JUDGMENT

(Delivered By Nwali Sylvester Ngwuta, JSC)

This is an appeal against the decision of the Court of Appeal, Lagos Division which set aside the judgment of the High Court of Lagos State that was delivered in the chambers of the learned trial Judge, E. F. Longe J.

The respondent as plaintiff claimed against the appellant as defendants as per their Amended Writ of Summons dated 3oth day of October, 1990 thus:

1. A declaration that the parcel of land delineated in Plans Nos. LA/127/CA/88 and LA/144/CA 88 drawn by in Ademola Ashipa belongs to the plaintiff's family.

2. The sum of N5,000.00k being damages for trespass committed by the defendants jointly and severally against the plaintiff's farmland on 12th October, 1990 by destroying the cassava, maize, tomatoes, okro, pineapples and kola-nut trees cultivated thereon.

3. An injunction restraining the defendants by themselves, their servants howsoever from further acts of trespass on the said land.

BACKGROUND FACTS

The appellants' claim as per the Amended Writ of Summons before the trial court are for declaration of title to land, injunction and damages for trespass.
The appellants sued in representative capacity and the respondents were also sued in representative capacity.
The appellants filed an Amended Statement of Claim dated 13th December, 1994 and filed an Amended Reply dated 12th February, 1992. The respondents filed an Amended Statement of Defence dated 19th January, 1998.
 
At the trial, the appellants called 9 witnesses whilst the respondents called 6 witnesses. Upon the close of the defence both counsel delivered final addresses and judgment was reserved for 28th February, 2001, Judgment was not delivered on that day, the learned trial judge delivered a prejudgment Ruling wherein he ordered counsel to further address the court on an area of conflict. In compliance with the pre-judgment both counsel further addressed the court on 16th May, 2001.

At the close of the further addresses of both counsel, the learned trial judge ordered a visit to the locus suo motu. Parties and their respective counsel went to the locus with the learned trial judge. At the locus, the trial judge made personal observations and took statements from people thereat. The learned trial judge thereupon reserved judgment for 27th June, 2001. Judgment was not delivered on 27th June, 2001, but on 28th June, 2001. Same was delivered in the chambers of the learned trial judge for the reason that there was power outage.

In Chambers of the learned trial judge, he recorded the appearance of parties and counsel and stated in writing why he was delivering the judgment in his chambers.

The defendants/respondents being dissatisfied with the judgment appealed to the Court of Appeal, Coram: K. B, Aka'ahs, M, D. Muhammad and M. L Garba JJCA and in a lead judgment delivered by M, D. Muhammad JCA (as he then was) set aside the judgment of the trial High Court on the ground that a judge's chambers was outside the constitutional provision of a public place where the judgment could be delivered.

The appellant aggrieved has come before the Supreme Court challenging the decision of the Court of Appeal contending that the Judge's Chambers was in order for the delivery of the judgment. The respondent cross-appealed.

On the 26 day of April, 2016 learned counsel for the appellant, I. O. Ajomo Esq. adopted the Brief of Argument filed on the 28/2/2006 which was settled by Titiola Akinlawon. In the Brief were distilled three issues for determination which are thus:

i. Having tacitly found that the Judge's chambers in the case at hand was accessible to the public, whether the Court of Appeal was guilty of a fatal misdirection or error, not to have categorized the chambers as a public place for purposes of Section 36(3) of the 1999 constitution, simply because it was not ordinarily accessible (Grounds ii and iii).
 
2. Should the Court of Appeal have applied the decision in Oyeyipo v Oyinloye as opposed to misapplying the decisions in Nigeria Arab Bank v Barri Engineering. Oviasu v Ovrasu and Abrashi v COP (Grounds I, iv, v, vi ).

3. Assuming "arguendo" that delivery of the judgment in chambers was a breach of the Constitution, what order ought the Court of Appeal have made in the circumstances (Grounds vii).

Otunba Kayode Ogunjobi learned counsel for the respondent adopted their Brief of Argument filed on the 7/2/08 and deemed filed on the 6/5/09 and he raised three issues for determination, viz:

1. Whether the Court of Appeal was right to have set aside the judgment of the lower court delivered in chambers in violation of section 36 (3) of the Constitution of the Federal Republic of Nigeria, 1999.

