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, although I have held that the learned Justice of Appeal was in error to have held that he could not look at the earlier judgment of the Court of Appeal, which had been nullified by this court because it was non-existent, I should go further to consider whether the matter was in fact properly raised, that is: if he had directed himself correctly, would he have arrived at a different conclusion. This attitude is informed by the fact that his is now a well-known policy of this Court that it is not every slip of a lower court that will result in an appeal being allowed: it is only those mistakes that have been shown to have affected or influenced the decision appealed against that will result in the appeal being allowed: see on this - Onajobi v. Olanipekun (1985) 4 S.C. 156 at 163, also Jude Ezeoke & Ors. v. Moses Nwagho & Anor. (1988)1 N.W.L.R. (Pt. 72) 616 at p.626. Before I can consider whether it was rightly rejected, and what order to make I must first consider whether it was properly raised in the brief.
Then to the question: were the opinions contained in the nullified judgment properly raised before the Court of Appeal on the re-hearing? Or could the court have taken notice of them? Learned counsel for the appellant submitted that because the former judgment was part of the record of the Court of Appeal, notwithstanding that it was differently constituted, it was a matter of which the court at the re-hearing could have taken judicial notice. In effect, that the principle that a court can take notice of its own proceedings and records would apply when the sitting panels of the same court are different. Learned counsel for the respondent, on the other hand, submitted that as the Court of Appeal was differently constituted, it could not have taken notice of the earlier judgment in which none of the members of the second panel took part, as the judgment was not exhibited or relevant extracts thereof highlighted in the brief. Page and line references in the brief, of a judgment, which was not before the court at the re-hearing, are not enough. It must be appreciated that this case raised a much more difficult and fundamental issue than was raised before this court in the case of Obianwuna Ogbunyiya & Ors. v. Obi Okudo & Ors. (1979) 6-9 S.C. 32. In that case the issue was whether an official Gazette containing notice of the date and the fact of appointment of a Judge which was produced by counsel from the Bar and read by the court and counsel without formal admission in evidence could be taken notice of as proof of the facts contained therein. That court answered the question in the affirmative. In this case, it is whether the contents of a nullified judgment which was probably in the archives of the court, and which was never placed before the court and which the members of the court at a re-hearing were not shown to have ever had the opportunity of seeing, could be judicially noticed.
No doubt, as a general proposition, a court will take notice of its own proceedings and records and take notice of their contents: see Vol. 17 Halsbury's Laws of England (4th Edn.) para. 102 at p.74. But the real questions which are raised by the peculiar facts of this case are numerous. What is the meaning of its own records and proceedings? Does the expression include every document filed in the court's registry or lying in the archives of the court? Will it apply to a case in an appellate court which sits in panels and the particular record and proceeding were before an entirely different panel from the one expected to take judicial notice of it? Will the principle include judgments, which have been declared null and void, and so have no legal effects, that are not before the court?
In argument, we were not referred to any decided case that appeared to have answered the basic problem in the above questions. I shall therefore attempt to answer them inferentially from some decided cases and from general principles. In the case of Craven V. Smith (1869) L.R. 4 Exch. 146 which was referred to in argument, it is clear from a careful reading of the report that what the court was held to be entitled to look at was the lawful record of the same panel of the court in the same case. It cannot, therefore, be regarded as supporting a case like this in which the question is whether a separate panel can take notice of the nullified judgment of an earlier panel. Even though the courts in England took judicial notice of the law of England as administered in the Court of Chancery (for which see e.g. Sims v. Marryatt 17 Q.B. 281), yet the practice of that court was earlier proved by oral evidence before it would be noticed. Hence in Dicas v. Brougham Ltd M. & Rob, 309, Lord Eldon had to be called as a witness to prove that practice. In Tucker V. Inman 4 M & Gr 1049 an equity counsel was called for the same purpose. In Place V. Potts 8 Exch. 705 at the invitation of counsel, the court made its own inquiry and informed itself as to the jurisdiction of the Court of Admiralty. See also Williams V. Lloyd 1 M & Gr. 671. It seems to me from a view of all the decided cases that matters which can be judicially noticed fall into two broad classes. First: There are those which are so notorious that the court automatically takes notice of them, once it is invited to do so.
Secondly: There are others which, although judicially noticeable, the court will not do so until something is produced, though not formally tendered as evidence, in order to inform the court or refresh its memory on the matter before it notices it. Thus the court may be invited to, and does, inform itself as to a date (Tutton v. Darke (1860) 5 H & N 649; for a publication in a Gazette by the production of the Gazette (Ogbunyiya v. Okudo (supra). On this broad division of judicial notice, the courts have usually refused to take notice of matters falling within the second category when the material from which it can inform itself or refresh its memory is not produced by the party inviting it to take notice of the particular matter. In Omeron v. Dowick (1809)2 Camp. 44, Lord Ellenborough declined to take judicial notice of the King's proclamation because counsel failed or neglected to produce a copy of the Gazette in which it was published. In R. v. Holt (1793) 5 T.R. 446 the court held that articles of war of which it ws invited to take notice ought to have been produced. Also in Pilkington v. Cooke, 16 M & W. 615, the court refused to take judicial notice of when an order of the Judges, allowing a scale of fees to be taken by the sheriffs, was made. It appears to me from the decisions in the above cases that the courts will take notice without more of cases falling within the first category of matters that could be judicially noted, above; but will, in the case of the second insist on the appropriate material from which it can inform itself or refresh its memory being produced. I believe that the underlining assumption is that cases of the first category are matters of knowledge of which the Judge knows or is expected to know. He is not expected to know or remember off hand matters falling within the second category. But because of their very nature, the court can be informed of them or his memory be refreshed thereon; without the matter requiring to be proved by evidence.
In 1900 these principles of the common law became part of our received law, subject, of course, to such changes and modifications as might be introduced by local legislations. By Section 73 of the Evidence Act (introduced in No.46 of 1945) our law of evidence made provisions for judicial notice. Sub-section 1 enumerates thirteen matters of which "the court shall take judicial notice."
The list is not exhaustive. In paragraph (m)
the course of proceeding and all rules in force in the High Court of Justice in England and in the High Court of the States.
were mentioned. But then sub-sections (2) and (3) provide as follows: -
(2) In all cases in the preceding subsection and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.
(3) if the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so."
So, "judicial notice" remains in Nigeria what it is in England, that is to say: -
.facts, which a Judge can be called upon to receive and act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.
See: - Commonwealth Shipping Representative v. P. & O. Branch Services (1923) A.C. 191 at p. 212. Needless to say that it is for the party to lay the foundation and call upon the Judge in the appropriate manner to take judicial notice of the fact: the importance of this point in this appeal will become more obvious anon.
The point that I need to emphasize at this stage is that our law preserves the distinction between those facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection (3) of Section 73 of the Evidence Act, he may, when called upon to take judicial notice of the fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so. When the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take notice of the fact. The only difference is that under section 73(2), even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference.
