ISSUES

Whether the judgment of the Court of Appeal delivered on 22 January 2004 by the Court made up of P.O. Aderemi, JCA, Suleiman Galadima, JCA, and C.M. Chukwuma-Eneh, JCA was rendered invalid because J.O. Ogebe, who participated at the hearing of the appeal, was not a member of the Court which delivered the judgment.

Whether the judgment of the court of appeal was invalid because Galadima, JCA who had not sat at the hearing of the appeal, gave a concurring judgment.

Whether the absence of the written opinion (judgment) of J.O. Ogebe, JCA invalidated the Court of Appeal judgment and rendered it a nullity in accordance with the provisions in sections 247(1) and 294(2) of the 1999 Constitution.

FACTS

The respondent, as plaintiff, sued the first and second appellants in the Lagos High Court for various sums of money in three separate actions. Judgment was granted in favour of the respondent in all three suits, and the appellants appealed to the Court of Appeal. The three cases were consolidated, and the Court of Appeal dismissed the appeal. The appellants appealed further to the Supreme Court.

The consolidated appeal had first come before the Court of Appeal for hearing on 5 November 2003, made up of Justice J.O. Ogebe (presiding), Justice P.O. Aderemi and Justice C.M. Chukwuma-Eneh. The matter was adjourned for judgment, and on 22 January 2004, the appeal was unanimously dismissed by the Court, made up of Aderemi, JCA, who gave the lead judgment, Suleiman Galadima, JCA and C.M. Chukwuma-Eneh, JCA concurring. This panel of Justices was shown on the face of the leading judgment as having heard the appeal and delivered the unanimous judgment. Justice Galadima, who did not participate in the hearing of the appeal on 5 November 2003, actually delivered a concurring judgment to Justice Aderemi's lead judgment delivered on 22 January 2004. The record of the appeal did not contain the judgment (concurring or dissenting) of Justice Ogebe, JCA, who had presided at the appeal hearing on 5 November 2003.

HELD

Leading judgment by Mahmud Mohammed, JSC with A.I. Katsina-Alu, U.A. Kalgo, N. Tobi and I.F. Ogbuagu, JJSC concurring

1.      Breach of principle of fair hearing cannot be remedied

Once there has been a breach of the principle of fair hearing, the proceedings cannot be salvaged and are null and void ab initio. Ubuwa v Tiv Traditional Council (2004) 5 SC approved. Per Mohammed, JSC at 542.

2.      Jurisdiction of the Court of Appeal in terms of section 274(1) of the Constitution

The court made up of Ogebe, Aderemi and C.M. Chukwuma-Eneh, JJCA was properly constituted in terms of section 274(1) of the Constitution for the purpose of exercising jurisdiction to hear the appeal. Per Mohammed, JSC at 542.

3.      Appeal Court judgment not in compliance with section 294 of the Constitution

To comply with section 294 of the 1999 Constitution, each of the Justices who heard the appellant's appeal ought to have reduced his judgment or opinion in writing for delivery in person or by any other of the Justices on the date fixed for delivery of the judgment. For a judgment to be valid, it must have been put in writing for delivery by all the members of the panel of the Justices who participated at the original hearing of the appeal. The present judgment of the Court of Appeal was not a complete judgment in terms of the requirements of section 294 of the Constitution. Per Mohammed, JSC at 542.

4.      Improper Constitution of the Court

The judgment delivered by Galadima, JCA, who did not sit at the hearing of the appeal, fatally affected the competence of the Court, with the result that the Court was improperly constituted and its judgment invalid. The proceedings were a nullity. Per Mohammed, JSC at 542.

5.      Incompetence of a judge who did not hear appeal concurring

The fact that three Justices heard the appeal and that three Justices sat on the day of judgment did not mean that the Constitutional requirement regarding quorum was fully satisfied (Judge's emphasis). It was crucially fatal that a judge who did not hear argument of the parties wrote a concurring judgment on appeal. Per Ogbuagu, JSC at 556.

Appeal allowed. Consolidated appeal remitted to the Court of Appeal for hearing de novo before another panel of Justices.

A.B. Ogunba, Esq., (with him S.N. Ekwueme, Esq.) for the first and second appellants

O.A.R. Ogunde, Esq. for the third appellant

O. Jolaawo, Esq. (with him K. Olowookere, Esq. and W. Chukwuonye (Mrs)) for the respondent

The following cases were referred to in this judgment:

Nigeria

Adeigbe & another v Kusimi & others (1965) 1 All NLR (1990) (Reprint) 260

Ajao v Alao (1986) 5 NWLR (Part 45) 802

Akoh & others v Abuh (1988) 3 NWLR (Part 85) 696

Ashiru Noibi v R.J. Fikolani (1987) 1 NWLR (Part 52) 619

Attorney-General Anambra State v Attorney-General Federation (1993) 6 NWLR (Part 302) 692

Chapman v CFAO 9 WACA 181

Damoah v Taibil 12 WACA 167

Disu & 13 others v Alhaji Ajilowura (2006) 14 NWLR (Part 1000) 783; (2006) 7 SCNJ 134; (2006) 7 SC (Part II) 1

Egba N.A. v Adeyanju (1936) 13 NLR 77

Ezomo v Oyakhire (1985) 1 NWLR (Part 2) 195

Gurar Securities and Finance Ltd v T.I.C. Ltd (1999) 2 NWLR (Part 589) 29

Madukolu & others v Nkemdilim & others (1962) 2 SCNLR 341; (1962) 1 All NLR 587

Mai Rai v Bauchi N.A. (1957) NNLR 31

Maiwa v Abdu (1986) 1 NWLR (Part 17) 437

Nana Twaiah v Kwesi Ewudizi 3 WACA 5

Okino v Obanebira & 4 others (1998) 12 SCNJ 27

Orugbo v Una (2002) 16 NWLR (Part 792) 175

Otwiwa & another v Kwaseko 3 WACA 230

Queen v Governor in Council WR Ex parte Laniyan Ojo (1962) All NLR 147

Runka v Katsina N.A. 13 WACA 98

Shuaibu v Nigerian Arab Bank Ltd (1998) 5 NWLR (Part 551) 582; (1998) 4 SCNJ 109

Sofolahan & 5 others v Chief Folakan & 12 others (1999) 10 NWLR (Part 621) 86 CA

Tawiah III v Ewudzi 3 WACA 52

Tukur v Government of Taraba State & 2 others (1997) 6 NWLR (Part 510) 549; (1997) 6 SNCJ 81