2. Whether the Court of Appeal was right in applying Nigerian Arab Bank v Barri Engineering. Oviasu v Oviasu and Abrashi v COP as opposed to Oyeyipo v Oyinloye and whether the court correctly applied the cases.
3. What is the effect of a judgment delivered in breach of constitutional provision,

I need to state that the respondents cross-appealed and argued the cross-appeal in their Brief of Argument earlier referred to in the main appeal that is the Brief filed on 7/2/08 and deemed filed on the 6/5/09.

The appellants/Cross-respondents filed on 28/8/09 a Brief of Argument settled by Titilola Akinlawon.
 
MAIN APPEAL

In my humble view, the issues as crafted on either side are in effect asking the same questions and I see issue 1 on both sides are sufficient to settle this appeal and that of the respondent being simply couched, I shall utilise it.

ISSUE 1
Whether the Court of Appeal was right to have set aside the judgment of the lower court delivered in chambers in violation of section 36 (3) of the Constitution of the Federal Republic of Nigeria, 1999.

In urging this court to allow the appeal, learned counsel for the appellant contended that applying the proper test of "actual accessibility" the judgment of the trial court was delivered in public and that the Supreme Court had in the cases of Oviasu v Oviasu (1973) 1 ALL NLR 730; Nigerian Arab Bank v Barri Engineering (1995) 8 NWLR (Pt. 413) 257 as opposed to Oveyipo v Ovinlove (1987) 1 NWLR (Pt. 50) 356 adopted the test of actual accessibility but held that the circumstances in the former two cases did not pass the test.

That the proper order the Court of Appeal ought to have made was to set aside delivery of the judgment and not the proceedings, as judgment per se did not occasion any miscarriage of justice.

That in the alternative in so far as they did not adopt the test of actual accessibility, the cases of Oviasu v Oviasu and Nigerian Arab Bank v Barri Engineering (supra) ought to be departed from and overruled whilst the latter ought to be nullified having not been delivered by a full panel.

Learned counsel for the appellant relied on a number of cases such as: Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) 1 ALL ER 705; Clement v Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 54; Ifezue v Mbadugha (1984) 15 NSCC 314 etc.
 
For the respondents, learned counsel contended that neither Oviasu v Oviasu nor Nigerian Arab Bank v Barri Engineering (Nig.) Ltd. is an authority for the proposition that delivery of judgment in chambers under any circumstance cannot amount to delivery in public and the absence of public was the rationale for vitiating the proceedings and judgment in both cases. That where proceedings are conducted in private and judgment delivered in public, the judgment is null and void. He said conversely where proceedings were held in public and judgment was not delivered in public, the proceedings on which the judgment is based together with the judgment are null and void. That the reason for that is that there is a fundamental breach of the provision of the constitution in relation to the adjudication and such proceedings so conducted amounts to grave injustice. He cited Abrashi v COP (2005) 5 NWLR (Pt. 917) 36 at 49, NEPA v Onah (1997) 1 NWLR (Pt. 680); Awuse v Odili (2004) ALL FWLR (Pt, 212) 1611 at 1648.
 
The appellant's counsel urges the appeal be allowed on the fact that there was "actual accessibility" and so it can be taken that the judgment was delivered in public. That the proper order to be made is a setting aside of the delivery of the judgment while the proceedings survived.

Respondent's stance is that the proceedings having been conducted in public and the judgment must be delivered in public, failing which as in this instance where the judgment was delivered in private, all proceedings, judgment inclusive are a nullity as a constitutional breach had arisen.

At the root of this contest is the application of section 36(1) and 3 of the 1999 constitution which stipulates thus:

"1 In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality, 3 The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in Subsection (1) of this Section (including the announcement of decisions of the court or tribunal) shall be held in public".

The Court of Appeal or court below in its judgment anchored by Musa Dattijo Muhammad JCA (as he then was) in its interpretation of Section 36(1) and (3) of the constitution of the Federal Republic of Nigeria 1999 held thus:
"What follows from a community reading of the above provisions is that a court or tribunal must, in their proceeding in relation to the civil rights and obligations of persons, conduct such proceedings and pronounce their decisions in that regard in public. The appellant had argued and relied on the dicta of the Justices of the Court of Appeal as well as the Supreme Court in their decisions in Nigerian Arab Bank v Barri Engineering (Nig,) Ltd. and Oyeyipo v Oyinloye (supra) which tend to suggest that what "a public" place is as envisage under Section 36(3) of the 1999 Constitution, is a question of fact."