It follows from what I have been saying that every matter entitled to be judicially noticed has its appropriate and necessary foundation without which it cannot be judicially noticed. It must be noted that judicial notice is an anomalous appendage in the law relating to proof. Some regard it as part of the law of evidence; but then it has not the trammel of the law of evidence, such as scrutiny under cross-examination, the rules of admissibility, and so on. Save in such cases as ascertainment of notorious custom and of the practice of the Court of Chancery, in which evidence may be required before judicially noticeable in the first instance, it has really nothing to do with the rules of evidence. What is necessary in the case of judicial notice is a proper foundation for that particular type of fact before it could be judicially noticed. That foundation may be common knowledge, common knowledge reinforced by such information material as the Judge may deem it necessary to consult under Section 73(2) of the Evidence Act, statute, the common law, and acquired knowledge under section 73(3) of the Act (See: -Nokes: The Limits of Judicial Notice - 74 L.Q.R. 59). As I have stated, judicial notice founded on common knowledge is founded on the Judge's actual knowledge, experience and memory as a member of society; sometimes however, he finds it necessary to refresh his memory by reference to records, books and reports. The material foundation of notice of a statute is the production of a copy of the statute; that of any official act is the production of the Official Gazette. Where the matter to be noticed is an acquired knowledge, the only foundation is the production of the book, document, or other material, which will enable the court to do so under section 73(3) of the Act. In my opinion such is the position in this case. The appellants were obliged to have produced in court a true copy of the judgment which had been nullified and which only could have made their page and line references meaningful. Then they should have called upon the court to take notice of it. At least they could have exhibited, verified extracts or portions of the judgment they wanted to rely upon as opinions. In saying so, I am of the view that once the judgment had been nullified, it could no longer be noticed as law, but as a fact. Being a fact, it could not enjoy any more notoriety than any other opinion in, say, a textbook lying in a shelf in the court's library.
It has been suggested that the court could have taken notice of portions of the judgment by virtue of the provision in Section 73(l)(m) of the Evidence Act. Now Section 73(1) of the Evidence Act enables the courts to take judicial notice of "the course of proceedings and all rules of practice the High Court of Justice in England and in the High Court of the States." What are the meanings of the expressions "the course of proceedings" and "all rules of practice" within the meaning of that section? Are the contents of the record of a nullified judgment part of the course of proceedings or the rules of practice of the court?
Now course simply signifies the line, direction, path, or way anything moves. So, "course of proceedings" of a court means the line, direction, path, or way the lis in course proceeds. This is, of course, in contradistinction to the content of the litigation or the evidence called in support of the case of either party thereto. On the other hand, the "practice" of a court ordinarily means the rules that make or guide the cursus curiae, and regulates procedure, within the precincts of the court. So, in the technical sense, rules of practice denote the mode of proceedings by which a legal right is determined and enforced, as distinguished from the law which gives or defines the right. See Lush, L.J. in Poyser v. Minors L.R. 7 Q.B.D. 325 at p. 333; Lever Brothers Ltd. v. Knede & Bagnall (1937) 2 K.B. 87; and Re Shoesmith (1938) 2 K.B. 637. It does not include the mode or material for the proof of that right. So, it appears to me that the point at issue in this aspect of the appeal is neither the course of proceeding nor the rule of practice of the Court of Appeal or the High Court. It is, rather, a rule of proof or of evidence. Whether the record and contents of a nullified judgment ought formally be produced in court or extract thereof be placed before the court before the opinions expressed therein could be countenanced; or whether the Court of Appeal could have taken notice of their existence and contents by the mere fact that the nullified judgment was probably in the archives of the court. In Attorney-General v. Silem L.R. 10 H.L. Cas. 704, it was held that S.26 of the Queens Remembrance Act, 1859, which empowered the Barons of Exchequer to frame rules for making "the process, practice and mode of pleading" on the revenue side of the court uniform with that of the plea side, did not give the Judges the power of entertaining appeals on revenue cases, as they assumed. It is always necessary to exercise powers conferred by an enabling statute within the four comers of the statute: see Australian cases of Tavcar v. Tavcar (1950) A.L.R. 260; White v. White (1947) A.L.R. 342. It therefore appears to me that the power, conferred by S.73(1) of the Evidence Act, for a court to take judicial notice of its course of proceedings and rules of practice cannot rightly be invoked to take judicial notice of the contents of a nullified judgment, which the members had not earlier had an opportunity of seeing. For, true, it existed as a fact, being devoid of any legal consequences, it was then like any other opinion, say, in a textbook. I do not think that anybody can suggest that such a textbook opinion should be judicially noticed.
The conclusion I have reached is that in theory, learned senior counsel for the appellants was right in his contention that the learned Judge was wrong to have stated that the appellants could not rely upon the opinions in the nullified judgment because on being set aside, it was non-existent. But because those opinions were not properly placed before the Court of Appeal at the re-hearing there was really nothing to take notice of. So, the appellants are right on the main issue that the learned Justices of Appeal were wrong to have said that they could not consider the opinions expressed in the nullified judgment because the judgment ceased to exist. But upon a proper direction the Court of Appeal would have dismissed the appeal on the subsidiary issue in that the proper materials were not placed before the court. I am entitled to make any order they would have made. I would therefore, dismiss the appeal. It is hereby dismissed with N500.00 costs against the appellants.
Judgment delivered by
Nnamani. J.S.C.
I had a preview of the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. and I entirely agree with his reasoning and conclusions.
For purpose of this concurring judgment, I shall adopt the statement of facts as set down in the lead judgment except such as I shall need for my comment.
The issue taken in this appeal is indeed a narrow one. As Chief Williams, S.A.N. has put it, the complaint of the appellants is that they did not receive a fair hearing at the hearing of their appeal at the Court of Appeal, Benin Division. The matter briefly arose from the order of this court that the appeal in the matter between the parties be reheard by another panel of the Court of Appeal. A former decision of another panel of Justices of the court from the same division had been declared null and void as the judgment violated the provisions of Section 258 of the 1979 Constitution of the Federal Republic of Nigeria. At the hearing before the new panel of Justices (Ilkwechegh, Musdapher and Ajose-Adeogun, JJ.C.A.), Chief Williams, S.A.N. learned counsel, to the appellants who had cited pages of the null judgment in the appellants' brief of argument sought to rely on the opinion of the Court of Appeal in the null judgment. In his lead judgment, Ajose-Adeogun, J.C.A., in rejecting this said: -
Respondents' Counsel declared at page 2 of this brief that he intends wherever necessary to invite this Honourable Court to adopt his 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 respondents' brief (pages, 4, 5, 7, 8) - specially when 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 . . . 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 nonexistent 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" . Consequently, I do not propose to read the said Judgment, let alone considering or, even worse, accepting any opinion, view or conclusion therein as being suggested by Respondents' counsel.