Ubwa v Tiv Traditional Council (2004) 11 NWLR (Part 884) 427

The following statutes were referred to in this judgment:

Nigeria

Constitution of the Federal Republic of Nigeria 1979: S 258(2)

Constitution of the Federal Republic of Nigeria 1999: Ss 247(1); 294(1), (2), (3) and (4); Chapter 4

MOHAMMED, JSC (DELIVERED THE LEADING JUDGMENT):- The respondent in this appeal was the plaintiff at the trial in Lagos State High Court of Justice where it instituted: three suits, LD/3843/1999, LD/3844/1999 and LD/3846/ 1999, claiming various sums of money from the first and second appellants who were the defendants in the suits. After hearing the parties, judgment was entered for the plaintiff/respondent in the three suits which gave rise to three separate appeals numbers CA/L/108/2001, CA/L/109/2001 and CA/L/110/2001 in the Lagos Division of the Court of Appeal by the first and second defendants/appellants' who were not satisfied with the judgment of the High Court. These appeals were consolidated and heard by the Court of Appeal which in its judgment delivered on 22 January 2004, dismissed the appeal. Still aggrieved with the judgment of the Court of Appeal, the defendants/appellants have now appealed to this Court. In the first and second appellants' brief of argument, the following three issues were formulated from the grounds of appeal:

"(i) Whether a panel of Justices different from the panel of Justices that heard argument from the parties, examined the Record of Appeal, asked vital questions on the 5 November, 2003 can deliver a valid judgment in this appeal on the 22 January 2004.

(ii) Whether in view of the circumstances of this suit and the arguments canvassed by the first and second appellants on the issue of jurisdiction in their Brief of Argument, the Lagos State High Court has jurisdiction to entertain the actions and whether Court of Appeal is not bound to make specific pronouncement on the challenged jurisdiction of the Lagos State High Court to hear and determine this suit?

(iii) Whether service of the Originating Processes can he properly effected on the first and second appellants (Sokoto State Government of Nigeria and its Attorney General and Commissioner for Justice) in Lagos to wit:- 7, Adeola Odeku Street, Victoria Island, Lagos and an adjunct to same whether the said allegedly effected service at 7 Adeola Odeku Street, Victoria Island, Lagos ought not to be set aside in view of the contradiction in the actual address on which service was effected and the fact that the second appellant is a natural person?"

In the brief of argument, filed by the plaintiff now respondent in this appeal, three issues were identified as in the appellants' brief of argument but differently framed to suit the respondent's case. The issues are:-

"(i) Whether the judgment of the Court of Appeal delivered on January 22, 2004 by their lordships coram: Suleiman Galadima, P.O.

Aderemi and C.M. Chukwuma-Eneh, JJCA became invalid by reasons of the facts that Honourable Justice J.O. Ogebe who participated at the hearing of the appeal was not on the panel that delivered the judgment.

(ii) Whether the service of the Originating Processes in the suits leading to this appeal on the appellants at their liaison office in Lagos is valid service in law.

(iii) Whether the findings, pronouncement and resolution by the lower court of issues 1, 2 and 3 identified by the appellant and issues 1, 2, 4 and 5 identified by the respondents do not finally dispose of the issue of jurisdiction as raised and argued in the lower court."

The first issue for determination is virtually the same in both the appellant's and the respondent's briefs of argument. However before proceeding to consider this issue, it is very important to state what actually happened in the proceedings before the Court of Appeal from 5 November 2003, when the appellants' appeal was heard in that court, to the 22 January 2004, when judgment in the appeal was delivered. This is because it is the facts that transpired during this period that gave rise to the appellant's ground (a) of the grounds of appeal from which this first issue was distilled. The record of this appeal at page 101 shows that the consolidated appeals numbers CA/L/108/2001, CA/L/109/2001, CA/L/110/2001 and CA/L/111/2001 between the same parties in the present appeal came up for hearing before a panel of Justices of the court below comprising of:

Hon. Justice J.O. Ogebe - Presiding Justice

Hon. Justice P.O. Aderemi - Justice Court of Appeal

Hon. Justice C.M. Chukwuma-Eneh - Justice Court of Appeal

On 5 November 2003, the record of that day reads:-

"Mr A.B. Ogunba with Messrs G.C. Duru and O.F. Efunkomaiya for first and second appellants, Mr R. Abijo for third appellant, Mr R. Tarfa SAN with J. Odubela, A. Malgwi and Mrs D. Ademu-Eteh for the respondent.

Court: Only appeals No. 108, 109 and 110 will be taken. Appeal 111 is adjourned to abide the result of the consolidated appeals.

Mr Ogunba: We filed the brief on 4 of July 2001. We also filed reply brief on 10 of May. I adopt them. I urge the court to allow the appeal.

Mr Abijo: I filed third appellant's brief on 16 October 2001 and reply brief on 9 July 2002. I adopt them. I urge the court to allow the appeal.

Mr Ricky Tarfa: We filed brief in respect of appeal by first and second appellants on 14 February 2002. I adopt it. The appeal is against the refusal to set aside the order, I urge the court to dismiss the appeal. As regards third appellant's appeal, we filed brief on 2 May 2002. There is also a preliminary objection and third appellant filed a reply. I urge the court to uphold the preliminary objection.

Court: The appeal is adjourned to 22 January 2004 for Judgment

(SGD)

J.O. Ogebe

Justice Court of Appeal"

The record of this appeal at page 2 and subsequent pages does not contain any court proceeding to show that the court sat on 22 January 2004 to deliver the judgment in the appellants appeal adjourned to that date. However, pages 102 to 129 of the record contain the lead judgment of Aderemi, JCA (as he then was) in appeal No. CA/L/108/2001 between the parties in this appeal supported by the concurring judgments of Suleiman Galadima, JCA and C.M. Chukuwuma-Eneh, JCA (as he then was), unanimously dismissing the appellants appeal. The panel of Justices shown on the face of the leading judgment at page 102 of the record as having heard the appeal and delivered the unanimous judgment is made up of S. Galadima, JCA, P.O. Aderemi, JCA (as he then was), and C.M. Chukwuma-Eneh, JCA (as he then was). This appeal number CA/L/108/2001, the judgment in which was delivered by the Hon. Justice Galadima led panel, was one of the consolidated appeals heard and specifically adjourned to 22 January 2004 for judgment by the Hon. Justice Ogebe led panel. The record of this appeal also shows that Hon. Justice Galadima who did not participate in the hearing of appeal No.CA/L/108 with Hon. Justice Ogebe, Aderemi and Chukwuma-Eneh on 5 November 2003, actually wrote and delivered a concurring judgment to Hon. Justice Aderemi's lead judgment delivered on 22 January 2004. Meanwhile, the record of the appeal does not contain the concurring or dissenting opinion as the case may be of Hon. Justice Ogebe, JCA who presided at the hearing of the appellant's appeal on 5 November 2003.