The lower court stated further at page 475 as follows:
"It is further submitted that given the particular facts of the instants case, the judge's chambers wherein the decision of the lower court was pronounced was such a public place in the context of S.36(3).
The decision of Oyeyipo v Oyinloye must be out rightly discounted from this discourse. The rationes decidendi in Oyeyipo v Oyinloye is on the constitutionality of the Supreme Court's right to sit in chambers as provided by the Apex Court's rules of practice. It never was an issue in that case, as it presently is. whether or not sitting in chambers to pronounce decision satisfies the provisions of S.36(1) and (3) of the 1979 Constitution and Order 43 Rule 1 of the adjectival law of the lower court.

And coming to the decision in Barri's case, this court per Ayoola JCA, (as he then was) was correct in stating that whether or not a place is a public   place   within   the   context of S.36(l) and (3) of the 1979 Constitution, now S.36(l) and (3) of the 1999 Constitution, is a question of fact. What the Court did not do then was to internalize the rule of evidence which dispenses of proof of such facts that should be taken judicial notice of in the course of proceedings. All judicial officers and indeed the genuine consumers of the services of such officers, who are privy to the conduct of judicial functions, know that the Judge's Chambers is not a place that can, without pretensions, be called a public place where persons have the rights to freely enter into and exit from. By Section 74(m) of the Evidence Act, judicial notice should be taken of "the course of proceedings" in the lower court. And the course has been that proceeding including pronouncement of decision in the State or Federal High Courts, have always been conducted in the open court rather than the Chambers of lower court resorted to in the delivery of its judgment. The Supreme Court's decision in the Barri's case is a profound restatement of this practice and recognition of same"

Indeed, just as the court below found, a judge's chambers cannot be classified as a regular courtroom or a place to which members of the public have right to go in and out since such access is dependent on the invitation or consent of the judge or maybe by his permission. It therefore implies that a constitutional right to which members of the public apart from the litigants and counsel are entitled cannot be at the whim of a Judge whatever the status of the court the judge is presiding over A part of the court's proceedings which ought to be public and is conducted in the confines of the judge's chambers is clearly one done in secrecy and detracts from the impartiality, independence, publicity and unqualified respect which enshrouds justice given openly without fear or favour. Its acceptance by the public at large and the confidence it demands depend on these qualities which must be strictly adhered to. See Barri's case (supra). What occurred in the trial High Court was a clear aberration, an irregularity so profound as to be incurable and a situation that is now well settled up to recently in this court's decision in Abrashi v COP (2005) 5 NWLR (Pt. 917) 36 at 49 which went along the decisions in Oviasu v Oviasu (supra) Nigerian Arab Bank v Barri Engineering (Nig.) Ltd. (supra).
 
It is to be noted that the reason advanced by the appellant in line with what the trial Judge stated to be his reasons for delivering the judgment in chambers being the possible effluxion of time to deliver judgment within the 90 days time frame, as reason that cannot create the waiver of having the judgment in the open and in public as the provisions of section 36(1) and (3) are too deep seated as cannot bow to such things as a waiver as it is a mandatory stipulation. This is all the more so since Section 294 of the Constitution that has prescribed the time frame within which judgments are to delivered has provided for the allowance of an explanation and where no injustice would occur to any party for the breach to be waived.
"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 addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

The provision above has been interpreted to have the effect of the judgment delivered after 90 days not automatically invalidated as long as no miscarriage of justice has ensued.
Also to be stated is that the court at all times must act within its vires and where it lacks the jurisdiction to carry out any act, any such act is a nullity. Therefore since the Constitution has not granted the trial court the jurisdiction to take the proceedings and judgment in the private confines of the judge's chambers, the judge acted in futility when he set out to deliver the judgment in his chambers. He also did not have the power to give consent for whoever to come into his chambers to hear his pronouncement of the decision of court. See Madukolu v Nkemdilim (1962) 2 SCNLR 341 and Atologbe v Awuni (1997) 9 NWLR (Pt. 522) 536.
 
