of Nigeria

On Friday, the 4th day of May, 1990

SC 149/1987

Between

Gbaniyi Osafile             .......                      Appellants

John Emeri

And

Paul Odi              .......                      Respondents

Okwumaso Nwajei

 

Judgement of the Court

Delivered by

Phillip Nnaemeka-Agu  

 

There are two separate appeals in this case each supported with its separate set of briefs. The first raises a somewhat novel issue as to the value, if at all, of a judgment which has been declared null and void. The second challenges the judgment of the Court of Appeal Benin Division on the re-hearing on the merits of the case. Because of the novelty and importance of the points raised in the first set of briefs, we decided to take that appeal first and, if our conclusions thereon still so warrant, to take the second appeal. In my statement of facts therefore I wish to try as much as possible to limit myself to those facts of the case which are sufficient to give meaning to the issues in contention in the first appeal.

 

The case itself started in 1969 in the High Court of Asaba Judicial Division of the Mid-Western State of Nigeria as suit No. AG/l/69. The claim was for a declaration of title to a piece or parcel of land known as and called Idumu-Ozoba situate and lying at Umunede. The plaintiffs also claimed for an injunction against the defendants as well as £200 damages for trespass said to have been committed in 1968. After a full hearing by Obi, J. he granted to the plaintiffs the declaration they sought, awarded N300.00 for trespass against the defendants and, subject to the liberty of any of the defendants having any crops on the land in dispute to reap them, permanent injunction against them. From that judgment which was delivered on the 29th of July, 1980 the case has had a chequered career.

 

In the first appeal to the (Federal) Court of Appeal, Benin City, the judgment of the learned trial Judge was confirmed. On the defendants' further appeal to this court, the court in the now celebrated case of Odi v. Osafile (1985)1 N.W.L.R. (Pt. 1)17 declared the judgment of the Court of Appeal null and void on the ground that it was delivered more than 3 months limitation of time within which to deliver such a judgment under Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979. The case was remitted to the Court of Appeal for hearing de novo before another panel. I should mention that the first appeal before the Court of Appeal was heard and determined by that court composed of Omo-Ebo, Agbaje and Okagbue, JJ.C.A. The second hearing was however, by the Court of Appeal, coram Ikwechegh, Mustapher and Ajose-Adeogun, JJ.C.A. This latter panel reached a conclusion different from that of the earlier panel: they allowed the defendants;' appeal, set aside the judgment of the High Court and dismissed the plaintiffs' claim.

 

Now, how did this particular appeal arise? The learned counsel for the respondents before the Court of Appeal at the second hearing, who are the appellants now before this court in several portions of the respondents' brief gave notice that they would rely on portions of the nullified judmgent of the Court of Appeal. Because of the materiality of both the form and contents of such notice in this appeal, I shall set them out here. At p.2 in paragraph 1.2 of the said brief it was stated: -

 

The respondents intend wherever necessary to invite this Hon. Court to adopt its opinion given on the 10th day of March, 1983 with respect to any relevant issue.

 

I may observe that no particulars of where such relevant issues arose or of the previous opinion of the court were given. Also at p.4 of the said brief it was stated: -

 

It is clear that the two villages of Umenede which were represented as plaintiffs in the suit herewith are not the two villages of Umenede which were represented as defendants in W/37/52. The respondents adopt the reasoning of the Court of Appeal in the judgment delivered on the l0th day of March, 1983 at pp.5-13. This Honourable Court is urged to adopt the opinion.

 

On the issue as to whether the appellants were represented in suit No. W/37/52, the submission of counsel in the respondents' brief again ended thus: -

 

Again the respondents notify this Honourable Court to adopt the reasoning at pp.5-13 of the decision given during hearing on the 10th day of March, 1983.

 

Similarly notices were given in similar words with respect to the subject-matter at p.5 para. 3.4. Then at p.8 para. 6.3 on the "applicable law" the brief stated: -

 

See the case of Okoh v. Olotun & Ors 20 N.L.R. 123 at p.125, and the opinion of this Honourable Court at pp. 11-12 of the judgment delivered on the 10th day of March, 1983.