In submitting to this Court that the learned Justice of Appeal was wrong in shutting out such an opinion, Chief Williams drew a distinction between nullity and non-existence. He submitted that when a judgment is declared a nullity, it only means that such judgment cannot affect the legal rights of the parties-indeed that it has no legal consequences. It exists, however, in fact, he said. The judgment exists at least as a Document. He further submitted that if a judgment was declared a nullity, it could still be used by a lawyer for purposes of argument. He referred to the case of Forfie v. Seifah (1958) A.C. 59 at 67. In his submission, the refusal of the Court of Appeal to hear such argument in the respondents' address amounted to a denial of fair hearing. He referred to Obodo v. Olumu (1987) Vol.18, part 2 N.S.C.C. 824, 831; (1987) 3 N.W.L.R. (Pt. 59)111; Adigun v. Attorney-General Oyo State (1987) 2 N.W.L.R. (Pt. 56)197; (1987)18 part 1, N.S.C.C. 346.
In his own submission, Mr. Oyetibo for the respondents submitted that when a judgment is declared a nullity it has no legal consequences. It is as if it has never existed in law. In his view, it is in the eyes of the law "nothing." He submitted that it cannot constitute the opinion of the court that delivered it. He relied on Kajubo v. State (1988)1 N.W.L.R. (Pt. 73), 721, 732-733.
I do not think there is any dispute than when a judgment is declared a nullity, it has no legal consequences. Not only can it not affect the rights of the parties for it cannot be enforced, but it cannot be used for such things as estoppel or stare decisis. See Ealing London Borough Council v. Race Relations Board (1971)1 Q.B. 309, 312; Foifie v. Seifah (supra); Fadiora v. Gbadebo (1978)3 S.C. 219, 235-239; Gipps v. Gipps and Hume (1861-73) All E.R. Rep. 38; Venn v. Tedesco (1928) 2 K.B. 227.
But the fact that the judgment has been delivered is a fact which does not cease to exist. To that extent I am of the view that it is wrong to contend that a judgment declared a nullity ceases to exist in fact. Such a judgment exists, not as a judgment in the legally accepted sense, but at worst as a document containing some opinions. In my view, the first point that arose in the conclusion of the Court of Appeal can be dealt with quite simply. Once it is conceded that a judgment declared a nullity exists as a document, then it can be used in argument as any other document be it a book etc., can be used. To this extent, the learned Justice of the Court of Appeal was in error when he held that the judgment of the Court of Appeal declared a nullity ceased to have any existence and so could not be cited as the opinion of the court that delivered it.
But this is not the end of the matter, for in his further submission, Mr. Oyetibo urged the court to hold that the null judgment was not before the Court of Appeal as it was not brought as a document before it. Chief Williams in opposition to this further point urged this court not to accept this submission as the respondents did not file a respondent's notice to contend that the judgment of the Court of Appeal be upheld on other grounds. He also argued that this was not the ground on which Ajose-Adeogun, J.C.A. rejected the argument. For the reasons given by my learned brother in the lead judgment, I am also of the view that we ought to entertain this further argument. I am certain that our powers under Section 22 of the Supreme Court Act would entitle us to do so.
Now in examining this further point, it is necessary to reiterate that the nullified judgment was not tendered before the Court of Appeal; passages from that judgment were not quoted in the respondents' brief in the Court of Appeal. What was included in respondents' brief were pages of that judgment on which it was intended to rely. It is equally pertinent to mention that although the appellants in the Court of Appeal had filed a preliminary objection to those passages. This objection was not taken by the Court of Appeal. During argument before the Court of Appeal, learned counsel to the respondents there (Sofunde) did not refer to the passages in oral argument. See p. 187 of the Record. It is also important to mention that in reply to the further submission of Mr. Oyetibo, Chief Williams submitted that the null judgment was part of the records of the Court of Appeal and it was therefore before them.
I think it is fairly well settled and not a matter of argument that a court will take judicial notice of its records and proceedings. In respect of the valid judgments of a court of Record, the court will readily take judicial notice of its judgments reported and unreported. I would not draw any distinction between panels of the same court. A decision of one panel is a decision of the Court and each Panel will take judicial notice of it. In my view, it is only for convenience that published report of valid judgments of court or copies of its unreported judgments are brought before a court. They need not be, they could just be cited. The same in my view cannot be said to judgments of a court declared null. As stated earlier, such judgments exist not as judgments but as documents. They become documents as any other document in the Registry of the court. It would be most tedious to argue that the court could take judicial notice of every document in its registry. Section 73 of the Evidence Act deals with matters, which the court can take judicial notice of. As stated earlier, a judgment declared null exists in fact, it exists as a document in the Registry. In my view, if any party to proceedings desires to make use of such document, it has to be produced before the court. Section 73(3) of the Evidence Act provides that:-"If the Court is called upon by any person to take judicial notice of any facts, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so."
In the instant case, the null judgment (now a document albeit in the Court Registry) was not produced before the Court of Appeal and so was not before it.
It was for these reasons, and the more detailed reasons in the lead judgment, that I dismissed this appeal. I endorse all the orders made by my learned brother.
Judgement delivered by
Uwais. J.S.C.
I have had the advantage of reading in draft the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. I entirely agree with it and his conclusion that the appeal should be dismissed.
The fact that a judgment is declared null and void does not mean that the judgment is not in existence. It certainly exists but it does not have any legal consequence since it has been nullified and rendered nugatory by a competent court on appeal, namely, this court. The nullified judgment remains extant but merely as a piece of document with no legal effect at all. The Court of Appeal (per Ajose-Adeogun, J.C.A.) was therefore in error when it held as underlined as follows: -
As rightly submitted by learned counsel for the appellants (now respondents) 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. (italics mine).
Having held that the judgment though declared null and void continues to exist as a document, the next issue is what use can the document be made of by a court in later proceedings. In other words could the Court of Appeal have referred to the opinions cited in the document in the course of the argument before it as stated in the appellant's brief? To answer this question it is necessary to state that where a counsel intends to rely on a document in support of his case, it is by practice the duty of counsel to produce the document which may be in the form of a book, treatise, pamphlet, map, sketch, ruling, order, judgment or to quote in his brief of argument the portion of the document which he is relying on. If the document is in the possession of the court, counsel may leave it to the court to look at the document by merely drawing the attention of the court to the portion of the document that counsel is relying. This is, however, fraught with danger, for the golden rule in our system of advocacy is that the adversary should not be taken by surprise. The document, which may be in possession of the court, may not be easily or readily available to the opposing counsel; and he is entitled to, now the case being made against his client. Furthermore, the court is not a devil to the counsel relying on the document and may therefore refuse to call for the document, even if it is within its custody, say in its Registry, to examine it as proposed by counsel. The refusal to exercise the discretion of the court to examine the document is even supported by a statutory provision as contained in section 73 sub-section (3) of the Evidence Act, Cap. 62, which provides:-
73(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
It follows that the better view is that where a counsel relies on a document including the judgment of the court concerned, whether valid or nullified, in supporting any argument in his client's brief, counsel should either quote in the brief the relevant portion of the document concerned or produce it as a whole to the court. Any shortcut to this will not do unless the court considers otherwise.