For effect, it needs be stated that the provisions of Section 36(1) and (3) of the 1999 constitution are such that being a public right neither party to the litigation can waive the right or adjust it as it is a right donated by the constitution. See Ngwo v Monye (1970) 1 ALL NLR 91; Ofune v Okoye (1966) 1 ALL NLR 94.

Finally I would say there is nothing upon which I can hinge a departure from what the Court of Appeal did in that the entire proceedings of the trial court including that judgment had been vitiated as a result of the trial court's breach of Section 36(3) of the 1999 Constitution when it pronounced its decision in chambers and the conclusion is that the Court of Appeal was right in allowing the appeal before it and setting aside the entire proceedings of the trial High Court including the judgment. Therefore this appeal Jacks merit and is dismissed as I uphold the decision of the court below setting aside the decision and proceedings of the trial High Court.

CROSS APPEAL

The Notice of the Cross-Appeal and grounds without the particulars are thus:

The respondents in the main appeal and now cross appellants identified a single issue which is thus:
Whether aside of its delivery in chambers the judgment of the trial court is otherwise valid.

The appellants in the main appeal and cross-respondents herein crafted a sole issue which is as follows:

Whether it was a misdirection to hold that in consequence of the delivery of the judgment in chambers vitiating the entire proceedings "there is nothing left in the proceedings of the court to which other issues formulated by the parties to the appeal would be considered.
 
Clearly the question raised herein is whether or not the judgment delivered in chambers of the judge is valid or not.
Canvassing the position of the cross-appellants, learned counsel said the breach of section 36(3) of the 1999 constitution in the instant case does not in any way affect the correctness or otherwise of the decision and so the court below ought to have relied on this court's decision in Alidu Adan v National Youth Service Corps (2004) (2004) ALL FWLR (Pt. 223) 1850 at 1857 and considered the three issues raised by the respondents/cross-appellants relating to the merit of the judgment itself.

For the Cross-respondents, learned counsel submitted that there was no misdirection in what the Court of Appeal did and that the entire proceedings are vitiated for failure to comply with the constitutional provisions means that all other issues are academic and nothing remains to be determined by the court He cited English Exporters (London) Ltd v Ayanda (1973) 3 SC 51 at 56.
 
This Cross-appeal is not one to waste any time with, since the implication of the outcome of the main appeal which has been dismissed is that there is nothing on which this Cross-appeal can be founded, the entire proceedings of the trial high Court having been vitiated. The only option open is a striking out of this cross appeal and it is hereby struck out.

In the end the appeal having been dismissed, the cross-appeal struck out. Parties are to bear own costs.

NWALI SYLVESTER NGWUTA, JSC I read before now the lead judgment just delivered by my learned brother, Mary U. Peter-Odili, JSC. Based on the reasoning in the lead judgment I agree that the appeal is bereft of merit and this conclusion rendered the cross-appeal an academic exercise.
Notwithstanding the reasons stated in the judgment of the trial Court, the delivery of the judgment in chambers is a breach of the provision of Section 36 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Proceedings held in chambers including the delivery of judgment cannot be said to have been "held in public" within the intendment of Section 36 (3) {supra). The Court below was right to have set aside the proceedings as null and void.
In view of the above and the fuller reasons in the lead judgment I also dismiss the appeal for lack of merit. I also strike out the cross-appeal from which the cross-appellant stand to derive benefit.

Appeal dismissed.
Cross-appeal struck out.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN. JSC I have had the benefit of reading in draft the judgement of my learned brother, MARY UKAEGO PETER-ODILI, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I wish to add a few words in support of the lead judgment.
The brief facts of the case relevant to this appeal are that at the conclusion of trial before the High Court of Lagos State, Ikeja Judicial Division, which included oral and documentary evidence, the case was adjourned to 27/6/2001 for judgment. The judgment was not delivered on that day. The following day, 28/6/2001, judgment was delivered by the learned trial Judge in chambers. He made the following note at page 205 of the record:
"This is the second day that this judgment could not be read in open court because there was no electricity in the court room we therefore decided with consent of the two parties counsel to read it in chambers." (Emphasis mine)

The defendants/respondents were dissatisfied with the judgment and appealed to the court below on several grounds. On 4/7/2005, the court below allowed the appeal and set aside the entire proceedings as well as the judgment delivered therein for being in violation of Section 36 (3) of the 1999 Constitution. The appellant is dissatisfied with this decision and has appealed to this court. Both parties filed and exchanged briefs of argument and each distilled three issues for determination, which have been set out in the lead judgment.
 