 

I may emphasize at this stage that no certified true copy of the earlier judgment of the Court of Appeal which had been nullified by this court was produced before the Court of Appeal during the second hearing. No extracts of the opinions of the court to be relied upon were exhibited or produced in any way. There were only page and line references to such opinions at places. So the present respondents in their "Appellants' Reply Brief" dated 15th day of May, 1986 raised a preliminary objection to the way and manner these opinions of the Court of Appeal in the nullified judgment were incorporated into the respondents' brief. The objection was in these words: -

 

2.    PRELIMINARY OBJECTION

 

2.1    TAKE NOTICE that the appellants will, pursuant to Order 3 Rule 15 of the Court of Appeal Rules 1981 as amended in 1984, raise by way of preliminary objection the following:-That the following portions of the respondents' brief be deleted.

That is: -

 

(a)    Page 2 paragraph 1.2.

 

(b)    Page 4 Lines 4-7 from the words: - "The respondents adopt. . . to adopt the opinion."

 

(c)    Page 4 paragraph 3.2 Lines 5-8 from the words: -"Again the respondents ...l0th day of March, 1983."

 

(d)    Page 5 paragraph 3.4 Lines 11-13 from the words: -"The respondents further. .10th day of March,1983."

 

(e)    Page 5 paragraph 3.4 Lines 24-25 from the words: -"The respondents finally . . . pages 25 to 27."

 

(f)    Page 8 paragraph 6.3 Lines 7-8 from the words: -"and the opinion. . .10th day of March, 1983."

 

AND TAKE NOTICE that the ground upon which the objection is based is that the judgment relied upon by the respondents in the said portions had been set aside by the Supreme Court in Paul Odi & Anor. v. Gbaniyi Osafile reported in (1985)1 N.W.L.R. (Pt. 1)17 and therefore is a nullity and is of no effect whatsoever.

 

The appellants, now respondents, submitted that when a judgment is set aside on appeal, it is a nullity. It is of no effect whatsoever. It is non-existent. It is as if it had never been given. It therefore cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise. The following cases were cited in support: -

 

Akpene v. Bardays Bank (19077)1 S.C. 47 and 59;

 

N.H.D.S. v. Mumuni (1977) 2 S.C. 57 at pp.85-86;

 

Peenok Ltd. v. Hotel Presidential Ltd. (1982)12 S.C. I at pp. 100-l0l;

 

Uttah v. I. B. Ltd. (1974) 2 S.C. 7 at p.10;

 

Animashan v. Osuma (1972) 4 S.C. 200 at p.212.

 

Learned counsel for the respondents, that is the present appellants also filed what they called "Respondents Reply/Objection to Appellants Preliminary Objection L Objection to Preliminary Objection." It was dated 20th May, 1986. In a nutshell, he submitted that whether or not the court can make use of a nullified judgment in the determination of the appeal was a point of substantive law and not procedural law and relates to the merit of the appeal. So, it was not a matter for preliminary objection as the respondents (i.e. the present appellants) had not breached any rule of procedure. To argue that a nullified judgment does not exist would lead to absurdities, as such judgments are only a nullity in law and not in fact. It was finally submitted that the opinion, which the court expressed in the said judgment, was not necessarily nullified: it was the legal effect of the judgment that was nullified.

 

It does not appear from the record that the matter was pursued separately in oral argument before the court of Appeal. But Ajose-Adeogun, J.C.A. who delivered the lead judgment in court and with whose opinion Ikwechegh and Musdapher, JJC.A. concurred, after quoting the opinion of Swanwick, J in the English case of Ealing London Borough Council v. Race Relations Board & Anor. (1971)1 Q.B. 309 at p.312 said:-

 

Following the above submission, respondents' counsel declared at page 2 of his brief that he intended "wherever necessary to invite this Honourable court to adopt its opinion given on the 10th day of March, 1983 with respect to any relevant issue." This disturbing intention of counsel was indeed carried out in some portions of his argument in the respondents' brief (pages 4, 5, 7, 8) especially where he prayed in aid certain pages in the past judgment of this court which had already been declared by the Supreme Court to be a nullity. So, it is understandable when the appellants, in their reply brief, raised objection to the said portions in the respondents' brief which referred to the already nullified judgment.