In the present case, the Court of Appeal apart from holding that its judgment which had been declared null and void did not exist, went on to state as follows (per Ajose Adeogun, J.C.A.).
.. 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 (sic) in the same case and the objection of appellants' counsel to the said attempt.
Consequently, I do not propose to read the said judgment, let alone considering or, even worse, adopting any opinion, view or conclusion therein as being suggested by respondents' counsel.
It is clear from the foregoing that the reasons given by the Court of Appeal for not looking at the portions of the nullified judgment were based on the fact that the judgment did not exist any more and therefore no reference could be made to it. These reasons are undoubtedly wrong, the judgment, though without legal effect, exists and the Court of Appeal could have accepted any opinion in the portion cited by counsel in the brief of argument, if the Court of Appeal was satisfied that the opinion was right. But the crux of the matter is that the judgment was not produced nor was it quoted word for word in the brief of argument but was instead referred to in the brief of argument by reference to the pages of the judgment. In the circumstances, it would not, in my opinion, have been easy for the Court of Appeal, constituted differently from the earlier panel that gave the judgment nullified to search on its own for the judgment in its registry and after obtaining the judgment to start marking it from page to page, as suggested in the appellants' brief, in order to follow the argument canvassed by counsel. By this, extra and unnecessary burden would have been placed on the Court of Appeal. It was not the Court's duty to act as advocate's devil. I certainly would not subscribe to such development in our art of advocacy. In view of the provisions of Section 73 subsection (3) of the Evidence Act, Cap. 62, I would prefer that the copy of the nullified judgment be produced by counsel or the portion being relied upon by him be quoted word for word in the appellants' brief of argument as this will ease the workload of the court.
For these and the fuller reasons contained in the judgment read by my learned brother, Nnaemeka-Agu, J.S.C., I too would dismiss the appeal with N500.00 costs against the appellants.
Dissenting
Judgment delivered by
Eso. J.S.C.
I have had the privilege of reading in draft the lead judgment in this case, which has just been read by my learned brother, Nnaemeka-Agu, J.S.C. After a deep thought and consideration of the reasoning of my learned brother I deeply regret my inability to agree with both the reasoning and, a fortiori, the conclusion reached by following that reasoning. However, it is to be noted that the point of disagreement, though short, is of fundamental importance to the appeal.
Let me commence therefore with the points I agree with. I agree entirely with the statement of facts by my learned brother especially as this is limited to the facts, which are necessary for the determination of the appeal bearing in mind the fact that this exercise is limited to the preliminary point raised herein. I will therefore not repeat the facts, they having been so admirably set down by my learned brother. Any reference to facts by me herein therefore would be in regard to the understanding of the point of my respectful dissent from the majority judgment.
There was the decision of the trial court, which granted the plaintiffs: -
(i) a declaration of title to the land in dispute
(ii) N300 damages for trespass against the defendants
(iii) a permanent injunction against them, subject however t~ liberty of any defendants having any crops on the land in dispute, to reap those crops.
This decision was affirmed by the Court of Appeal (at that time known as the Federal Court of Appeal). The Court of Appeal did not just affirm the decision of the trial court, it gave full reasons for the conclusion it came to. There was a further appeal to this court. This was where the issue, which is the subject matter of this decision, arose. The Supreme Court, relying on its earlier decision in Odi v. Osafile (1985) 1 N.W.L.R. (Pt. 1)17 declared the judgment of the Court of Appeal a nullity. Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 gave the Supreme Court this power. The section provides: -
Every court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses ..
It was as a result of this that this court set aside the decision of the Court of Appeal and declared it null. A hearing de novo was ordered by the Supreme Court and that hearing commenced before the Court of Appeal.
The question is what would be the legal effect of the nullity declared of the judgment of the Court of Appeal by this court during its first hearing of the appeal? Before I answer this question, I would like to point out that the matter herein arose as a result of the action of the respondents' counsel in the Court of Appeal, at the hearing de novo. In his Respondents' Brief before that court, he had indicated that the respondents would, whenever necessary, invite the Court of Appeal to adopt its opinion which was given in the judgment that had been declared a nullity, that is, the judgment which, by virtue of s.258(1) of the 1979 Constitution, was given without jurisdiction. As my learned brother, Nnaemeka-Agu, had started in the lead majority judgment, learned counsel did not specify the particulars of wherein that judgment such relevant issues would be found.
I think I would, without being unnecessarily repetitive of what my learned brother had already said, set out, for the purpose of this dissent, the words of learned counsel. He submitted in the Brief after first asserting that the two villages of Umunede which were represented as plaintiff in the suit herewith were not the two villages of Umunede 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 10th day of March, 1983 at pp. 5-13. (Italics mine)
He then urged the Court of Appeal in the hearing de novo: -
to adopt this opinion
There was also the issue as to whether or not the appellants [in this court, the respondents in the Court of Appeal] were represented in the Suit W/37/52. Learned counsel's submission in his Brief in the Court of Appeal in the hearing de nova was)
Again the respondents notify this Honourable Court to adopt the reasoning atp. 13 of the decision given during hearing on the 10th day of March, 1983" [emphasis supplied].
There was reference to the case of Ohok v. Olotun and Others 20 N.L.R. 123 at page 125 in the Brief. Learned counsel however added: -
and the opinion of this Honourable Court at pp. 11-12 of the judgment delivered on the 10th day of March, 1983.
I agree with my learned brother that there was no production of the certified true copy of this earlier judgment of the Court of Apeal contents of which were being relied upon by learned counsel. I also agree that no extracts of the opinion, which was being sought to be relied upon, had been exhibited. There was a preliminary objection raised to this Brief before the Court of Appeal. My learned brother had dealt, with respect, adequately with what went on before the Court of Appeal and had set out the ruling of Ajose Adeogun, J.C.A., concurred with by Ikwechegh and Musdapher, JJ.C.A.
The court reacted very strongly against the action of learned counsel. The learned Justice of the Court of Appeal first regarded the intention of learned counsel to invite, whenever necessary, the court to adopt its opinion which was given on 19th March, 1983 was a
disturbing intention of counsel
then, he went on:-
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.
He expatiated: -
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 nonexistent and as if it had never been given.
He concluded: -
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. (Italics mine)
The following language of the erstwhile English Master of the Rolls was called into aid: -
You cannot put something on nothing and expect it to stay there. It will collapse.'
A lot has been said about the submissions of learned counsel in this court in the lead majority judgment. I do not intend to add to these. I also agree with a lot of the conclusions contained in the lead majority judgment and at this stage I must state them.