The crux of this appeal is whether the Court of Appeal was right to have set aside the judgment of the lower court, which was delivered in chambers in violation of Section 36 (3) of the Constitution of the Federal Republic of Nigeria 1999.

Section 36 (3) of the 1999 Constitution provides as follows:
"36.(3) The proceedings of a court or the proceedings of any tribunal relating to the matters in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public."
It is contended on behalf of the appellants that in determining whether there was compliance with Section 36 (3) of the 1999 Constitution, the court below adopted the wrong test and thereby misdirected itself, Learned counsel argued that the court wrongly applied the ordinary accessibility test rather than the test of actual accessibility. In effect it is the appellant's contention that what the court ought to have considered was whether the chambers of the learned trial Judge was in fact accessible to the public at the time the judgment was delivered and not whether the chambers was ordinarily accessible to the public. Referring to the dictionary definition of "public", "publicity" and "public place" and several decided cases, learned counsel argued that '"public" as contemplated by Section 36 (3) of the 1999 Constitution means a place where the persons concerned have access as of right or at the invitation of or with the permission of the occupier for purposes of the suit Learned counsel submitted that the chambers was a public place at the time the judgment was delivered because access was given to all those present on the invitation of and with the permission of the trial Judge. The decisions of this court in: Oyeyipo Vs Oyinloye (1987) 1 NWLR (Pt.50) 356 @ 377 B -D and N.A.B. Ltd. Vs Barri Engineering (Nig.1) Ltd. (1995) 8 NWLR (Pt.413)257 @ 279 A - B & 290 B - D were referred to.
Learned counsel for the respondents on the other hand referred to the proceedings of 28/6/2000 when judgment was delivered (reproduced infra) and observed that there was no indication in the record that the parties or the public in general were invited into the chambers of the learned trial Judge for the delivery of the judgment, nor was there any record that the chambers was open to the public while the judgment was being delivered. He argued that the decision in Oyeyipo's case (supra) relied upon by learned counsel for the appellant is restricted to its peculiar facts. He submitted that "public" in relation to judicial proceedings and judgment within the meaning of Section 36 (3) of the 1999 Constitution means the public at large and not the parties to the suit as asserted on behalf of the appellants. He argued that the right to a public hearing is not private to the parties concerned with the proceedings or judgment in a suit and therefore cannot be waived. He noted that there is no record as to what transpired at the delivery of judgment in the Judge's chambers nor is there any record to show that the parties were present. He urged the court to hold that the lower court properly construed the provisions of Section 36 (3) of the 1999 Constitution.

It is important to note that Section 36 (3) of the 1999 Constitution falls within Chapter IV of the said Constitution, which guarantees the basic human rights of the citizens of this country. Section 36 provides for the right to fair hearing. Subsection (1) provides:
36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality."
Section 36 (3), which requires that the proceedings of a court or tribunal shall be held in public, is one of the means by which the right to fair hearing is actualized. This is in conformity with the adage that "justice must not only be done, it must be seen to have been done." The attributes of fair hearing as stated in Kotoye Vs Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt.98) 419@ 414 were reiterated by this court in Baba Vs N.C.A.T.C. Zaria (1991) 7 SC (Pt. 1) 58 @ 81 - 83 They include the following:

(i) that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
(ii) that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned;
(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing:
(iv)   that having regard to ail the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. (Emphasis mine)

As rightly observed by learned counsel for the respondents, the test usually adopted in determining the impartiality of a court is the common law 'reasonable man' test, which envisages that any member of the public, sitting in the courtroom should be able to observe the entire proceedings from beginning to end and leave with the impression that justice was done. Such a 'reasonable man' should be able to enter and exit the court at any time during the course of the proceedings without obtaining permission from the court, The Judge's chambers on the other hand is his "inner sanctum" as it were. It is certainly not a place ordinarily accessible to the public without his express permission.
In the case of: Oviasu Vs Oviasu (1973) All NLR (Reprint)370, the entire proceedings in the matrimonial cause were conducted in chambers at the instance of the learned trial Judge. None of the parties on record requested for a hearing "in camera". This court per Sowemimo, JSC held that any act of secrecy no matter how desirable it might be, detracts from the aura of impartiality, independence, publicity and unqualified respect for justice given 'without fear or favour' upon which the public confidence in the court depends.

