In The Supreme Court of Nigeria
On Friday, the 13th day of July 2007
S.C. 289/2002
Between
Associated Discount House Limited Appellant
And
Amalgamated Trustees Limited ....... Respondent
Ruling of the Court
Delivered by
Francis Fedode Tabai J.S.C
This ruling is sequel to an application dated and filed on the 11/10/2006. The application seeks the following reliefs:
1. Setting aside the judgment of this honourable court delivered in this appeal on Friday 5th May 2006.
2. Rehearing of the appeal by a reconstituted panel of justices of this honourable court consisting of 7 (seven) honourable justices.
The grounds for the application are stated therein to be that:
(i) The appeal giving rise to the said judgment relates to a decision of the Court of Appeal in a civil matter on a question as to the interpretation and application of Section 251(l)(d) of the Constitution of the Federal Republic of Nigeria 1999 ("the 1999 Constitution.")
(ii) By virtue of Section 234 of the 1999 Constitution appeals requiring the interpretation and application of the constitution by this honourable court shall be heard by 7 (seven) justices of this Court.
(iii) The panel of the Supreme Court that heard this appeal on 6th February 2006 was made up of only 5(five) learned justices.
(iv) The honourable court was not properly constituted to hear the appeal and thus lacked the jurisdiction to do so or to deliver a judgment thereon.
(v) After hearing the appeal but prior to the delivery of judgment of this honourable court the respondent/applicant brought an application dated and filed on the 17th March 2006 seeking a rehearing of the appeal by a reconstituted 7(seven) man panel of learned justices of this honourable court.
(vi) The application referred to in paragraph 5 above was not heard before judgment was delivered and remains pending.
(vii) The delivery of the court's judgment without hearing the pending application amounted to a determination and refusal of the said application without granting the respondent a fair hearing or any hearing at all contrary to Section 36 of the 1999 Constitution.
(viii) The judgment of this honourable court delivered on 5th May 2006 is a nullity being one in which the appeal was heard without the fulfilment of a condition precedent to the exercise of jurisdiction and which also violates the principle of fair hearing.
(ix) This honourable court has the jurisdiction to set aside its own judgment where it is found to be a nullity.
(x) Jurisdiction being a sine qua non for the existence of the power to adjudicate can be raised at any time.
The application is supported by a 14 paragraph affidavit. In paragraph 4 thereof the applicant restated the three questions that called for determination in the appeal as follows:-
(i) The interpretation and application of Section 251(l)(d) with particular reference to the proviso to the said section, as to whether or not a dispute between a financial institution and its client is one over which the Federal High Court has exclusive jurisdiction.
(ii) Whether or not the proviso to Section 251(l) (d) of the 1999 Constitution which exempts disputes between a bank and its individual customers from the exclusive jurisdiction of the Federal High Court applies when the dispute is between a financial institution and its client.
(iii) Whether or not by Section 22(3) of the Federal High Court Act which purports to empower the High Court of a State to transfer a matter over which it has no jurisdiction to the Federal High Court is valid and subsisting as an existing law by the combined effect of Sections 4, 274 and 315 of the 1999 Constitution.
In compliance with the directives of this court, learned counsel for the parties submitted their written addresses which they adopted on 17/4/07 when the appeal was heard. The applicant's written address and the written address in reply to the respondent's address were prepared by the law firm of Babalakin & Co. and they were filed on 30/1/07 and 6/4/07 respectively. The address on behalf of the respondent was prepared by Ayo Ajayi of P.O. Fagbohungbe & Co. and same was deemed filed on 12/3/07. The applicant raised one issue for determination. It is:
Whether given the circumstances of this case the Supreme Court ought to set aside its judgment delivered on the 5th May 2006 and rehear the appeal?
And the only question raised by the Appellant/Respondent in its brief is:-
Whether or not the judgment delivered by the Supreme Court in this appeal on the 5th May 2006 should be set aside and the appeal re-heard?
The parties therefore agree on the only issue that calls for determination of this application.