From these rather glaring undisputed facts in the record of this appeal, the real question to be determined from the first issue arising for determination, is whether or not the judgment of the court below delivered on 22 January 2004, in the circumstances is valid. Learned Counsel to the appellants referred to sections 247(1) and 294(2) of the 1999 Constitution and argued that the cumbered effect of the sections, is that the panel of Justices of the Court of Appeal that heard an appeal, shall be the same panel that will deliver their opinion in writing as it relates to the judgment of any particular suit; that the absence of the written opinion of Hon. Justice James O. Ogebe in the judgment of the Court of Appeal delivered on 22 January 2004 invalidates the said judgment and makes it a nullity, as the parties were not "fairly" heard because a judge who did not "hear" them made a pronouncement against them resulting in denial of fair hearing enshrined in chapter 4 of the 1999 Constitution. The case of Madukolu & others v Nkemdelim & others (1962) 2 SCNLR 34 was relied upon in support of this argument. Learned Counsel further referred to a number of cases such as Queen v Governor-In-Council W.R. Ex parte Laniyan Ojo (1962) 1 All NLR 147; Mai Rai v Banchi N.A. (1957) NNLR 31; Nana Tawuiah v Kwesi Ewudizi 3 WACA 52; Otwiwa & another v Kwaseko 3 WACA 230; Chapman v C.F.A.O. 9 WACA 181; Orugbo v Una (2002) 9-10 SC 61; (2002) 16 NWLR (Part 792) 175 at 199 and particularly the recent decision of this Court, in Ubwa v Tiv Traditional Council (2004) 5 SC (Part II) 49; (2004) 11 NWLR (Part 884) 427 which is on essentially similar facts with the present case, and submitted that once an Appellate Court comes to the conclusion that there is a breach of the principles of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio.

On the decision of this Court, in Shuaibu v Nigerian Arab Bank Ltd (1998) 4 SC 170; (1998) 5 NWLR (Part 551) 582, heavily relied upon by the learned Counsel to the respondent in the respondent's brief of argument, learned Counsel observed that the decision is clearly distinguishable with the decision of this Court, in Ubwa v Tiv Area Traditional Council (supra) as the facts and circumstances arriving at the decision in the two cases are not the same. Learned Counsel concluded his argument by urging this Court to allow the appeal on this issue, set aside the judgment of the court below of 22 January 2004 for having been delivered contrary to the provision of the Constitution.

For the respondent however, its learned Counsel contended that from the record of this appeal, it is undisputed that three Justices of the Court of Appeal heard the appellants' appeal on the day the appeal was heard. Equally not in dispute is the fact that on the day the judgment in the appeal was delivered, three Justices of that court sat and delivered the judgment. Learned Counsel maintained that on the face of the record, the provision of the Constitution regarding the quorum of the court below was fully satisfied with three Justices hearing the appeal and three justices delivering the judgment of the court. Referring to the facts that Hon. Justice Suleiman Galadima who did not participate in the hearing of the appeal but all the same delivered a judgment concurring with the lead judgment, learned respondent's Counsel regarded that as a mere irregularity incapable of nullifying the judgment. Heavy reliance was placed by the learned Counsel on the decision of this Court, which he described as arising from similar facts in Shuaibu v Nigerian Arab Bank Ltd (1998) 4 SC 170; (1998) 5 NWLR (Part 551) 582, and urged this Court, to hold that the appellants having acquiesced to the irregularity in the judgment delivered, which did not occasion any miscarriage of justice, cannot be heard to complain. This argument according to the learned Counsel, is supported by the decision in case of Ashiru Noibi v R.J. Fikolani (1987) 1 NWLR (Part 52) 619 as 625-626 and Ezomo v Oyakhire (1985) 1 NWLR (Part 2) 195 which warn that technicalities will not be allowed to override substantial justice.

On the decision of this Court, in Ubwa v Tiv Area Traditional Council (supra), learned Counsel disagreed with the appellant that the decision is in conflict with the earlier decision in Shuaibu v Nigerian Arab Bank Ltd (supra) and therefore concluded by urging this Court to hold that the mix up in the judgment delivered in the present case by the court below, was only an irregularity which is not enough to nullify the judgment now on appeal.

In resolving this issue, let me start by agreeing entirely with the learned Counsel to the respondent that the decision of this Court in Ubwa v Tiv Area Traditional Council (supra) delivered on 21 May 2004 and the earlier decision in Shuaibu v Nigerian Arab Bank Ltd (supra) delivered earlier on 24 April 1998, which were cited by the learned Counsel for the parties in their respective briefs of argument, are not in conflict. The facts and circumstances leading to the two decisions are entirely different. In Shuaibu v Nigerian Arab Bank, it is quite clear from the record of appeal that delivered the judgment that the panel of Ndoma Egba, Mukhtar and Okezie, JJCA which actually heard the appeal, was the same panel that delivered the judgment that came on appeal to this Court. Hon. Justice Adio who did not take part in the hearing of the appeal nor participated in the delivery of the judgment, his judgment was inadvertently included in the record of the appeal which the appellant used in that case in challenging the competence of the judgment on appeal. The decision of this Court in that case was that irrespective of how the judgment of Hon. Justice Adio, JCA got into the record of appeal, the fact that the same panel that heard the appeal was the same panel that delivered the judgment of the court, the judgment of the Court of Appeal cannot be described as a nullity because what happened in the proceedings of that court was a mere irregularity.