(1) A judgment which has been nullified is devoid of any legal effect see Fadiora v. Gbadebo (1978) 3 S.C. 219. It has been established as an accepted principle of our jurisprudence that a decision of a court which has been declared as a nullity for whatever reason including the reason that the court that gave the decision has no jurisdiction to give it will have no force of law, and could not be validly relied upon for the purpose of estoppel.
(2) That though the decision has no legal force, it exists in fact.
Often, the much quoted dictum of Lord Denning [see Macfoy v. U.A.C. Ltd (1961) 3 W.L.R. 1405 at p. 1409 P1] has been applied against this stance. 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.
There is no gainsaying it in that the language of the learned Master of the Rolls was as flowing as it correctly set out in the legal position in the particular case before the English Court of Appeal. I have a lot of respect for the learned Master of the Rolls. I have however had cause to explain this dictum in two cases. The lack of legal force in such decision does not detract from the fact of its factual existence. The decision has no legal force in the sense of being used as res judicata or estoppel, but it exists in fact. In other words, it is there to be seen, to be read, or be criticised, to be agreed with in future, to be stored in archives, to be referred to as a null decision to call in the contents for legal education, and with respect, to be adopted in argument or, to use the language of my learned brother: -
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.
In Peenok Investment Ltd v. Hotel Presidential Ltd. (1983) 4 N.C.L.R. 122 I gave my understanding of the dictum of Lord Denning in McFoy v. U.A.C. (supra). I said, and I still maintain, that the dictum was being carried too far, especially the courts which never realised that the facts in the U.A.C.'s case referred to pleadings. Again in Kpema v. State (1986) 1 N.W.L.R. (Pt. 17) 396 at 408, I said as much.
Learned counsel for the appellant in this court has very kindly brought both cases to our notice in this case, if only, to refresh our memory.
Where lies our disagreement in this case then? My brother agrees with the opinion of the Judicial Committee of the Privy Counsel in Kofi Forfie, Odikroof Marban v. Barima Kwabene Seifah, Kenyasehere 1958 A.C. 59 that if a decision is made without jurisdiction it would be ineffectual, but the effectiveness or othewise of the judgment is not relevant to the question whether it is a judgment. The truth is, it is a judgment rendered null, through lack of jurisdiction, and it exists de facto as such.
This I also agree with.
Again I ask-where lies our disagreement in this case? The issue for determination herein has been put by the appellant as:
(1) 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.
(ii) If the answer is in the negative what order should this court make in the circumstances?"
The lead majority judgment, as I respectfully understand it, acknowledges the fact that "a judgment delivered without jurisdiction or nullified for any other cause continues to exist as a judgment" "it will be ineffectual, invalid or even unlawful" it remains the opinion of the court or Judge that delivered it for what it is worth. Then it went on and accepted that such judgment could be used, like any other opinion "say" in a textbook. The lead majority judgment put a condition precedent for such use however. It has to be properly brought before the court. Or again as my learned brother has said the opinion in the nullified judgment must be properly raised at the hearing.
It is, with respect in what, constitutes the proper raising of such opinion that there is a disagreement between my learned brothers judgment and me. I agree with my learned brother that there have been no extracts of the opinion said to be relied upon highlighted in the brief. I also agree that only the page and line references of the opinions of them were made in the Brief.
But is that not a sufficient identification of what was being relied upon? The Brief, as I have earlier pointed out, adopted the reasoning, which was delivered on 19th day of March, 1983 in the appeal which was subsequently set aside by the court. There is no doubt as to which court gave the judgment. It was the same Court of Appeal, and it was in this same case before the order for fresh hearing before the Court of Appeal was made by the Supreme Court.
What is the essence of a court taking judicial notice of some facts? There should be no argument about a court taking judicial notice of its own proceedings and records and also that the court should take judicial notice of the contents. I think this accords with both common sense and justice, for were it otherwise; there would be no end to what has to be proved.
And so, the next question I ask myself is, having regard to the facts of this case, would the judgment given by the Court of Appeal (Omo-Ebo, Agbaje and Okagbue, J.C.A.) which judgment was nullified by the Supreme Court cease to be part of the lawful record of the court? If the answer is in the negative this leads us back to the contention, which we are all not in support of, that once a judgment is null, it ceases to exist. The judgment, though nullified, remains part of the record of the Court of Appeal, stays in archives of that court, and is identifiable by its appeal number forever.
Then another question, Will it make any difference if the panel of the Court of Appeal before whom the hearing de novo is listed has changed? My answer is in the negative. There is only one Court of Appeal set up by the Constitution. Whether the court sits in panels or in divisions makes no difference to the fact and the law that the court is one and one only. In the United States of America, the country is divided into divisions for the purpose of setting up Courts of Appeals. There, the right hand is not expected to know what the left does until one hand examines the other. The judicial system in this country was not unaware of the United States system before the idea of "Courts" was jettisoned in favour of a Court. Historically, the arrival at a court and not courts was not without an incisive debate. A Judges Conference met on this and took the decision, which was communicated, to the Government before the Federal Court of Appeal was set up a single Court in 1976. And in that case, there is only one hand, and that hand knows and is expected to know and must be held to know what it does whether it has five fingers, or more or less.
And so, when the second hearing came, coram Ikwechegh, Musdapher and Ajose-Adeogun, JJ.C.A. that court must take notice of the existence of an earlier record of the same case in the same court (Omo-Ebo, Agbaje and Okagbue, JJ.C.A.)
I regard it as an acceptable criticism, if it is limited to criticism that the passage in the opinion, which was being relied upon the Brief, ought to have been copied out and set down before the court instead of a mere reference to the pages. It is more convenient so to do, but with respect, I fail to subscribe to the view that not doing that which is merely convenient is fatal. The record is there, it is an existing record of the Court of Appeal. It is sufficiently identifiable by the court and in any event, and this is important, there has been no complaint against non-identification. The court has every facility of making reference to the pages indicated. This I believe brings the respondents [in the Court of Appeal] adequately within the law.
And though there has been much industry put into the judgment of my learned brother, Nnaemeka-Agu, J.S.C., I regret I cannot agree with his conclusion. I would therefore allow the appeal. This being a minority opinion it would not be necessary for me to award costs.
Dissenting
Judgment delivered by
Karibi-Whyte. J.S.C.
I have had the privilege of reading the judgment of my learned brother, Nnaemeka-Agu, J.S.C. in this appeal. I have not found it easy to agree with parts of both his analysis of the facts and the conclusion of law drawn. I have with considerable reluctance, not withstanding our agreement in many of the fundamental principles applicable, arrived at a different conclusion. I will allow the appeal.
The point of law involved in the first of the two appeals is the very narrow one of whether a court is entitled to refuse to consider a submission made to it in a case by one of the parties on the ground that the submission was from its decision nullified on appeal. The issue tersely stated therefore is whether counsel cannot refer to and rely on a nullified judgment in his argument in a subsequent case. In other words, whether a nullified judgment cannot be used at all in argument in subsequent litigation. This is the first of the two appeals before us. The second appeal challenges the judgment of the Court of Appeal Division, Benin City. This judgment is concerned with the first appeal.