Arguing the motion the Applicant cited a number of authorities on the inherent powers of this Court and other superior courts of record to set aside their own judgments and the circumstances that warrant such setting aside orders. The applicant referred to Sections 233(2) and 234 of the 1999 Constitution and submitted that the Supreme Court is only properly constituted to hear an appeal that entails the interpretation and/or application of the provisions of the constitution if it is constituted by a panel of 7 (seven) justices and that it was unconstitutional for the 5 (five) man panel to hear the appeal on 6/2/2006 and that the subsequent judgment of 5/5/2006 was for that reason null and void. On the competence of the court to set aside its own judgment on the ground of nullity reliance was placed on Odofin v Olabanji (1996) 3 N.W.L.R. (Part 435) 126 at 133. It was argued that the provisions of Sections 233(2) and 234(2)(b) of the 1999 Constitution are clear and unambiguous and urged that a literal interpretation be given to them. Reference was made to the word "shall" used in the proviso to Section 234 of the Constitution and submitted that as a general rule the word connotes a command and that it is imperative mandatory and admits of no discretion. In support of this submission the applicant relied on Bamaiyi v A.G. of the Federation (2001) 12 NWLR (Part 727) 468 at 497; Ogidee v The State (2005) 5 NWLR (Part 918) 286 at 327. Although it was conceded that the word "shall" may in some circumstances have a directory rather than mandatory connotation, it was submitted however that such connotation applied mostly in the interpretation of rules of court and not to statutory and constitutional provisions. Reliance was placed on Katto v Central Bank of Nigeria (1991) 9 NWLR (Part 214) 126 at 147. It was further argued that whether the word "shall" in a context is merely intended to be directory or obligatory depends on the particular context in which it is used. For this submission the applicant relied on Ishola v Ajiboye (1994) 6 N.W.L.R. (Part 352) 506. It was the further submission of the applicant that while the word "shall" in the first limb of Section 234 about 5(five) justices of the Supreme Court can be said to be intended to be directory, the word in the proviso for 7 (seven) justices is definitely intended to be mandatory and should be so construed. The applicant referred to the meaning ascribed to the word proviso in an enactment in NDIC v Okem (2004) 10 NWLR (Part 880) 184 and submitted that if the word "shall" in the proviso to Section 234 of the Constitution is construed to be merely directory the result will be the very antithesis of the object meant to be achieved in the provision. It was argued that if the word "shall" in the proviso in Section 236 were meant to be merely directory leaving room for discretion it would have been absolutely needless to insert it since same objective had already been met in the first limb of Section 234. According to the applicant, the gravamen of the appeal is the determination of whether a "financial institution" as used in Section 251(l)(d) of the 1999 Constitution is a bank and argued that no previous decision of this court has settled that issue. It was submitted therefore that this is an appropriate constitutional matter for a 7 (seven) man panel of this court.
The applicant further referred to what it regards as a set of conflicting decisions of this court and for the resolution of which conflict a seven man panel was necessary. The first is Omisade v Akande (1987) 2 NWLR (Part 55) 158 at 171 which, according to the applicant, suggests that State High Court may transfer a matter to the Federal High Court where it finds that it has no jurisdiction to entertain it. The other set is made up of Aluminium Manufacturing Co. (Nig) Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part 51) 475 at 488-489, Awoyele v Board of Customs & Excise (1990) 2 NWLR (Part 133) 490 and Fashakin Foods (Nig) Ltd v Shosanya (2006) 10 NWLR (Part 987) 126 at 147 which, according to the applicant decided that a State High Court has no power to transfer a matter to the Federal High Court. According to the applicant the judgment sought to be set aside has again decided that the State High Court has the power to transfer a matter to the Federal High Court. The applicant further referred to page 22 of the respondent's brief and the invitation therein for this court to depart from its decision in Omisade v Akande (1987) 2 NWLR (Part 55) and submitted that the said invitation, which was consistent with the usual practice of this court and the provisions of Order 6 Rule 5(4) of the rules of this court, necessitated a panel of 7 (seven) justices of the court, since it would be unusual for a panel of 5 (five) justices to review and possibly depart from its decision by a panel of 7 (seven) justices of this court. Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Part 109) 250 at 268 -275, 276-277 was cited in support of this submission.