 

The aforesaid attempt by respondents' counsel to influence this court, consisting of a different panel of Justices, by the previous but nullified conclusions-even though described as opinions-of its predecessors in respect of the same appeal is, in my view, a novel and an improper one. As rightly submitted by learned Counsel for the appellants a judgment set aside as a nullity ceases to have any effect whatsoever, for it is non-existent and as if it had never been given. I therefore agree with the conclusion of appellants' counsel that such judgment "cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise.'' Reference was specially made to the cases of Akpene v. Barclays Bank (1977)1 S.C. 47 at 59 where the Supreme Court adopted the view of Lord Denning in Macfoy v. United African Company Ltd. (1961) 3 W.L.R. (P.C.) 1405 at 1409, to the effect that: "You cannot put something on nothing and expect it to stay there. It will collapse."

 

I have found it necessary to deal right now with the above-mentioned attempt of respondents' counsel to relate the present appeal to conclusions, views or opinions already taken in the previous nullified appeal in the same case and the objection of appellants' counsel to the said attempt. This is more so, not only because both parties raised the issues in their respective briefs but also to avoid any possible belief that the present appeal is being tele-guided and therefore prejudiced by the previous but already nullified judgment of this Court on the same appeal.

 

Consequently, I do not propose to read the same judgment, let alone considering or, even worse, adopting any opinion, view or conclusion therein as being suggested by respondents' counsel. The duty of the court is to consider afresh the present appeal on the merits of each party's case of proceedings and on the merits of the arguments contained in the new briefs, minus the afore-said offensive portions.

 

It is this opinion by the Court of Appeal that is crux of the present appeal.

 

The learned Senior Advocate of Nigeria for the appellants who filed one ground of appeal, with particulars on the points formulated an issue for determination in these words: -

 

Is the court below correct in refusing to read or consider its earlier opinion which was declared a nullity by the Supreme Court for the purpose of determining the relevant issues in this appeal?

 

He also formulated a subsidiary issue in these words: -

 

If the answer to the main question is in the negative, what order should this court make in the circumstances?

 

Counsel on both sides filed their briefs of arguments and addressed us orally. The learned counsel for the appellants, Chief Williams, S.A.N. submitted that when a judgment or order is declared or adjudged to be a nullity, it only means it is devoid of any legal consequences. So it cannot be enforced by the party in whose favour it was given or made. But that does not mean that the judgment or order is non-existent. Nullity is not equivalent to nothing. In support he cited the case of Kpema v. State (1986)1 N.W.L.R. (Pt. 17) 396 at 408. Also Peenok investment Ltd v. Hotel Presidential Ltd. (1983) 4 N.C.L.R. 122 at p.163. He submitted that although such a judgment has no legal consequences it exists as a fact and can be relied upon as an opinion nust as any other opinion. His main targets of attack were on the statement of the Court of Appeal that such a judgment is "non existent" and "cannot constitute an opinion of the court that gave it." In submitting that such a judgment which has been nullified may be regarded as the opinion of the Judge who delivered it, he relied on the dictum of Swanwick, J.in Ealing London Borough Council v. Race Relations Boards (1971)1 Q.B. 309 at p.312; also Forfie v. Seifah (1958) A.C. 59. He further submitted that the clear refusal of the Court of Appeal to consider the appellants' case on the basis of the previous opinion of the same court at an earlier hearing which they adopted as part of their case in the Court of Appeal was a misdirection which deprived the appellants of their constitutional right to fair hearing. He cited: - Adigun v. Attorney-General (1987)1 N.W.L.R. (Pt. 53) 678. He therefore urged the court to allow the appeal and either remit the case to the Court of Appeal for a proper hearing and consideration or hear the appeal itself.

 

In his own submission, learned counsel for the respondents, Mr. Oyetibo, after drawing the attention of this court to the dictionary meanings of the word "opinion", submitted that an opinion must be predicated on something. But a judgment declared a nullity, is of no effect whatsoever. It is as if it had never been given, and so cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise. In support he relied upon the opinion of this court in Fadiora v. Gbadebo (1978) 3 S.C. 219 at pp.235-239 and the several cases cited therein, including: -

 

Gipps v. Gipps & Hume. (1844)11 H.L. Cas.1;

 

Roe v. RA. Naylor Ltd. (1916) 21 C.L.R. 509

 

Also: -

 

Venn v. Tedesco, (1926) 2 K.B. 227 and

 

Smith v. Stroud, (1926) 42 T.L.R. 372 Akpene v. Barclays Bank, (1977)1 S.C. 47 at p.59 and

 

Kajubo v. The State, (1988)1 N.W.L.R. (Pt. 73) 721 at pp. 732-733.