Relying on a portion of the concurring judgment of Obaseki, JSC in Oyeyipo Vs Oyinloye (supra), to the effect that when a court sits in chambers it does not necessarily mean it is not sitting in public, learned counsel for the appellant contended that that case had overruled the decision in Oviasu Vs Oviasu (supra). The effect of the decision in Oyeyipo Vs Oyinloye (supra) was considered in N.A.B. Ltd. Vs Barri Engineering (Nig.) Ltd.(supra) I refer to the concurring opinion of His Lordship, Ogundare, JSC at page 290 A - B (supra) where he held as follows:
 
"The passage in Obaseki, JSCs judgment in Oyeyipo Vs Oyinioye (supra) being an obiter dictum is not binding on the court below. What is binding is the clear and unambiguous ratio decidendi in the decision of this court in Oviasu Vs Oviasu (supra) to the effect that sitting in chambers to hear an action is a fundamental irregularity, which touches the legality of the whole proceeding including the judgment and the incidental orders made thereunder. It is not the regular hearing of an action in court"

His Lordship stated further at page 290 B - D (supra):
"... sitting in chambers to deliver judgment is not, on the facts before us, sitting in public or in open court, A Judge's chambers is not one of the regular courtrooms nor is it a place to which the public have a right of ingress and egress as of right, except on invitation by or with the permission of the Judge. There is no evidence that such invitation was issued to the public In this case nor is there evidence that any member of the public attended. The facts before us show that counsel for the parties were already seated in the regular courtroom waiting for the Judge to sit and deliver judgment when they were called into chambers and the judgment was delivered by the learned trial Judge. There is in this case, a clear breach of the mandatory provisions of section 33 (3) and (13) of the 1979 Constitution and Order 36 rule 1 of the High Court Rules of Lagos State, ... The defect here is fundamental and goes to the root of the entire proceedings." (Emphasis mine)

Section 33 (3) of the 1979 Constitution referred to is in pari materia with Section 36 (3) of the 1999 Constitution. In the instant case, there was nothing in the record of 28th June 2000 to show that the parties or the general public were included in the invitation to the chambers of the learned trial Judge. In other words, learned counsel for the parties who attended the delivery of the judgment in chambers were there on the express invitation of the learned trial Judge.

At pages 476 and 477 of the record, the lower court held inter alia as follows:

"...all judicial officers and indeed the genuine consumers of the services of such officers, who are privy to the conduct of judicial functions, know that the Judges Chambers is not a place that can, without pretensions, be called a public place where persons have the right to freely enter into and exit from.
…. The Supreme Courts decision in the Barri's case is a profound restatement of this practice and recognition of same."
….It is my firm and considered view that a place qualifies under S.36 (3) of the 1999 Constitution to be called "public" and which a regular Courtroom Is, if it is out rightly accessible and not so accessible on the basis of the "permission" or "consent" of the Judge. In the case at hand, but for the "permission" or "consent" of the Judge to have the judgment delivered in his Chambers, neither the parties nor their counsel and indeed the public at large would have had access as of right to the Judges Chambers. It is of essence of justice that not only should it be done but that it should actually be seen to be done."

