It is often the case that a serving judge of a state High Court or of the Federal High Court, (both of which are courts of coordinate jurisdiction in the judicial hierarchy), gets appointed or penciled down for appointment or elevation to the higher bench, usually, the Court of Appeal, and matters which had been handled by these judicial officers, more particularly as it relates to judgments written but yet to be delivered by them in open court, in accordance with the provisions of section 294 of the 1999 Constitution, (as amended), suffer the ill fortune of a de novo trial, as no other judge from the same court, could step in to deliver those judgments in their stead.
The situation may not be properly appreciated until it is considered against the backdrop of certain matters before these appointee judges which may have had a chequered history, but which must be condemned to another judicial marathon before a new judge in order for such judgments to meet the requirements of a valid judicial pronouncement or decision. This obvious legislative oversight has over the years led to a frustration of both litigants and counsel who must be forced to a double-relay of sorts at the financial expense of litigants and the mental resources of counsel. Not to speak of the hurting postponement of justice, which cannot be quantified. In the wake of this ugly development, it has become imperative to set in motion, a constitutional amendment of the relevant portion of the constitution, and the various state High Court laws, that would make an express provision to take care of the lacunae in our laws. The instant intervention is an effort at putting the issue in proper perspective, and to suggest possible ways to walk out of that ‘legislative darkness’ into the light of ‘judicial awakening’.
CONTEXTUALISING THE ISSUE
On the 27th of November, 2017, news went to town that the National judicial Council (NJC) had recommended about 14 judges from various jurisdictions to the president for appointment into the Federal Court of Appeal, in keeping faith with the powers conferred on the august body by the Constitution. One of the likely fallouts of this development is that, in the event of their elevation, any matter which currently is at the post-trial stage, awaiting delivery of judgment before these appointee judges, may be commenced afresh before a new judge to whom it would please the chief judge of the High Court of the affected jurisdictions to assign the matter, not minding, the time such matter has spent in the womb of the court of first instance. This quite technical position is made possible owing to the absence of any Constitutional provision, or judicial pronouncement expressly covering the field on the subject, as it relates to High Court judges, unlike their counterparts at the appellate courts, a la Court of Appeal and the Supreme Court. This somewhat tenebrous situation has also been seen to rear its ugly head in a number of scenerios such as the death, retirement, dismissal or terminal illness of a serving judicial officer.
THE CURRENT POSITION OF THE LAW
It appears that it may not have occurred to the framers of the Constitution that circumstances may operate to prevent a sitting judge from delivering a judgment which he may have written and perhaps signed, and thus, didn’t suffer an express provision to accommodate for such a contingency. This could be inferred given the elaborate provisions made by the same constitution to take care of such a happenstance at the appellate courts. At the risk of sounding too hypothetical, let us invite the provisions of the constitution.
Section 294(2) of the 1999 Constitution provides succinctly as follows:
“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 deliver a written opinion;
Provided that it shall not be necessary for all the justice who heard a cause or matter to be present when the judgment is to be delivered and the opinion of a justice may be pronounced or read by any other justice whether or not he was present at the hearing”.
Now, the net import of the above provision is to the effect that, the opinion of a justice who sat on an appeal, may be delivered by a different justice who was not part of the panel, provided that such opinion, was written before the elevation, death, ill health or any force majeure, that operates to prevent thee said justice from delivering his/her opinion. This interpretation of the provisions has received judicial endorsement in a plethora of cases. In STAR DEEP WATER PETROLEUM LTD. &ORS V A.I.C LIMITED & ORS, (2011) LPELR-4979(CA), one of the questions that fell on the lap of the appellate court to determine, was the import of section 294(2); and the learned justices of the court of appeal left nobody in any doubt when it observed poignantly as follows:
“…under Section 294(2) of the 1999 Constitution of the Federal Republic of Nigeria, 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. As concerns the Court of Appeal, and with regard to the Ruling in focus, two members constitute the majority as it were. By the same Section of the 1999 Constitution, a Justice of the Court of Appeal who did not take part in the hearing of an appeal, can in fact take part in the delivery of the Judgment but cannot take part in the writing of the Judgment. He cannot express his opinion in the Judgment.” Per Okoro, J.C.A.(as he then was). Earlier in the case of ANYAOKE V ADI, (1985) 4 SC 213, the constitutional provision for a justice of the Court of Appeal or Supreme Court to read the written opinion of another justice who is absent at the delivery of judgment was upheld by the Supreme Court where the apex court held that it was competent for one justice to read his own judgment and also the concurrent judgments; and to read the fact that other justices concurred to the judgment, irrespective of whether they are dead or living, provided that before the fact of death, elevation or any such contingency, such opinion was expressed whether orally or in writing.
Whereas the law is settled as it relates to the appellate courts, same cannot be said of the trial courts. The various state High Court laws, establishing the State High Courts and the Federal High Court Act by their tenor appear to have made matters worse by the provisions therein giving no room for a situation where a different judge of the same court could step in to deliver the judgment of a brother judge who is unable to deliver such judgment for one reason or the other.