On the issue of fair hearing the applicant referred to its application dated 17th March 2006 seeking a re-hearing of the appeal, and the decisions in Ndukauba v Kolomo (2005) 4 NWLR (Part 915) 411 at 429; Afro-Continental (Nigeria) Ltd & Anor v Co-operative Association of Professionals Inc. (2003) 5 NWLR (Part 813) 303 at 317-318, Magna Maritime Services Ltd v Oteju (2005) All FWLR (Part 270) 1995 2012, Cookey v Fombo (2005) 15 NWLR (Part 947) 182 at 201 and submitted that the subsequent judgment is a nullity. It was finally urged that the appeal be re-heard by a newly constituted panel of 7 (seven) justices.
On behalf of the appellant/respondent, the following arguments were submitted. The first submission is that at the time the appeal was heard Section 251(l)(d) of the 1999. Constitution had been interpreted over and over again by a full seven man panel of this court in Federal Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Part 591) 333 and Nigeria Deposit Insurance Corporation v Okem Enterprises Ltd (2004) 10 NWLR (Part 880) 107 and that in the circumstances it sufficed for five justices of this court to sit over the present appeal since there was nothing new in the provision to be interpreted. It was submitted that it is only when a ground of appeal raised questions about the interpretation of the constitution that is recondite or substantial that a full court may be required to pronounce upon such issues. In support of this submission the appellant/respondent referred to Bamaiyi v Attorney-general of the Federation (2001) 12 NWLR (Part 727) 468 and the decision in this appeal reported as Associated Discount House Ltd v Amalgamated Trustees Ltd (2006) 10 NWLR (Part 989) 635.
With specific reference to Section 234 of the 1999 Constitution it was the submission of the appellant/respondent that the interpretation urged by the respondent/applicant would make the provision unworkable, unrealistic and unwieldy. It was pointed out that the proviso to Section 234 refers to appeals brought under Section 233(2)(b) or (c) of the 1999 Constitution and argued that the respondent/applicant's arguments were only on Section 233(2)(b) but were conspicuously silent on Section 233(2)(c) which concerns the provisions of chapter IV of the 1999 Constitution. It was the appellant's view that if the construction urged by the applicant is accepted then this court would sit as a full court in practically every appeal since there is hardly any appeal that does not involve some complaints about fair hearing. Such a situation, it was argued, could not have been the intendment of the framers of the constitution and that the provision of Section 234 is permissive or directory and not mandatory. It was the further submission of the appellant/respondent that when this court is faced with two alternative interpretations of the constitution, the alternative that is consistent with the smooth running of the system should prevail. For this submission the appellant/respondent relied on Tukur v Govt. of Gongola State (1989) 4 NWLR (Part 117) 517 at 579.
The appellant/respondent proffered arguments to distinguish Ishola v Ajiboye (1994) 6 NWLR (Part 352) 506 from the present case and submitted that the principle in that case is not applicable in this case, or at best it is only an obiter dictum. On the submission of the respondent/applicant about there being a conflict in the decisions of this court in Omisade v Akande (supra) Aluminium Manufacturing Company v Nigerian Ports Authority (supra), Awoyele v Board of Customs and Excise (supra), Fashakin Foods (Nig) Ltd v Shosanya (supra) and this case Associated Discount House Ltd v Amalgamated Trustees Ltd (2006) 10 NWLR (Part 989) 635, the submission of the appellant/respondent was that there was no such conflict. It was further submitted that the constitutionality or otherwise of Section 22(3) of the Federal High Court Act is not an issue in the application. On the invitation of the respondent/applicant at page 22 of its (respondent's) brief for this court to depart from its previous decision in F.M.B.N. v N.D.I.C. (supra) and Omisade v Akande (supra) it was argued, that such invitation was not made one of the grounds either in the application for hearing the appeal dated 16/3/2006 or in the present application of 11/10/2006.