The facts of the case in respect of the issue before us are very short; and confined to the involvement of the Court of Appeal in the determination of the case.
Appellants in this court were the successful plaintiffs in the High Court. They were in the action granted a declaration of title, N300.00 damages for trespass and an order of injunction. The defendants appealed to the Court of Appeal, which dismissed the appeal on the 10th March 1983. The respondents appealed to this court. The judgment of the Court of Appeal was set-aside on the ground of contravention of section 258(1) of the Constitution, 1979. The case was sent back to the Court of Appeal for rehearing.
The second hearing was by a differently constituted court. The court was by a panel consisting of Ikwechegh, Musdapher and Ajose-Adeogun, JJ.C.A. This panel reached a conclusion opposite to that of the first panel. This appeal is against that judgment.
Parties filed and exchanged their briefs of argument, which they relied upon in argument before us.
In his brief of argument, learned Senior Counsel to the appellants, Chief F.R.A. Williams, S.A.N., formulated the only issue for determination as follows:
Is the Court below correct in refusing to read or to consider its earlier opinion which was declared a nullity by the Supreme Court for the purpose of determining the relevant issues in this appeal?
Tayo Oyetibo, Esq., learned counsel to the respondents agreed with and adopted this formulation of the issues for determination.
The attack on the judgment appealed against emanated from the dictum of Ajose-Adeogun, J.C.A., who read the judgment of the court below and stated as follows: -
The aforesaid attempt by respondents' counsel to influence this Court, consisting of a different panel of justices, by 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 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 nonexistent 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 case 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 issue in their respective brief 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 said Judgment, let alone considering or, even worse, adopting any opinion, view or conclusion therein as being suggested by respondents' counsel." (Italics mine for emphasis)
I wish to make this very short observation on the view expressed in this dictum by Ajose-Adeogun, J.C.A. The learned justice of the Court of Appeal ignored the important fact that the judgment was nullified not on the basis of defect intrinsic in the case itself, but on the contravention of section 258(1) of the Constitution 1979, a fact extrinsic to the case and not affecting the decision of the case on its merits. Thus the case having been decided on its merits, the Supreme Court did not express any views on the correctness vel non of the opinion expressed therein. The question of being tele-guided by the nullified judgment does not seem to me of any moment. The offending opinion is the last paragraph where it was stated that it ''was not proposed to read the said judgment, let alone considering, or, even worse, adopting any opinion, view or conclusion therein I shall deal with this opinion which is the crux of this appeal later in this judgment. The issue relating to adopting the contents of the nullified judgment was raised by counsel to the respondent in the court below, who is now the appellant. It arose as follows: -
In several portions of respondents' brief, notice was given of the intention to rely on portions of the nullified judgment. But instead of reproducing in the brief of argument the passages of the judgment relied upon, counsel merely referred to the relevant passages by reference to the "opinion", "decision", "judgment" delivered on the 10th day of March 1983. It must be pointed out that at the time of this exercise the judgment of the l0th March 1983 had been nullified for non-compliance with section 258(1) of the Constitution, 1979. Counsel was quite aware that the "judgment", "opinion", or "decision" he was referring to had been nullified and did not have any legal force. But it seems to me that what learned counsel was doing was to adopt these passages referred to as part of his argument at the rehearing of the appeal before the Court of Appeal. As I have already observed this court expressed no opinion on the merits of the case.
In the Court below, the present respondents, who were the appellants in that court raised a preliminary objection arguing that respondents who are the appellants here could not rely on the portions of the judgment referred to in the nullified judgment-since the judgment itself was a nullity. Counsel cited and relied on Akpene v. Barclays Bank (1977)1 S.C. 47 and 59; N.H.D.S. v. Mumuni (1977) 2 S.C. 57, 85-86; Peenock Ltd. v. Hotel Presidential Ltd. (1982)12 S.C. 1, l00-l0l; Uttah v. I.B. Ltd. (1974)2 S.C. 7 at p.10; Animashaun v. Osuma (1972) 4 S.C. 200 at p.212.
In his reply learned counsel to the respondents, who are the present appellants, submitted that whether or not a court can make use of a judgment, which is a nullity in the determination of the appeal, was a point of substantive law and not of procedure and relates to the merit of the case. He submitted that it was not a matter for preliminary objection; respondents having not violated any rules of procedure. It was submitted that a nullified judgment has an existence in fact. It only ceases to have any existence in law. It was finally submitted that, it was the judgment itself and not the opinions expressed in the judgment that was nullified.
These contentions were not subjected to analysis and ruled upon in the court below. The only view expressed was in the dictum I have reported in this judgment.
I have already set out the issues for determination as agreed by the parties before us. It is common ground that when a judgment or order is declared a nullity, it means that it is devoid of any legal consequences, and is not enforceable. It merely means that the status quo remains as it was before the nullified judgment. However, learned Senior Counsel for the appellants submitted that that is quite different from saying that the judgment or order is non-existent. Counsel contrasted a situation in which no judgment or order was made on the one hand, and where judgment was in fact given without jurisdiction or the order made in fact ultra vires He submitted that it will not be correct to say that there is no difference in the two situations. Kpema v. State (1986)1 N.W.L.R. (Pt. 17) 396 at p.408; Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982)12 S.C. 1; (1983) 4 N.C.L.R. 122, 163 were cited and relied upon.
Learned Senior Counsel referred to views in the judgment that a judgment that is a nullity is non-existent, and cannot constitute an opinion of the court that gave it; and submitted that that is erroneous. It can be regarded as the opinion of the Judge who delivered it-He referred to Ealing London Borough Council v. Race Relations Board (1971)1 Q.B. 309 at p.312, and Forfie v. Seifah (1958) A.C. 59.
It was finally submitted that the refusal of the Court of Appeal to consider appellants' case merely because it was on the opinions expressed in a nullified judgment of the same court, was a misdirection which deprived appellants of their constitutional right to fair hearing. Counsel relied on Adigun v. Attorney-General (1987) N.W.L.R. (Pt.); (1987)1 S.C.N.J. 346. We were urged to allow the appeal and either remit the case to the Court below for a rehearing, or to hear the case in this court.
In his reply, Mr. Oyetibo for the respondents drew attention of the court to the dictionary definitions of the words "opinion", and submitted that it must be predicated by something. A judgment declared to be a nullity has no legal consequence. It is as if it had never been given. He cited and relied on Fadiora v. Gbadebo (1978) 3 S.C. 219; 235-239; Akpene v. Barclays Bank (1977)1 S.C. 47, 59; Kajubo v. State (1988)1 N.W.L.R. (Pt. 73) 721, 732-3.