 

Counsel also submitted that in any event, the opinion in the previous decision which was being relied upon was not before the Court of Appeal at the second hearing. The copy of the proceeding was not exhibited; portions of the nullified judgment being relief upon as opinion were not extracted and exhibited in the motion papers;' only page and line references of the opinions which might have existed only in the Registry of the court were mentioned in the motion paper. The court could not take notice of the proceedings before another panel different from the one that heard it, he submitted.

 

In his further reply, Chief Williams submitted that as the reason given by Ajose-Adeogun, J.C.A. for not looking at the previous judgment and the opinions therein which were being relief upon was not that they were not before him, it cannot be relied upon in this court, there being no respondents' notice. In any event; the previous judgment was in the Registry of the court: every court will take judicial notice of its record.

 

I belief it is useful to begin my consideration of the main issue for determination in this appeal by advising myself that a judgment in a civil case is made up more or less of five distinct parts. These are the introduction of the issue in controversy between the parties, the cases of either side to the litigation as revealed on the pleadings, the evidence called by either side in support of its case, the resolution of the issues of fact and of law put forward by each party, and the court's conclusions based on the resolution of the issues and the claims before the Court. It is only in the resolution of issues and the conclusions that the "opinion" of the court as I understand it to have been used in this appeal is relevant. I must not, I believe, confuse it with the meaning attached to the word in England where it refers to the speech or a whole judgment of a Law Lord delivered in the Rouse of Lords, or in the United States where it refers to the entire judgment of a superior court. It is in the context of the use of the word with reference to the United States and House of Lords' decision that Black's Law Dictionary (5th Edn.) at p.985 defined "opinion" as-

 

The statement by a Judge or Court of the decision reached in regard to a cause tried or argued before them expounding the law as applied to the case and detailing the reasons upon which the judgment is based.

 

This equates an "opinion" to the entire decision, which would include other parts of a judgment. But clearly the appellants are not saying that the Court of Appeal on the second hearing should have simply rubber-stamped and handed down again the previous decision of that court differently constituted. A more relevant definition of the word "opinion" in the sense it is used in this appeal is to be found in Words and Phrases Permanent Edition Vol. 29A at pp. 495-496 where "opinion" was defined thus: "An 'opinion' of the court is a statement by the court of its reasons for its findings, conclusions, or judgment.

 

I adopt this, and only add that it also includes not only the reasons but also such findings or conclusions in such a judgment. So, an "opinion" is the reasoning and conclusion of a Judge on the issue or issues in contention before him. It is in this context that I shall consider the real points raised by this appeal.

 

Now, it is common ground that a judgment nullified is devoid of any legal effect. It cannot be relied upon for a plea of estoppel per rem judicatam. This court said that much in the case of Fadiora V. Gbadebo (1978) 3 S.C. 219 at pp. 235-236 where my Lords, Fatayi-Williams, Idigbe and Obaseki, JJ.S.C. stated:-

 

Put in another form the question is: what exactly is the implication and effect of an unconditional or unqualified order for trial de novo by the Court of Appeal of a case on appeal before that court? We think that in trials de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the Judges' findings, at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties before it on their pleadings. This is the reason why it is a fundamental principle of the doctrine of res judicata that "no finding of the court or of a jury which has proved abortive, a new trial having been directed, will give rise to a valid plea of estoppel"; and over the years this principle has been allowed by a number of important decisions, and we will mention a few in chronological order and also refer to important observations in some of them.