On the issue of fair hearing it was the submission of the appellant/respondent that the failure to hear the motion of 16/3/2006 did not occasion any miscarriage of justice particularly having regard to the outcome of the appeal. The appellant/respondent gave details of the various applications filed by the respondent/applicant and opined that it was a ploy by the applicant for delay and has actually occasioned a delay for about nine years and urged that the application be dismissed.
In its reply brief the respondent/applicant referred to the appellant's brief of argument in the substantive appeal filed on 1/4/2003, its request therein to interpret the word "bank" in Section 251(l)(d) of the 1999 Constitution and submitted that a full court ought to have heard the appeal. It was submitted that the question of whether the word "bank" in Section 251(l)(d) of the 1999 Constitution should be interpreted to include a financial house had not been decided in either FMBN v NDIC or NDIC v Okem.
The respondent/applicant further referred to Section 233(2) and 234 (b) and (c). Bamaiyi v A.G. of the Federation (supra) Governor of Kwara State v Ojibaka (2007) MJSC vol. I page 10 and submitted that the proviso to Section 234 admits of no qualification as to the type of appeals brought under Section 233(2)(b) or (c) and that Section 233(2)(c) is relevant and that the use of the word "shall" in the proviso must be given its mandatory intention.
With respect to fair hearing, it was the further submission of the respondent/applicant that the lack of fair hearing cannot be waived and that the failure to hear the application of 17/3/2006 rendered the judgment of 5/5/2006 null and void irrespective of whatever the result of the hearing would have been. Reliance was placed on Mobil Producting (Nig) Un Ltd & Anor v Minikpo & Ors (2003) 18 NWLR (Part 852) 346 at 413; State v Onagoruwa NWLR (Part 221) 56 ; Adigun v A.G. Oyo State (1987) 1 NWLR (Part 53) 678 at 709 and 721, Adeyemi v Ike-Oluwa & Sons (1993 ) NWLR (Part 309) 27 at 40 and Amadi v Thomas Aplin & Co. Ltd (1972) 4 SC 228.
I have considered the application, the supporting affidavit together with the various documents attached thereto and the submissions of counsel for the parties. Let me first dispose of an issue in respect of which counsel for the parties proffered considerably detailed submissions. The issue pertains to whether there exists a conflict in the decisions of this court in Omisade v Akande (supra), Aluminium Manufacturing Co. v Nigeria Ports Authority (supra), Awoleye v Board of Customs and Excise (supra), Fashakin Foods Nig. Ltd v Shosanya (supra) and this case Associated Discount House Ltd v Amalgamated Trustees Ltd (supra) and if so, whether such a conflict automatically necessitated a panel of seven (7) justices of this court to hear the appeal.
Firstly, I agree with the respondent/applicant that there exists a conflict in the decisions of this court in Omisade v Akande (supra) on the one hand and Aluminium Manufacturing Co. (Nig) Ltd v Nigerian Ports Authority, Awoyele v Board of Costoms & Excise and Fashakin Foods (Nig) Ltd v Shosanya & Anor. In Omisade v Akande (1987) 2 NWLR (Part 55) 158; (1987) 1 NSCC 486 decided on 10/4/87 this court held that a State High Court has, by reason of the provisions of Section 22(3) of the Federal Revenue Court (Amendment) Act 1975, the power to transfer a case over which it has no jurisdiction to the Federal High Court and invoking the provisions of Section 22 of the Supreme Court Act, ordered transfer of the case to the Federal Revenue Court. It is to be noted that there is no indication in the report that the attention of this court was drawn to its earlier decisions on 27/2/87 in Aluminium Manufacturing Co (Nig) Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part 51) 475; (1987) 1 N.S.C.C. 224; In Aluminium Manufacturing Co. (Nig) Ltd v N.P.A. (supra), Awoleye v Board of Customs & Excise (1990) 2 NWLR (Part 133) 490 and Fashakin Foods (Nig) Ltd v Shosanya (2006) 10 NWLR (Part 987) 126 this court held that a State High Court has no power of transfer of a case over which it has no jurisdiction to the Federal High Court.