However the situation is entirely different in Ubwa v Tiv Area Traditional Council (supra) where the panel that heard the appeal comprised Akpabio, Umoren and Chukwuma-Eneh, JJCA while the panel that wrote and delivered the judgment was made up of Akpabio, JCA who read the leading judgment with Umoren and Mangaji, JJCA delivering the concurring judgments. This means that Mangaji, JCA (of blessed memory) who did not take part in the hearing of the appeal on 18 November 1999, also wrote a concurring judgment in the appeal which was delivered on 14 February 2000. This shows that although the court was properly constituted by three Justices on the day the judgment of the court was delivered, the judgment that was delivered was not by the members of the same panel that heard the appeal on 18 November 1999. It was this situation that resulted in the judgment of this Court in that appeal declaring the judgment of the Court of Appeal delivered on 14 February 2000 a nullity. Thus, as there is no conflict whatsoever in these decisions relied upon by the learned Counsel on both sides in this appeal, the question of which of the two decisions to rely upon depends entirely on the facts and circumstances in the present case that led to the delivery of the judgment of the court below now on appeal.

The status of a judgment given by a court improperly constituted in the sense that court was differently constituted during the hearing of the case, had been determined in many decisions of superior courts including this Court and the West African Court of Appeal. In Adeigbe & another v Kusimu & others (1965) 1 All NLR (Reprint) 260 at 263 Ademola, CJN (of blessed memory) had this to say on the subject:-

"We are in no doubt about the correctness of what the learned appeal judge said in this judgment that there are abundant decisions in the High Court and the West African Court of Appeal on the point that where a court is differently constituted during the hearing of a case, or on various occasions when it met, or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void, The learned Judge obviously had in mind, among others, the following cases: Egba N.A.V Adeyanju (1936) 13 NLR 77; Tawiah III v Ewudzi 3 WACA 52; Otwiwa v Kwaseko 3 WACA 230; Damoah v Taibil 12 WACA 167 and Runka v Kastina N.A. 13 WACA 98."

Similarly, the pronouncement of Kingdom, Chief Justice of Nigeria sitting on the bench of the West African Court of Appeal with Betrides. Chief Justice of Gold Coast and Webber, Chief Justice of Sierra Leone, on the subject of judgment delivered by an improperly constituted court is quite illuminating. In his leading judgment in the case of Nana Tawiah III v Kwasi Ewudzi (1936) WACA 52 at 54-55 the learned Chief Justice said:-

"It is unnecessary for me now to go in detail into merits of the case on the facts, owing to the submission which the defendant/appellant/ respondent's counsel made to the court at the last moment when he realised that he had little hope of successfully resisting the plaintiff/respondent/ appellants' contention that the Provincial Commissioner ought not to have reversed the Tribunal on the facts.

This was to the effect that the whole proceedings before the Tribunal were a nullity, because all the members who sat upon the case and gave judgment were not present throughout the hearing. In the present case it is clear that at least two of the Tribunal members who gave judgment were not present throughout the proceedings, and did not hear all the evidence. This vitiates the whole trial, and in my opinion this Court has no option but to declare the whole proceedings before the tribunal and Provincial Commissioner's court a nullity, and direct that the case be heard de novo in the Tribunal."

Looking at the issue from another angle, the law is well settled that the competence of a court is an essential element in determining its jurisdiction. In Gabriel Madukolu & others v Johnson Nkemidilim & others (1962) All NLR 587, the Federal Supreme Court discussed at some length, the issue of competence and held that any defect in competence is fatal and the proceedings are a nullity, however well conducted and decided. Proceedings at the hearing of a case of course cover or start from the commencement thereof up to and including the delivery of final judgment. In other words, the delivery of judgment in a cause or matter, is part of the hearing of that cause or matter. (See Jeremiah Akoh & others v Ameh Abuh (1988) 7 SC (Part II) 46; (1988) 3 NWLR (Part 85) 696 at 713.)

In the instant case, to answer the question of whether or not the court below was properly constituted from the date the appellant appeal was heard on 5 November 2003 right to the date the judgment of the court was delivered on 22 January 2004, it is necessary to determine from the record whether the proceedings of the court complied with the provisions of sections 247(1) and 294(2) and (4) of the 1999 Constitution.

Section 247(1) says:-

"For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal . . . ."

There is no doubt whatsoever in the instant case that when the appellants' appeal was heard by the court below on 5 November 2003 by a panel of Justices of that court made up of Ogebe, Aderemi and Chukwuma-Eneh, JJCA, that court was properly constituted for the purpose of exercising the jurisdiction conferred upon it to hear the appellants' appeal.

However, whether the constitution of that court which heard the appellants' appeal was maintained throughout the hearing of the appeal up to the date of the delivery of the judgment on 22 January 2004, is what the record of this appeal, answered in the negative. This of course is quite contrary to the provisions of section 294(1), (2), (3) and (4) of the Constitution of the Federal Republic of Nigeria 1999 which states as follows:-

"294 (1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final address and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written judgment;

(3) Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by another Justice whether or not he was present at the hearing.

(4) A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members.

For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that court sits for that purpose."

In compliance with the above provisions of section 294 of the 1999 Constitution, each of the Justices of the court below who heard the appellants' appeal, ought to have reduced his judgment or opinion in writing for delivery in person or by any of the other Justices of the Court on the date fixed for the delivery of the judgment. This is because although a Justice of the Court who did not take part in the hearing of an appeal may lawfully sit on a panel of the court and participate in delivering a judgment or written opinion of another Justice who actually took part in the hearing of the appeal or matter but is unavoidably absent, I must stress however that for such judgment delivered to be valid, it must have been put in writing for delivery by all the members of the panel of the Justices that participated at the hearing of the appeal which in law culminates in the determination of the cause or matter by the delivery of the judgment. Failure to comply with these fundamental requirements of the Constitution and the law as expounded in the various decisions of our courts, renders the judgment a nullity. I am bound by the recent decision of this Court in Ubwa v Tiv Traditional Council and others (2004) 5 SC (Part II) 49; (2004) 11 NWLR (Part 884) 427 at 436 where Kutigi, JSC (as he then was) faced with similar proceedings of the Court of Appeal Jos as in the present appeal, declared the proceedings a nullity in allowing the appeal. That case is on all fours with the instant appeal now under consideration in which I have no option but to declare the Judgment of the court below delivered by the panel of Justices comprising of Galadima, Aderemi and Chukwuma-Eneh, JJCA, on 22 January 2004, also a nullity. I have two reasons for coming to this conclusion. Firstly, the Judgment is not a complete judgment of the Court of Appeal because one of the Justices who heard the appeal had not reduced his judgment or opinion in writing capable of being delivered on the day fixed for the delivery as required by subsection (2) of section 294 of the 1999 Constitution which makes it necessary for the judgments or opinions of the three Justices who heard the appeal to be produced in writing before a complete judgment of the court could validly emerge. Secondly, the judgment of the court of 22 January 2004, was affected by another deadly virus which destroyed it, resulting in turning it into something else other than a judgment of the Court of Appeal, the judgment delivered by Galadima, JCA, who did not sit with the panel of the Justices that heard the parties in this appeal on the date fixed for the hearing of the appeal, certainly affected the competence of the court in the proceedings conducted in the delivery of the judgment which in law is part and parcel of the proceedings in the hearing and determination of the appellants' appeal. This is because an improperly constituted court as regards its members such that no member is disqualified for one reason or another, is not capable in law of exercising the jurisdiction of the court in delivering a valid judgment The reason of course is that any defect in competence is fatal as the proceedings are a nullity, however well conducted and decided. (See Madukolu & others v Nkemdilim & others (supra)). Obviously, a judicial officer, who had not sat in court in that capacity to exercise the jurisdiction of the court in hearing a cause or matter, cannot have the capacity in law to sit in court and write a judgment or opinion to determine a dispute which he did not participate in the hearing. For this reason, this issue is resolved in favour of the appellants in that the judgment of the court below delivered on 22 January 2004, is hereby declared a nullity. The judgment is set aside and the appellants' consolidated appeals numbers CA/L/108/2001, CA/L/109/2001 and CA/L/110/2001 heard by the court below on 5 November 2003, are hereby remitted to the court below for hearing de novo by another panel of Justices of the Lagos Division of the Court of Appeal.