Counsel submitted that the opinion sought to be relied upon was not before the Court of Appeal at the second hearing. The proceedings, copies of which were not exhibited and portions of the nullified judgment were not extracted and exhibited in the motion papers. The court could not take cognisance of the proceedings before another panel. It was submitted that the absurdity in the appellants contention is that the lower court will indirectly be rendering nugatory the judgment of the appellate court sending the case back for rehearing in that when the previous judgment is adopted as the opinion of the lower court, then the lower court will merely approve the previous judgment in question, in which case it would have been unnecessary to have the judgment of the appellate court.
In his further reply Chief Williams, S.A.N., for the appellants submitted that the reasons given by the Court of Appeal for not looking at the previous judgment was not that they were not before him, but because the judgment was nullity. He submitted that the previous judgment was in the Registry of the court and every court will take judicial notice of its record.
I confess that this appeal has given me more anxiety than I thought. The legal implications of the decision are likely to be far-reaching, and the jurisprudential complexities go beyond considerations of what could be done with a judgment, which is a nullity. Strictly speaking, the real issue is not whether a litigant is entitled to rely on opinions expressed in a judgment subsequently declared a nullity, it is whether a Judge to who such opinion is referred can refuse to look at the opinion?
The submission of counsel to the respondent has been anchored on the fact that a judgment declared a nullity has no legal consequences, accordingly no legal consequences flow from persons relying on such judgment. This is not being disputed, and there are unequivocal dicta to that effect in Fadiora v. Gbadebo (1978) 3 S.C. 219, 235.
Several cases were cited to us on the principle. For instance Gipps v. Gipps & Hume (1861) 73 All ER. Rep. 138; Venn v. Tedesco (1928) 2 K.B. 227; (sic) Akpene v. Barclays Bank (1977) 1 S.C. 47; Utta v. Independence Breweries Ltd. (1974)2 S.C. 7 at p.10. All the above cited cases show that a judgment which had been nullified cannot be relief upon for a plea of estoppel. Thus supporting the contention that such a judgment is without legal effect.
But in actual fact what was appellant doing when he was urging the court below to refer to the nullified judgment? There is nothing in counsel's statement to give the impression that he was applying to the court for the enforcement of the judgment, which admittedly has no existence in law.
It is important in the determination of the issue before us to bear in mind the two senses in which the word "opinion" or "judgment" could be used. The word "judgment" in its ordinary usage connotes the resolution by a person with respect to a course of action between competing alternatives. In its technical sense in which it is used in judicial proceedings, the word "judgment" connotes a binding determination of a court or tribunal in a dispute between two persons. The determination is enforceable by the exercise of the coercive jurisdiction of the courts at the instance of the party in whose favour the judgment has been made.
The characteristic mark of a legal right is its recognition by the legal system in which the right is claimed to be enjoyed. Enforceability of the right claimed with the assistance of the coercive jurisdiction of the body or institution which has declared the right is recognised as a sine qua non of a legal right.
A legal right is created by the state on the satisfaction of certain prescribed criteria. A judgment is accepted as valid and possessing legal force if delivered after due process, and there is nothing extrinsic which renders its decision defective. The dictum of Bairamian, J.S.C. in Madukolu v. Nkemdilim (1962)1 All N.L.R. 587 is a locus classicus of this view. The learned Justice of the Supreme Court declared: -
A Court is competent when: -
(1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case, which prevents the court from exercising its jurisdiction.
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.
In the instant case, it is not in dispute that the factors which constituted the nullified judgment were in existence in fact before the 10th March, 1983 when the judgment of this court declaring that judgment a nullity was given. Those elements lost their legal character and were deemed never to have had that character as from that date the judgment of this court setting aside the judgment of the Court of Appeal was given because the judgment failed to meet the conditions prescribed by section 258(1) of the Constitution. Accordingly, having failed to satisfy the conditions the judgment could not qualify as one capable of enforcement. Otherwise, the judgment still remains the same on the records of the court, which had pronounced it. But it remains so devoid of any legal force and lacks the coercive force of the State for its enforcement. Thus the difference between the two situations is that whereas a valid judgment remains enforceable at the instance of the party in whose favour it is given, as nullified judgment loses all its legal character and remains a judgment merely in name. It is not recognised as a determination of the issue before the court and cannot be enforced since it does not exist as a determination of the court.
This leads me to the consideration of the two crucial questions, the resolution of which in my opinion, will decide the issue in this appeal. I observe that none of the many decided cases on the effect of nullities on a plea estoppel has answered the questions
(i) whether a declaration that a judgment is a nullity wipes such judgment out of existence as a matter of fact?
(ii) if the judgment still exists as a matter of fact but devoid of its legal incidents, can it be founded upon in argument?
(iii) is a judgment declared a nullity still part of the record of the court that decided it?
I shall consider the answers to these questions seriatim. In beginning with the first question, I shall refer to the dictum of Denning L.J. in Macfoy v. United African Co. Ltd (1961) 3 W.L.R. 1405, tenaciously relied upon by counsel to the respondents. In that case Denning, L.J., was reported to have said of the effect of an act, which is a nullity as follows: -
Any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect.
He then went on to conclude: -
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.
There has been considerable misunderstanding in the profession of the real meaning and scope of this dictum. It has not been generally appreciated that Macfoy v. UA.C. Ltd. (supra) was concerned only with the effect in law of an act declared to be void. It did not touch the question of the existence in fact of the act devoid of its legal consequences. The dictum cannot be extended to include the existence in fact of acts, which have lost their legal attributes.
Chief Williams, S.A.N., was perfectly correct and entitled to argue that there is all the 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 it was given without jurisdiction and saying that no judgment was given at all. It is the difficulty of distinguishing between the legal effect of the declaration of nullity and the factual situation. The learned justice of the Court of Appeal was therefore wrong to have held that because the judgment was declared null and void for non-compliance with the provisions of section 258(1) of the Constitution, it as non-existent. The judgment is in accordance with the declaration devoid of any legal incidents; it remains nonetheless a judgment as a matter of fact.
The second question is whether in the emaciated survival of the judgment devoid of legal attributes, a party to a matter before the Court can found his argument on it. Concisely stated, whether the judgment in fact can be relied upon as the opinion of the judge or court that delivered it. It is important to bear in mind that a judgment, which is a nullity, had no legal attributes, creates no rights and no obligations. It is unenforceable at the instance of either party. The judgment loses both its coercive character as a judgment and its binding or persuasive character as a judgment of a court of law. The position is that the views expressed therein exist as opinions, which may be adopted, presented and relied upon in argument in any case.
In Forfie v. Seifah 9(1958) A.C. 59 at p.65, the Judicial Committee of the Privy Council considering the effect of a judgment, which is a nullity, stated: -
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 it is not a judgment within the meaning of the term in Ord. 41. Their Lordships are of the 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.
The effect of judgment which is a nullity could not be more appositely expressed. I adopt this view in its entirety. In this case the judgment sought to be validated was given without jurisdiction, but the subsequent act validating it was made after jurisdiction had been conferred. In Ealing London Borough Council v. Race Relations Board & anor (1971)1 Q.B. 309 at p. 312, Swanwick, J., 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 country 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.