 

This deals with the legal effect of a nullified judgment where a retrial has been ordered. So do many cases cited in argument or referred to by the learned counsel for the respondent. The case of Gipps v. Gipps Hume (1861-73) All E.R. Rep. 138 dealt with the question whether the consent of a jury which had been dispensed with on a trail of a petition for divorce would still subsist on an order of retrial. It had nothing to do with any opinion on any issue in the case. The case of Roe v. Naylor Ltd. (1918)87 L.J.K.B. 1598 was an unsuccessful attempt to use the finding in an abortive trial as evidence on a retrial. The same principle was involved in the Australian case of Gray v. Dalgety & Co. Ltd. (1916) 21 C.L.R. 509. Also, in Venn v. Tedesco (1926) 2 K.B. 227 the court resisted the attempt to prevent it from taking at a new trial a point which arose on the pleadings but which had not been taken in the first trial. The case of Akpene v. Barclays Bank (1977)1 S.C. 47 had nothing to do with a retrial, but with the validity of a mortgage deed. Utta v. Independence Breweries Ltd. (1974) 2 S.C. 7 at p. 10 deals with the effect of a judgment based on the report of a referee appointed by the illegal High Court of Biafra. So, all the cases cited or referred to by learned counsel for the respondents go to reinforce the point conceded by learned counsel for the appellants, id est, that a judgment which has been nullified is devoid of any legal effect. So, such a judgment cannot be relied upon for a plea of estoppel.

 

But none of the cases so far discussed attempted to answer the points of difference between counsel on both sides in this case. Does such a judgment exist as a fact or does its nullification, as it were, wipe it out of existence entirely? If it still exists, can it be relied upon as an opinion of the court that gave it? I must observe that in trying to answer these important questions, learned counsel for the respondents tried to take umbrage under the statement of Lord Denning in Macfoy v. United African Co. Ltd. (1961) 3 W.L.R. 1405 at p.1409, P.C. where he said:

 

Any purported exercise of any function being without any legal or Constitutional authority was null and void and of no effect. . ." If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.

 

With respects to the learned counsel for the respondents, it appears to me that the very eminent Lord Justice's aim in this much misquoted and misapplied dictum was again talking of the effect in law of a judgment being declared void. It is "automatically null and void without more ado" and every proceeding which is founded on it is also bad and incurably bad." His Lordship did not say that it ceases to exist as a fact. I agree with Chief Williams that there is a world of difference between saying that a judgment has no legal effect or consequences and saying that it is non-existent; between giving a judgment which is a nullity because, say, it was given without jurisdiction and saying that no judgment was given at all. The learned Justice of Appeal was, therefore, in error when he held that because the previous judgment of the Court of Appeal had been nullified by this court-for having been delivered more than three months of the conclusion of the final addresses, it follows that the judgment was non-existent. In my view, although, by its being declared a nullity, the judgment had no more any legal effect, it continued to exist de facto.

 

As for whether such a nullified judgment can be relied upon as the opinion of the court or Judge who delivered it, it is helpful to note that a judicial opinion may be either binding, persuasive, or merely obiter. An extra-judicial opinion may persuade a court, which may adopt it; or may fail to do so if the court considers the proportion of law, which it espouses as incorrect. When a judgment has been declared null and void, and so of no legal effect, it looses its binding and persuasive effective as a judicial opinion. But it exists and like the opinion of any other writer, may be adopted in argument or even accepted and adopted by a court in its judgment. It is, of course, true particularly in the appellate courts that the old practice whereby the opinion of a writer could be adopted in court only long after his death is no longer the vogue. We no longer insist upon the old rule that only the opinion of the illustrious dead could rule the living in our courts. If a contemporary jurist puts forward a convincing proposition on a recondite point of law on which there is no decided authority there is now nothing wrong with a court accepting and applying it, particularly in the top echelon of our judicial hierarchy. The eminent Lord Justices of the House of Lords recently bore testimony of the fact that this breeze of change is also blowing through the highest appellate courts in Britain:-see Lord Diplock in "A.L.G. - Judge's View" (91 L.Q.R. (1975) 457 at p.459); also Lord Reid:-"The Judge as Law Maker" p.22. So it cannot be a valid objection that the Judge who delivered the judgment is still alive. A clear suggestion that the effect of the nullification of the judgment is only to rob it of its legal effect and that in spite of its nullification it still exists as an opinion of the court that gave it is contained in the decision of Swanwick, J., in Ealing London Borough Council v. Race Relations Board & Anor. (1971)1 Q.B. 309 at p.312 where he said:-

 

I am however naturally anxious to save duplication of effort and legal costs; and I have, therefore, consented to listen to argument on both issues and to give my decision on both, whatever it may be, to the end that, if it should be determined by me or on appeal that this court has jurisdiction, my judgment on the substantive question should, if it stands, be binding on the county courts. If of course it should be determined by my unchallenged decision or on appeal that this court has no jurisdiction, my decision on the substantive point will amount to no more than an expression of opinion. (italics mine, for emphasis).