The appeal is accordingly hereby allowed. The appeal having succeeded on the first issue for determination alone, and having regard to the orders I have made remitting the consolidated appeals to the lower court for hearing. I do not find it necessary to go into the remaining issues.

There shall be N10,000 costs to the appellants against the respondent.

KATSINA-ALU, JSC:- I have had the advantage of reading in draft the judgment delivered by my learned brother Mahmud Mohammed, JSC. I agree with it and for the reasons he has given I also allow the appeal and remit the case to the court below for hearing. I abide by the order as to costs.

KALGO, JSC:- I have read in advance the judgment just delivered by my learned brother Mohammed, JSC and I entirely agree with him that there is merit in the appeal and it ought to be allowed.

The most important issue raised by both parties to the appeal and which was extensively argued in their respective briefs, concerned the coram of Justices of the Court of Appeal who delivered the judgment now appealed against. In the appellants' Brief, the issue (1) reads:-

"Whether a panel of Justices different from the panel of Justices that heard argument from the parties, examined the record of appeal, asked vital questions on the 5 of November, 2003 can deliver a valid judgment in this appeal on the 22 January, 2004."

The respondent's issue (a) is substantially the same as that of the appellants above even though differently worded.

By section 247(1) of the 1999 Constitution, for the purpose of hearing appeals before it, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal. This provision gives a minimum only as it could be more in other appeals or matters depending on the nature and circumstances of the appeal or the matter before the court.

This was an appeal from the decision of the High Court of Lagos State and was heard by three Justices of the Court of Appeal, Lagos Division on the 5 of November, 2003, and judgment was reserved to the 22 January. 2004. From the record of appeal (page 101), the Justices that heard the appeal were Ogebe JCA, (Presiding), Aderemi, JCA, (as he then was) and Chukwumah-Eneh, JCA, (as he then was). But on the 22 of January, 2004 the Justices who delivered the judgment (page 102 of the record) were Galadima; JCA, and Aderemi, JCA, (as he then was) and Chukwuma-Eneh, JCA (as he then was). This clearly means that Galadima, JCA, who did not take part in the hearing of the appeal on 5 November, 2003,. when it was adjourned for judgment, wrote and delivered a judgment concurring with the leading judgment of Aderemi, JCA (as he then was) have read the said judgment of Galadima, JCA (page 126) of record and it appears to me that he has dealt with the main issues in controversy between the parties to the appeal even though he did not participate in the hearing therein. This is not acceptable in judicial adjudication. And although section 247 (1) of the 1999 Constitution gives a minimum of three Justices in this type of appeal, it is not open for any other Justice who did not take part in hearing an appeal to just appear either in substitution for or in addition to those who heard the appeal to write and deliver a judgment in the appeal. This will breed injustice and miscarriage of justice may, in my respectful view, likely occur. This is because a person or authority that did not give you a hearing on a complaint brought before him against you, may not likely determine or decide your case justly and fairly. The principle of fair hearing which is fundamental in judicial process is also breached. (See Orugbo v Una (2002) 9-10 SC 61; (2002) 16 NWLR (Part 792) 175 at 199).

It is also well established and trite law that a decision of a court is valid only when that decision was: made by a competent court, The question then is, was the Court of Appeal competent when it delivered the appeal on 22 January, 2004 in this appeal? In the case of Madukolu v Nkemdilim (1962) 1 All NLR 587, this Court held that a court is competent when:-

"(1)    It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or the other;

(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; and

(3)    The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction."

The court ended this by saying that:-

"Any defect on competence is fatal, for the proceedings are a nullity, however well conducted and decided; the defect is extrinsic to adjudication."

From the above, points (1), (2) and (3) go together. In the circumstances of this case, points (2) and (3) are fully satisfied as the court has jurisdiction and the appeal is competent and properly filed. But point (1) which is very important cannot be satisfied in this case because although three Justices of the court are qualified to hear and determine the appeal, one of them is not qualified because he never heard the appeal and for that reason alone, he is disqualified. This is a defect in the competence of the court and therefore the proceedings of the court with him taking part are a nullity however well conducted. I accordingly so hold and resolve this issue in favour of the appellants. I also agree that with the resolution of this issue, it is not necessary to consider other issues raised in the appeal.

For the above, and the more detailed reasons given by my learned brother Mohammed, JSC in the leading judgment, I also find merit in the appeal and I allow it. I set aside the decision of the Court of Appeal and order a hearing of the appeal by another panel of the Court of Appeal. I abide by the order of costs in the said judgment.

TOBI, JSC:- I have read in draft the judgment of my learned brother, Mohammed JSC and I agree with him that this appeal should be allowed.

The relevant facts only relate to the proceedings in the Court of Appeal. On 5 November, 2003, Justices J.O Ogebe, P.O Aderemi and C.M. Chukwuma-Eneh heard oral argument on the appeal and reserved judgment. On 22 January, 2004, judgment was delivered by Justices Suleiman Galadima (Presiding), P.O. Aderemi and C.M. Chukwuma-Eneh.