It seems to me obvious that the existence of the judgment in fact, and devoid of legal attributes and consequences is separable from the existence of the judgment in law, clothed with all the legal attributes, and consequences and backed by the coerce force of the State in favour of the successful party.
The third question is whether a judgment declared to be a nullity is still part of the record of the court. I think it follows that if the judgment exists as a judgment but devoid of legal attributes or legal consequences, it still remains a part of the record of the court all the same. The decision of Forfie v. Seifah (supra) and Ealing London Borough Council v. Race Relations Board (supra) already referred to support the view. It should be pointed out that the effect of a declaration of nullity merely strips the act concerned of its legal attributes, it does not wipe it out of existence. The factual situation still remains stripped of its legal incidents. Hence a judgment declared to be a nullity still remains part of the record of the court but without legal incidents. A declaration of nullity does not expunge the existence of the facts from the records of the court. The legal effect, and it is the only effect, is to deprive the judgment so nullified of its legal characteristics.
This now leads me to the consideration of the contention of Chief Williams, S.A.N., that the refusal of the learned Justice of the Court of Appeal to look at its own records containing the arguments in support of the case being presented by the appellant, on the ground that the argument was founded on the opinion in a judgment nullified for want of jurisdiction is a misdirection tantamount to an infringement of the appellants' right to fair hearing. I entirely agree with this submission as juridically sound.
A court is bound to consider the case validly presented to it by parties before it. A refusal to do so on any pretext, except on a ground of law will amount to a denial of the right to hear such party, a ground fundamental, to the administration of justice, the breach of which is fatal:-See S.33(l), Constitution, 1979. The opinion in the nullified judgment having been adopted by appellant as part of his argument, not on the ground that it constitutes either a binding or, persuasive precedent, but as part of the case of the appellant, the court was bound to consider it. The merit of the material relied upon is a different consideration and should not constitute a ground for the decision whether to look at the facts.
In Forfie v. Seifah (supra) the appointments to preside over the Chief Commissioner's Court were made by orders signed by the Colonial Secretary. When Mr. Spooner heard the case he held office under Order No. 84 of 1948. In an Order signed on May 10, 1949, another officer, Mr. Allen was appointed to preside over the Chief Commissioners' Court, and Order 84 of 1948 was rescinded. By an Order No.42 of 1949 of June 21, 1949, Mr. Spooner was again appointed Commissioner for the period, June 23, 1949 to June 30, 1949. On June 29, 1949, Mr. Spooner was appointed Commissioner for the period June 23, 1949 to June 30, 1949. Mr. Spooner reviewed the judgment of May 10, 1949. He said that on May 10, he had no jurisdiction to deliver the judgment and said that he had jurisdiction and that he was acting under his power of review; and delivered judgment identical in terms with his original judgment. The Judicial Committee of the Privy Council held: -
Assuming that the Judge had no power on June 29, 1949, to review his judgment of May 10, 1949, he nevertheless had power to declare it a nullity and proceed to give a fresh judgment.
It seems to me that in this case the judgment declared a nullity was at all times even after the declaration accepted as existing.
Counsel to the respondents has submitted that the opinion relied upon by the appellant was not before the court, accordingly copies of the proceedings or extracts thereof relief upon should have been exhibited in the motion papers. It was contended that the court ought not to take cognisance of the proceedings before another panel.
The reasoning of my learned brother, Nnaemeka-Agu, J.S.C., will seem to have been on the same lines. It was argued that only page and line references of the record of proceedings were made in the brief of the respondent in the court below, herein the appellant. Counsel has relied on this argument to contend that the judgment was not exhibited to the application in the court below. What appeared to have been fully endorsed by my learned brother, Nnaemeka-Agu, J.S.C., is the contention that the judgment declared a nullity was that of another panel in respect of which the panel rehearing a case could not take judicial notice.
Chief Williams pointed out and I agree with him entirely that the learned justice of the Court of Appeal refused to look at the judgment declared a nullity merely because he did not recognise its existence both in fact and in law. He did not look at it for the ground herein contended, that the passages relied upon were not extracted and exhibited to the application or that that judgment was not exhibited.
My learned brother, Nnaemeka-Agu, J.S.C. with whom my learned brother, Uwais, J.S.C., agrees is of the opinion that the opinions sought to be relied upon were not properly raised in the brief of argument of respondent in the court below.
Whilst conceding the general proposition that a court will take notice of its own proceedings records and contents, it was contended that the rule did not cover cases decided by a different panel of the same court. Matters of judicial notice were divided into those automatically to be judicially noticed and those to be judicially noticed on production of evidence to inform the court or refresh its memory on the matter.
It seems clear that the analysis of the decided cases and the provisions of the Evidence Act relied upon that my learned brother, Nnaemeka-Agu, J.S.C., held that the facts of the case brings it within this second category in respect of which judicial notice can only be taken upon the production of evidence.
My views on this is diametrically opposed to this reasoning and different. It is difficult to understand the breaking up of proceedings of panels of the same court with the same records into different records, which should require proof of the records of the other. There is only one Court of Appeal for the Federation of Nigeria, which sits, in different administrative divisions. It will not only be awkward but also preposterous to demand formal proof of the judgment of one division in the other. In fact the Evidence Act appears to have settled the doubt. For instance 5.73(1), which prescribes facts in respect of which courts must take judicial notice, includes: -
(m) the course of proceedings and all rules of practice in force in the High Court of Justice in England and the High Court of the States.
Furthermore S.72 of the Evidence Act provides
No fact of which the Court must take judicial notice need be proved.
The matters sought to be used in argument being in the course of judicial proceedings are those which are mandatory required to be judicially noticed and in respect of which no proof was required. The record of proceedings of the nullified judgment is of the Benin City Division of the Court of appeal. It seems to me a little tedious to require each panel to prove and not to take judicial notice of the proceedings in the Court of the Division.
It is interesting to conjecture the position in an appeal where two members of the Court of the Division have differently sat in an appeal. Merely because they sat in two different panels of the court of the same division, parties will be required to lead evidence before proceedings in which they were parties could be admitted before them. I do not think it is consistent with the provisions of the Evidence Act.
The conclusion I have reached in this appeal is that it was only necessary for counsel to the appellants to refer the court to its judgment even though nullified. The judgment is still a judgment of the court in fact which having not satisfied the provisions of the law could not qualify as a judgment in law capable of being enforced. The learned justices of the Court of Appeal were wrong for refusing to look at the records of the court. I will therefore hereby allow the appeal of the appellants and order a rehearing in the court below.
Appellants shall have the costs of this appeal assessed at N500.00 in this court and N300.00 in the court below.
Counsel
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Chief F.R.A. Williams, S.A.N. With Ladi Williams |
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For the Appellants |
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Tayo Oyetibo With Kunle Fadipe |
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For the Respondents |