But the matter does not end there. The question is was the resolution of this conflict as to the authority of a State High Court to transfer a case over which it has no jurisdiction to the Federal High Court relevant in the determination of the appeal in this case? In other words, was the resolution of that conflict an issue in the appeal that was decided on 5/5/2006? It is settled law that parties are bound by the case they presented to the court and the issues raised thereby for trial. Similarly the court is bound to limit itself to the case presented and the issues raised by the parties. And none of the parties is allowed to make a new case either at the court of trial or on appeal without amending the originating process. See Akinfolarin v Akinola (1994) 3 NWLR (Part 335) 659; National Investment and Property Co. Ltd v Thompson Organisation Ltd (1969) 1 ALL NLR 138; Onyia v Onyia (1989) 1 NWLR (Part 99) 514; Enang v Adu (1981) 11 -12 SC 25 at 36.
In the instant case the originating process which culminated in the appeal that was decided on 5/5/2006 and which decision is sought to be set aside is the notice of preliminary objection dated 1/7/99 but filed on 2/7/99 copied at page 10 of the record. The relief sought therein states:
That this honourable court lacks jurisdiction to entertain the matter and that the matter should be struck out with substantial costs in favour of the defendant/applicant herein accordingly, the same being a gross abuse of the court process.
Thus the defendant/respondent/applicant simply sought a striking out order for the trial court's alleged lack of jurisdiction. There was no prayer for transfer of the case back to the Federal High Court from where the suit had originated. It is not surprising therefore that in the ruling of the learned trial judge K.O. Alogba J of 12/1/2001 there was no pronouncement made on the question of whether the Lagos State High Court had power to transfer a matter in which it has no jurisdiction to the Federal High Court. And both in the grounds of appeal to the court below and the issues formulated there from none of the parties raised that issue.
In its judgment on 16/9/2002 however, the court below in the concluding paragraph at pages 82-83 of the record apparently while contemplating a transfer of the suit to the Federal High Court raised the issue suo motu and considered same. There is nothing on the record to show that the parties were heard on the issue. And in the appeal before this court both parties, apparently taking a cue from the court below, raised the issue in their briefs of argument. In its judgment on 5/5/2006 this court considered the issue and ruled, correctly in my view, that the issue was not relevant to the determination of the appeal. It nevertheless expressed the opinion that the High Court of a State can, under the provisions of Section 22(3) of the Federal High Court Act, transfer a case in respect of which it has no jurisdiction to the Federal High Court. The opinion was clearly the court's passing remark. It was clearly an obiter dictum.
At page 649 of the report, the court, per Pats-Acholonu J.S.C, stated:-
... I believe that where a provision in a statute is liable to be construed either in the positive or in the negative form or connotation, then it is definitely more beneficial to adopt the interpretation that is more in tune with public will and benefit. In appropriate cases it is my view that the High Court can make an order of transfer but that is not relevant in the case here.
I agree with the underlining above that the issue of whether the Lagos State High Court has the power to transfer a case to the Federal High Court was not relevant to the determination of the single issue of jurisdiction in the appeal, same not having been raised in the originating preliminary objection filed at the Lagos State High Court on 2/7/99. A court of law will not engage itself in adjudicating on an academic or hypothetical question simply because counsel for the parties have raised it in their addresses. See Akinfolarin v Akinola (supra) and Dike v Nzeka (1986) 4 NWLR (Part 34). For the foregoing considerations therefore I hold that the resolution of the conflict in the decisions of this court on the power of a State High Court to transfer a case to the Federal High Court was not relevant to the determination of the single issue of jurisdiction raised in the preliminary objection in the appeal. The issue is therefore also not necessary in this application and so its resolution in whichever way would be a mere academic exercise. I have no doubt that the issue of whether a State High Court has the power to transfer a case over which it has no jurisdiction to the Federal High Court ought to and should be resolved in an appropriate case, but definitely not in this case.