The crux of the dispute is that the changing of hands by Justices Ogebe and Galadima invalidated the judgment and made it a nullity. This is the position taken by the appellants. They relied on Ubwa v Tiv Area Traditional Council (2004) 11 NWLR (Part 884) 427. The respondent has taken a different position and it is the opposite position. It is that the judgment is valid and not a nullity. Reliance is placed on Shuaibu v Nigerian-Arab Bank Ltd. (1998) 4 SC 170; (1998) 5 NWLR (Part 551) 582.

Section 247(1) of the 1999 Constitution provides in part that for the purposes of exercising any jurisdiction conferred upon the Court of Appeal by the Constitution or any other law, the court shall be constituted by not less than three Justices. The word shall in section 247(1) of the Constitution has the force or carries the force of command, obligation and peremptory. The word in the subsection does not convey or admit a discretion in the sense that a lesser number of Justices can make up the panel. In other words, for the purposes of exercising the Jurisdiction of the court, the court must be constituted of not less than three Justices, that is the minimum. Although the word "shall" could in certain circumstances be construed as "may", section 247(1) is not such circumstance, as the subsection conveys the mandatory "shall".

Section 294(2) of the Constitution provides that each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion. By section 294(3), a decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members. In the context of the Court of Appeal and in the content of this case, the majority opinion is that of two members of the Panel. For the purpose of delivering a decision under section 294, the Supreme Court or the Court of Appeal shall be deemed to be duly constituted if at least one member of that court sits for that purpose. That is the provision of section 294(4) of the Constitution. In other words, a judgment of the Court of Appeal can be delivered by a single Justice.

Where the Constitution provides for a minimum number of Justices to form a Panel and sit in the Court of Appeal, anything short of that minimum will make the Panel incompetent and will result in the nullity of the proceedings, however ably conducted. A court is competent when inter alia, it is properly constituted as regards membership and qualification of the members of the bench and no member is disqualified for one reason or another. (See Madukolu v Nkemdilim (1962) All NLR 587; Maiwa v Abdu (1986) 1 NWLR (Part 17) 437; Ajao v Alao (1986) 5 NWLR (Part 45) 802 and The Attorney-General of Anambra State v The Attorney-General of the Federation (1993) 6 NWLR (Part 302) 692).

Learned Counsel for the respondent relied on sections 247(1), 294(2), (3) and (4) of the Constitution and submitted that the Court of Appeal at all relevant times had jurisdiction to hear and deliver the judgment, the subject of this appeal.

Learned Counsel urged the court to accept the decisions of Justices Aderemi and Chukwuma-Eneh as the majority opinion. I am not with counsel. One cannot talk of a majority opinion in a situation where the judgment delivered is invalid and a nullity ab initio.

The issue in this appeal is that the involvement of Justice Galadima in the 5 November, 2003 decision of the court makes the judgment a nullity. There cannot be a majority opinion in a judgment which is a nullity. In other words, one cannot procure or salvage a majority opinion from a judgment which is a nullity. That is a legal impossibility.

I am at one with my learned brother and learned Counsel for the respondent that the case of Shuaibu v Nigerian-Arab Bank Ltd is distinguishable from that of Ubwa v Tiv Area Traditional Council (supra). I should perhaps extend this

to say that Shuaibu is clearly distinguishable from this case. In Shuaibu, the following is recorded at page 584 on the facts:-

"On 21st February 1991, the appeal was argued before Hon. Justices Ndoma Egba, Mukhtar and Okezie and judgment was reserved to 10th April 1991. On the said 10th April 1991, the same three Justices again sat and the judgments of the court were read and the appeal allowed. However, the judgments that were read were those of Hon. Justices Ndoma-Egba, JCA, Y.O. Adio, JCA, who was not in the panel that heard the appeal in which he wrote as follows . . . and signed same and that of Hon. Justice Okezie, JCA, who also concurred with the leading judgment."

The above scenario is different from that of Ubwa and this case. In Ubwa, Justices Akpabio, Umoren and Chukwuma-Eneh heard the appeal and reserved judgment. The judgment was delivered by a panel of Justices Akpabio, Umoren and Mangaji. Delivering the lead judgment of this Court, Kutigi, JSC, (as he then was) said at page 436:-

"The entire proceedings before the Court of Appeal were a nullity because all the members who heard the appeal and those who wrote the judgments were not the same. In other words, all the members who wrote the judgments were not all present throughout the hearing of the appeal which includes delivery of judgment. The judgment of the court of appeal delivered on 14th February, 2000 is therefore a nullity. It is accordingly set aside. It is hereby ordered that the appeal No.CA/J/12/95 shall be heard de novo by another panel of Jos Division of the Court of Appeal."

Kalgo, JSC, said at page 437:-

"In the instant appeal, it is very clear that on the 18th November, 1999 when this appeal was heard de novo by the court of appeal, the membership of the court on that day consisted of Akpabio, Umoren and Chukwuma-Eneh, JJCA, and the judgment was later delivered on 14th February, 2000. but looking at pages 240-253 of the record of appeal, it was abundantly clear that those who wrote the judgment were Akpabio, JCA, (Leading), Umoren and Mangaji, JJCA, (concurring). This means that Mangaji, JCA who did not take part in the hearing of the appeal on 10th November, 1999, wrote a concurring judgment in the appeal and although the court was properly constituted of three Justices on 14th February, 2000, the judgment which was delivered was not by those who heard the appeal on 18th November, 1999. That is contrary to the provisions of the 1999 Constitution and all principles of law and vitiates the whole proceedings."

I said at page 438:

"In this appeal, the appeal was heard by Akpabio, Umoren and Chukwuma-Eneh, JJCA, on 18th November, 1999 when judgment was reserved to 27th January, 2000. The judgment was not read on 27th January, 2000 and it was further adjourned to 14th February, 2000. On 14th February, 2000, the judgment was delivered by a panel of Akpabio, Mangaji and Umoren, JJCA. The judgments that were delivered were those of Akpabio, Umoren and Mangaji, JJCA. As seen from above, Mangaji, JCA, was not in the panel that heard the appeal. It was Chukwuma-Eneh, JCA, who was in the panel with the two others and not Mangaji, JCA.

In view of the fact that Mangaji, JCA, was not in the panel, he could not have written any judgment for delivery. In the circumstances, the entire proceedings in the Court of Appeal are a nullity. I set aside the judgment of the Court of Appeal."