 

The Judicial Committee of the Privy Council put the matter even clearer when it stated in Kofi Foifie, Odikro of Marbanv v. Barima Kwabene Saifah Kenyasehene (1958) A.C. 59 at page 65 thus: -

 

To say that a judgment is a nullity is not to say that the judgment is not a judgment for any purpose, and in particular, that is it not a judgment within the meaning of the term in Ord. 41. Their Lordships are of opinion that the term in Ord. 41 means nothing more than an adjudication by a Judge upon rights of parties. If made without jurisdiction it would be ineffectual, but the effectiveness or otherwise of the judgment is not relevant to the question whether it is a judgment.

 

I entirely agree. A judgment delivered without jurisdiction or nullified for any other cause continues to exist as a judgment, although it will be ineffectual, invalid, or even unlawful. It is no longer in the eyes of the law an effective adjudication on the rights of the parties, or per se, in appropriate metaphor, a legal foundation upon which any lawful right could be hoisted; but it exists in point of fact. It remains the opinion of the court or Judge that delivered it, for what it is worth. The case of R. v. Almon (1765) W.N. 234 was never delivered; but the opinion in it has been relied upon in many cases.

 

As it is so, it is my considered opinion that such opinions expressed by a court in a judgment that has been nullified, if properly brought before another court, could be used, like any other opinion, say, in a text book. For this reason, there is force in the argument of Chief Williams when he submitted that by a court refusing to consider a party's argument adopting such an opinion in its brief simply because the party has adopted an opinion of a court in a judgment that has been nullified as having been given without jurisdiction could amount to a misdirection. Indeed, it could, in a proper case, be tantamount to refusing to consider the party's case-an infringement of the party's guaranteed right of fair hearing. Whether or not the opinion is right is quite an irrelevant consideration. For it is settled that a court is bound to consider every material aspect of a party's case, no matter its merit. But I must add that the opinion in the nullified judgment must be properly raised at the re-hearing.

 

This brings me to the manner in which reliance on the opinions of the Court of Appeal in the nullified judgment was raised in this case. As I have stated, the previous judgment was delivered by the Court of Appeal differently constituted. That previous judgment was not before the new panel in any way. No extracts of the opinions said to be relied upon were highlighted in the brief. The principles or legal propositions propounded in the said opinions were not even clearly set out. Only page and line references of them were made in the brief. Worse, it does not appear that the points were taken up in oral argument so as to have enabled counsel to, perhaps, draw the court's attention to the passages if they were available. So, the learned counsel for the respondents argued before us that even if the appellants could have relied upon portions of the judgment as expressions of opinions by the former panel of the Court of Appeal, the court could not have taken notice of that when the judgment was not exhibited to the motion paper or otherwise produced before the court on the rehearing.

 

I think I should first dispose of the submission of Chief Williams in his final reply, to wit: that this point was not the ground upon which the learned Justice of Appeal refused to look at the expressions of opinion contained in the nullified judgment. He simply stated that the judgment was non-existent. As, without a decision on the above point, the decision of this court on the substantive issue could be no more than an expression of a mere academic and hypothetical opinion-a course which this court has stated several times that it has neither the jurisdiction nor the intention to take-we decided to hear counsel on both sides on the point, even though it was a point which could have been properly raised under a respondents' notice. This course is of course permitted by the Rules (see, for example, Order 8 rule 3(6) of the Supreme Court Rules, 1985). Besides, our consideration of the point is necessary for the determination of the real question in controversy in the appeal within the meaning of Section 22 of the Supreme Court Act. Indeed it is envisaged by the subsidiary issue framed for the appellants in their brief. But let me emphasize that although such powers, no doubt, exist, they are such that this court does not want to make a habit of drawing therefrom constantly so that it does not give the wrong impression that it is taking sides in matters in controversy before it. A respondent's counsel should always make his own decision and file a respondent's notice whenever necessary, otherwise he may find that he cannot advance a certain line of argument. I am invoking the power in this case because it is necessary for my decision in the case and has been raised by the subsidiary issue and was fully argued. So, althoug

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