And for the same reasons contained in the foregoing considerations I hold also that the invitation by the respondent/applicant for this court to depart from Omisade v Akande was not relevant to the determination of the appeal, and equally not relevant in this application.
The main issue:
The only issue of whether or not it was mandatory for a seven man panel of this court to hear this appeal because it involves the interpretation and/or application of Section 251(l)(d) of the 1999 Constitution of the Federal Republic of Nigeria depends, in my view, wholly and entirely on the meaning to be accorded the provision of Section 234 of the same Constitution. Section 234 provides:
For the purpose of exercising any jurisdiction conferred upon it by this constitution of any law, the Supreme Court shall be duly constituted if it consists of not less than five justices of the Supreme Court.
Provided that where the Supreme Court is sitting to consider an appeal brought under Section 233(2) (b) or (c) of this Constitution, or to exercise its original jurisdiction in accordance with Section 232 of this Constitution, the court shall be constituted by seven justices.
And Section 233(2) (b) and (c) covered by the above proviso says:
233(2)
"An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:
(a) ..
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution.
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this constitution has been, is being or is likely to be contravened in relation to any person."
The substance of the argument of the respondent/applicant is that this appeal which involves the interpretation or application of Section 251(l)(d) of the Constitution falls within the matters contemplated in Section 233(2)(b) of the Constitution which in turn comes within the proviso to Section 234 of the Constitution mandatorily requiring a panel of seven justices and that the decision of 5/5/06 having been reached by a panel of five was unconstitutional, null and void. The submission of the appellant/respondent was that the use of the word "shall" notwithstanding the proviso was, in the context, merely directory and that the five man panel sufficed.
The bone of contention is whether the word "Shall" in the proviso conveys a mandatory or merely directory connotation. Learned senior counsel for the respondent/applicant conceded that the word "Shall" may, in some circumstances, have directory rather than mandatory connotation but submitted that such a connotation applies only to rules of court and not to constitutional or statutory provisions. He relied on Katto v C.B.N. (1991) 9 N.W.L.R. (Part 214) 126 at 147. With respect, I do not think that in Katto v C.B.N. this court made any distinction in the interpretation of the word "Shall" used in the rules of court on the one hand and statutes and the constitution on the other. Although the court was faced with the meaning of the word "Shall" in Order 3 Rule 2(1) of the Court of Appeal Rules, it merely restated the general principle in construing the word in statutes. At page 147 of the report this court, per Akpata J.S.C had this to say:
"It is true that by Order 3 Rules 2(1) an appellant "shall state also the exact nature of the relief sought." The use of the word "shall" tends to give the impression that it is mandatory or imperative to specify the exact nature of the relief sought. Generally the term "shall" is a word of command and donates obligation and gives no room to discretion. It imposes a duty. The term is however sometimes construed as merely permissive or directory to carry out the legislative intention, particularly in cases where its being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory it carries the same meaning as the word "May"
(emphasis mine)
The underlining above is only a re-emphasis of the generally accepted principle of interpretation of statute that there is no laid down rule as to whether the word "shall" used in a statute carries mandatory or merely directory connotation and that its real purport depends by and large on the particular context in which it is used. See also Patrick Anigala Okpala v The Director-general of National Commission for Museums & Monuments & Ors (1996) 4 N.W.L.R. (Part 444) 585. The learned senior counsel for the respondent/applicant also accepted this principle and relied on Alhaji Oloyede Ishola v Memude Ajibode (1994) 6 N.W.L.R. (Part 352) 506 where this court restated the above principle in ascribing meaning to the word "shall" on Section 238 of the 1979 Constitution. At page 598 the court per Iguh J.S.C said:
"I have given the ab