As in Ubwa, where Justices Chukwuma-Eneh and Mangaji unknowingly changed places, so in this appeal where Justices Ogebe and Galadima unknowingly changed places, so in this appeal where Justices Ogebe and Galadima unknowingly changed places. The Justices cannot be blamed in the light of the very crowded daily cause list and the resultant work load on the Justices.

Learned Counsel called in aid the case of Disu v Ajilowura (2006) 7 SC (Part II) 1; (2006) 14 NWLR (Part 1000) 783 where this Court delivered the opinion held by Pats-Acholonu, JSC in conference before he died. He argued that as in this case. "the panel that delivered the judgment of the court was not the same as the panel that heard the appeal in the sense that only six of the seven Justices contributed and read the written judgments in court and the seventh justice did not write any judgment." Disu is distinguishable from this case in two aspects. First, the seventh member of the panel, Pats-Acholonu died before the judgment was delivered. By our rules of court, his brother Justices are competent to pronounce his opinion at conference and this was what Kutigi, JSC (as he then was) did. Second, in this case, Justice Galadima did not deliver the judgment of or for Justice Ogebe. He delivered the judgment for himself in an appeal that he did not participate.

It is for the above reasons and the more detailed reasons of my learned brother, Mohammed, JSC that I too allow the appeal. I order that the appeal be sent back to the Court of Appeal for rehearing. I award N10,000 costs in favour of the appellants.

OGBUAGU, JSC:- This is an appeal by the first and second appellants against the Judgment of the Court of Appeal, Lagos Division, (hereinafter called "the court below"), delivered on 22 January, 2004 dismissing the first and second appellants' appeal and affirming the trial court's Judgment which dismissed the first and second appellants' appeal seeking to set aside the trial court's judgment.

Dissatisfied with the said Judgment, the first and second appellants, have appealed to this Court on two (2) grounds of appeal which without their particulars, read as follows:-

"(a)    The Panel of Justices of the Court of Appeal that delivered Judgment in this suit on the 22 January, 2004 erred in Law in delivering the said Judgment not being the same panel of Justices that heard argument, listened to submissions and asked vital questions from all counsel on record on the 5 November, 2003.

(b)    The Learned Justices of the Court of Appeal erred' in Law in not making one specific pronouncement on the challenged jurisdiction of the Lagos High Court to adjudicate over the suit in view of the highlighted features of the case."

I note that on 4 December 2006 when this appeal came up for hearing. Ogunde, Q.A.R, Esq, - who announced his appearance for the third respondent told the court that they did not file a Brief, but that they are supporting the first and second appellants.

Although, the first and second appellants have formulated three (3) issues for determination, while the respondent, also formulated three (3) issues for determination, but in my respectful view, Issue i. of both parties, is actually, the crucial and important one that will take care of this instant appeal. For the avoidance of doubt, I will reproduce the respective issues which are substantially similar but differently couched.

For the first and second appellants, their issue (i) reads as follows:

"Whether a panel of Justices different from the panel of Justices that heard argument from the parties, examined the Record of Appeal, asked vital questions on the 5 of November, 2003 can deliver a Valid Judgment in this Appeal on the 22 January, 2004?"

This issue is covered by ground (a) of the grounds of appeal. On the part of the respondent, its issue (i) reads as follows:

"Whether the judgment of the Court of Appeal delivered on January 22, 2004 by their Lordships Coram Suleiman Galadima, P.O. Aderemi and C.M. Chukwuma-Eneh, JJCA became invalid by reason of the fact that Honourable Justice J.O. Ogebe who participated at the hearing of the appeal was not on the panel that delivered the judgment".

The facts in this appeal, are not in dispute. Three consolidated appeals Nos. CA/L/108/2001, CA/L/109/ 2001 and CA/L/110/2001 were heard by a Panel of Justices of the court below: Coram - Hon. Justice Ogebe - Presiding. Hon. Justices Aderemi and Chukwuma-Eneh (both now of this Court) on 5 November, 2003 and who reserved Judgment to 22 January 2004. But surprisingly, on that 22 January, 2004, the Panel that delivered the Judgment of the court, were made up of Justices Galadima Aderemi and Chukwuma-Eneh. Aderemi, JCA (as he then was), delivered the lead Judgment, while Galadima, JCA delivered his concurring Judgment which appears at pages 126 and 127 of the Records. Chukwuma-Eneh, JCA (as he then was), also delivered his concurring Judgment which appears at pages 128 and 120 of the Records. I note that in the said concurring judgment of Galadima, JCA, the following appear inter alia:

"I have read in advance the lead judgment of my learned brother ADEREMI, JCA. He has exhaustively dealt with the essential principles, applicable laws, practice and procedure governing garnishee proceeding in this Country and in England. I make this emphasis as well . . .

In this vein I agree with the lead judgment that the appeal lacks merit and it should be dismissed, I abide by order made as to costs contained in the lead judgment." (The underlining mine.)

It is not in dispute that Galadima, JCA was never in the Panel that heard the appeal on 5 November, 2002. How he came to preside and write and deliver in the open court, a Judgment in an appeal he never heard or ever saw the learned Counsel who appeared at the hearing to argue the appeal, has not been explained in the Records. Why Ogebe, JCA who presided at the said hearing, never wrote any Judgment in respect of the very appeal that was argued before him and his two colleagues is one of the unexplained wonders or puzzles glaring before us in this appeal. What is more worrisome to me, is that this appeal, is being contested on this simple and incontestable issue by the learned Counsel for the respondent who has been winning in the two lower courts. His unacceptable reason and which with respect, is grossly misconceived, is his reliance on the provisions of section 294(2), (3) and (4) of the 1999 Constitution which reads as follows:

"Section 294(2) - Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion."

"Section 294(3) - 1 decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members."

"Section 294(4) - For the purpose of delivering its decision under this section, the Supreme Court or the Court of Appeal shall be deemed to be duly constituted if at least one member of that court sits for that purpose."

For section 294(3), the learned Counsel for the respondent, cites and relies on the case of Shuaibu v Nigeria-Arab Bank Ltd (1998) 4 SC 170; (1998) 5 NWLR (Part 551) 582, (it is also reported in (1998) 4 SCNJ 109) per Ogundare, JSC (of blessed memory) and Wah, JSC. In my respectful view, the above case, is distinguishable from the instant case, the facts and circumstances are not and cannot be the same.