I am of the view that this pronouncement of the court below is in consonance with the spirit of Section 36 (3) of the 1999 Constitution. In so far as the general public did not have access to the learned trial Judge's chambers, it was not a public place within the contemplation of Section 36 (3) of the 1999 Constitution. Once again I call in aid the authority of N.A.B. Ltd. Vs Barri Engineering (Nig.) Ltd. (supra) at 290 E - F. per Ogundare, JSC:

"The delivery of judgment is, in my respectful view, part of the hearing of a cause or matter. A breach of the mandatory constitutional provisions is more than a mere technicality; it is fundamental. And it is no argument that there has been no miscarriage of justice.
... The right provided under section 33 (3) and (13) and Order 36 rule 1 is a public right for "every court of justice is open to every subject of the King" per Lord Halsbury in Scott Vs Scott (supra). "The court must be open to any who may present themselves for admission" per Lord Blanesburgh in McPherson Vs McPherson (supra).
... Being a public right, therefore, the defendant nor any party to a suit cannot waive the right -see Ariori Vs Elemo (1983) 1 ALL NLR 1; (1983) 1 SCNLR 1."

I am in full agreement with the court below and my learned brother in the lead judgment that the delivery of judgment in chambers by the learned trial Judge constitutes a fundamental defect that goes to the root of the entire adjudication and renders it null and void.

For these and the more detailed reasons stated in the lead judgment, I hold that this appeal is devoid of merit. It is accordingly dismissed. The cross-appeal, which challenges the judgment, which has been nullified is hereby struck out. The judgment of the lower court delivered on 4th July, 2005 is affirmed. I abide by the order on costs made in the lead judgment.

JOHN INYANG OKORO, JSC I read in draft the lead judgment of my learned brother, Mary Ukaego Peter-Odili, JSC just delivered in agreement that this appeal is devoid of any scintilla of merit and deserves an order of dismissal. My learned brother has efficiently resolved all the salient issues submitted for the determination of this appeal. 1 shall chip in a few words of mine in support of the judgment.

The main issue in this appeal is whether judgment delivered in the Chambers of the learned trial judge is valid and constitutional. This comes on the heel of Section 36(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which states that:
"The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in sub-section (1) of this Section {including the announcement of the decision of the court or tribunal) shall be held in public” The above constitutional provision is so clear and unambiguous that it does not need any cannon of interpretation to understand same. It means that both the proceedings and the judgment generated therefrom must be done in public. The question may be asked whether the chambers of a judge constitute a public place. In justifying the delivery of the judgment in his Chambers rather than the open court, the learned trial judge said as follows:-
"This is the second day that this judgment could not be read in open court because there was no electricity in the court room, we there/ore decided with consent of the parties' counsel to read it in Chambers”

There is no doubt, and it is common knowledge that the Chambers of a judge is the office of that judge which is not usually open to the public except by permission of the judge. It is not a place where members of the public have the right of ingress and egress at will. Such right is only available in the open court.

In NAB Ltd. V Barri Engineering Nig. Ltd (1995) 8 NWLR (pt. 413) 257 at 290 paras B - D, this court held that any act of secrecy, however desirable it might seem, detracts from the aura of impartiality, independence, publicity, and unqualified respect which enshrouds justice given without fear or favour. That its acceptance by the public at large and the confidence it demands, depends on these aura being strictly adhered to. In that case, Kutigi, JSC (as he then was) made it succinctly clear in the following words on page 276 of the report:

"The irregularity occasioned by the delivery of the judgment in Chambers contrary to clear and unambiguous provisions of Section 33(3) of the 1979 Constitution above is very fundamental and vitiates the whole trial.” It should be noted that Section 33(3) of the 1979 Constitution alluded to above is in pari materia with Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Thus whether under the 1979 Constitution or 1999 Constitution, the provision is that a court or tribunal must, in their proceedings in relation to the civil rights and obligations of persons, conduct such proceedings and pronounce their decisions in public.

The court below concluded that "the delivery of the judgment in chambers by the lower court being in breach of S. 36(3) of the 1999 Constitution has vitiated the whole trial” (See page 477 of the record). 1 agree entirely. The fact that counsel to both parties and the court agreed to read the judgment in chambers does not change the position. The reason is that parties and the court cannot conspire to breach the provisions of the constitution of Nigeria or any law for that matter. The action of the court in the circumstance was to say the least, illegal. The said judgment cannot be allowed to stand. Proceedings of court and delivery of judgment must be done in open court as prescribed by the organic law of Nigeria. It should not be otherwise.

Based on the above and the more succinct reasons enunciated in the lead judgment, I agree that this appeal lacks merit. It is hereby dismissed by me. I abide by all the consequential order made in the lead judgment, that relating to orders for retrial and costs, inclusive.