Section 294(4), has be given judicial support in the case of Okino v Obanebira & 4 others (1998) 12 SCNJ 27 - per Iguh, JSC, while referring to section 258(2) of the 1979 Constitution. In other words, it will not be necessary, for all the Justices that heard an appeal, to be present during the delivery of the Judgment. Indeed and in fact, one Justice, can deliver the Judgment of the Justices in the Panel that heard the appeal.

I want to state straightaway, with respect, that the submission in the respondent's Brief by Olusegun O. Jalaawo, Esq., that because three Justices, heard the appeal and that on the day of the judgment, three Justices sat and delivered the judgment, the provision regarding quorum was fully satisfied, is completely misconceived and it amounts to a gross lack of appreciation of what is the real issue or the crux of the appellants' complaint, and what it is all about. That three Justices sat and delivered the judgment, is certainly not the issue in controversy. In fact and indeed, this does not arise. The point that is not in dispute and is conceded by the learned Counsel for the respondent, is that Galadima, JCA who did not participate in the hearing of the appeal, wrote a concurring judgment in an appeal that he never saw the counsel for the parties and did not listen to their respective addresses. Is it right'? One may ask the learned Counsel for the respondent. Does the learned Counsel for the respondent, as a member of the legal profession and who is also a minister in the temple of justice, in defence of his integrity, have the moral and professional conscience, not to support something or an act that is an antithesis of justice? It will not cost him anything including his fees, I believe, to advise his client, that what happened is/was really unfortunate. It was inadvertent. Everyone of us at one time or the other, make human mistakes. The pressure of work or workload in the Appellate Courts, is responsible for such mistakes which I concede, is not a slip. If the appellants had acquiesced to the "irregularity" as contended by the learned Counsel for the respondent, why then this appeal? I or one may ask him.

However, it is now settled that a Judgment delivered by a Panel, where one of them, did not hear the argument nor was he/she present at the hearing is a nullity, Period! (See the cases of Adeigbe & another v Kusimo & others, (1965) All NLR (1990) (Reprint) 260 at 263 - per Ademola, CJN, citing other cases therein and Ubwa v The Traditional Council (2004) 11 NWLR (Part 884) 427 at 436 - per Kutigi (JSC, now CJN).) I wish to add, that what happened in the said judgment of the court below, is/was not an irregularity. It is/was a fundamental error that amounts/amounted to a nullity, i.e, it is null and void. (See also the case of Nana Tawiah III v Kwasi Ewudzi (1936) 3 WACA 52 at 54-55 - per Kingdom, CJN.)

Before concluding this judgment, I must confess that my reading of the respondent's Brief and the totality of the submissions therein, raises my eyebrow. I have mentioned some of the features or submission therein. The last one I wish to mention, is the submission in paragraphs 4.1.9. to 4.2.7. It is submitted that because there was a "Pronouncement" of the opinion of Pats-Acholonu, JSC (of blessed memory) pursuant to the Proviso in section 294 (2) of the said Constitution, in the case of Disu & 13 others v Alhaji Ajilawura (2006) 14 NWLR (Part 1000) 783 at 809. It is also reported in (2006) 7 SCNJ 134 at 157 and (2006) 7 SC (Part II) 1, that:-

"4.2.2 What is of great relevance here is that the panel that delivered the judgment of the court was not the same as the panel that heard the appeal in the sense that only six of the seven justices (sic) contributed and read their written judgments in court and the seventh Justice did not write any judgment."

"4.2.3 The said judgment was read and has since been reported in series of law reports in the country. This was because your Lordship were convinced that the available judgments and the opinion of the seventh Justice which was not reduced into writing was sufficient to constitute a valid judgment."

"4.2.4 Your Lordships in pronouncing the opinion of your deceased learned brother, Ignatius Chukwudi Pat ( sic) as expressed at the conference relied on the provisions of section 297(2) of the Constitution of the Federal Republic of Nigeria, 1999."

"4.2.5 It would not have been possible to deliver the judgment had your Lordships allowed the technical interpretation of the said provision to prevail over the liberal interpretation which leaned in favour of substantial justice and which saved a lot of judicial time without working any hardship on the parties or occasioning any miscarriage of justice."

Learned Counsel then reproduced the provision of section 294(2) in full, including the proviso and continued thus:-

"4.2.6 We respectfully submit that credence can only be lent to the above decision of this Honourable Court if the interpretation which we urge on this Court of section 294(3) is correct."

"4.2.7 We shall therefore respectfully urge your Lordships to hold that the decision of the lower court in the circumstances of this Appeal is valid."

Now, the said Pronouncement, reads/ appears as follows:-

"Pronouncement (section 294(2) of the Constitution): Hon Justice I. C. Pats-Acholonu who participated in the appeal agreed at the conference to dismiss the appeal." (The underlining mine.)

This pronouncement or reading, may be by another Justice whether or not he was present at the hearing or one may ask again, how can the said pronouncement or reading, have any relevance with/to the real issue in this appeal? Honestly, what has disturbed me is that the respondent's Brief, comes from or was prepared in Messrs Rickey Tarfa & Co. Chambers. Tarfa Esq, (SAN), is a solid and brilliant Advocate. To have allowed this Brief which bears his name, to be filed and adopted in this Court, is most regrettable and unfortunate to say the least. I will say no more about the said Brief. I plead with Senior or Principal/Leading Counsel in the various Chambers, to please, set the Briefs prepared in their names or Chambers, before they are filed in court. They should not take cover in the settled principle of law about the attitude of the two Appellate Courts, to an Inelegant Brief i.e. to use it for whatever it is worth. (See the cases of Tukur v The Government of Taraba State & 2 others (1977) 6 NWLR (Part 510) 549 at 569, (1997) 6 SCNJ 81; Guarara Securities and finance Ltd v T.I.C. Ltd (1999) 2 NWLR (Part 589) 29 at 42-43 C.A. and Sofolahan & 5 others v Chief Folakan & 12 others (1999) 10 NWLR (Part 621) 86 at 96 CA)

It is for the foregoing and the fuller and detailed reasoning and conclusion in the lead judgment of my learned brother Mohammed, JSC that I too allow the appeal which is meritorious and declare the said Judgment of the court below delivered on 22 January, 2004 a nullity. I also set aside the said judgments and do hereby also, remit to the court below, the said consolidated suits to be heard de novo by another Panel of that court. I abide by the consequential order in respect of costs.