Section 21 of the Federal High Court Act Cap F12 LFN, 2004 with “Judges’ Absence” as its marginal clause, provides as follows: “where the judge who is presiding over the sitting of the Court is for any cause unable or fails to attend the same on the day appointed, and no other judge is able to attend in his stead, the Court shall stand adjourned from day to day until a judge shall attend or until the Courts shall be adjourned or closed by order under the hand of a judge”.
Similarly section 23 of the same Act, with “Proceedings to be disposed by a single judge” as its marginal clause, provides unmistakably as follows: “Every proceeding in the Court and all business arising therein shall, so far as is practicable and convenient and subject to the provisions of any enactment or law, be heard and disposed of by a single judge, and all proceedings in an action subsequent to the hearing or trial, down to, and including the final judgment or order, shall so far as is practicable and convenient, be taken before the judge before whom the trial or hearing took place”. (Emphasis mine).
In the same token, section 58 of the High Court Law of Lagos State, CAP H5 2015 which is in pari materia with those of other States of the federation provides as follows: “Subject to the provisions of this or any other enactment and subject to any rules of court, all civil and criminal causes or matters and all proceedings in the High Court and all business arising shall so far as practicable and convenient be tried, heard and disposed of by a single judge, and all proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall so far as is practicable and convenient be taken before the judge before whom the trial or hearing took place”.
Now, a cursory look at the above provisions would reveal that it was contemplated by the draftsman that a situation may arise such as would prevent a judge who took charge of the trial/hearing phase of a cause from performing the post-trial phase, such as delivering judgment in the matter. This is evident by the use of the words, “so far as is practicable and convenient be taken before the judge before whom the trial or hearing took place” in all the provisions; a construction devise often used to remedy the shortsightedness of the draftsman of legislation. But even the use of that rider does not seem to take care of the issue as the experience in the judicial arena over the years has shown. It is submitted that a bold proviso namely: provided that if for any reason the judge who took charge of the matter, is for any reason unable to deliver the judgment, it shall be lawful for another judge on the authorization of the Chief judge to deliver the judgment in his stead, would have cured the defect in the enactments. A legislative enactment along this line would obviate the need for such a cause to be re-litigated de novo and as well as save ample judicial time.
Weighing in on the issue in his well received book, Principles of Civil Procedure in Nigeria 2nd Edition; frontline author, (Dr.) D. I. Efevwerhan argued that a coterminous reading of sections 21 and 23 of the Federal High Court Act, is to the effect that it is envisaged by the draftsman that there could be a situation making it impracticable for the presiding judge to preside, and that another judge may attend and preside in his stead, to conduct the business of the court, including final judgment. The learned author went further to submit that it is arguable that the Constitution did not intend the provisions of Section 294(2) to apply to High Courts. He concluded by suggesting that since the Constitution did not expressly forbid the practice of a different High Court Judge, delivering the judgment of a judge who presided over the matter, the practice may not stricto senso be illegal. With the greatest respect to the learned author, we submit that such a proposal would fly in the face of the time honored canon of interpretation of statutes as encapsulated in the popular maxim expressio Unis est exclusion alteirus, which loosely translates into: the express mention of a thing, is to exclude all other things not mentioned. It would therefore amount to expanding the provisions of the law to make such imputations or assumptions, which offends the rules of interpretation of statutes.
THE JUDICIARY TO THE RESCUE?
The issue came perhaps for the first time before the Court of Appeal in A.G FED V A.N.P.P& 2 ORS 15 NWLR (PT844) 660. Here, judgment was written, signed and sealed in an envelope by Okechukwu Okeke, a judge of the Federal High Court, but was delivered by Egbo-Egbo j. of the same court, who broke the seal. The appellate court relying on the provisions of section 21 and 23 of the Federal High Court Act, earlier reproduced in this essay, upheld the procedure. In the leading judgment of OGUNTADE J.C.A (as he then was), while endorsing the practice of a different judge delivering the judgment of another judge, the now retired eminent jurist (of AMAECHI V INEC) fame observed, “There is nothing in the 1999 constitution which bars a judge from asking another judge to read for him a judgment which the judge who heard the case has prepared. Consequently, the occurrence is not a breach of the constitution”.
In his concurring opinion, I.T.MUHAMMAD, J.C.A (as he then was) while acknowledging the obvious lacunae in the constitution, the frontline jurist enthused as follows:, “Although section 294 of the 1999 constitution makes provision for a justice of the Supreme Court or the Court of Appeal to deliver the judgment of each court, it did not say anything concerning the judgment of the High Court written by one judge and delivered by another. In effect, there is a lacunae in the constitution on whether or not a judgment of the High Court written by one judge could be delivered in court by another High Court Judge”. Further in the report, the eminent jurist while voicing the somewhat technicality of a negative proposition observed, “it is not in the interest of justice to regard a judgment which was validly written through the normal process of judgment writing after all hearing was concluded, but could not be delivered by the judge who wrote same due to some circumstances, as invalid and a nullity. To do so will amount to placing premium on technicality”. And in what has become a “Notable Pronouncement” of the appellate Court, the frontline jurist put it succinctly in a moving rendition as follows:
“Yes! It is certain that there is no corresponding provision in the constitution which applies to judgments of a High Court judge written by him but to be delivered by another judge. This, in my humble view can only amount to a lacunae occasioned during the process of constitution making. We must appreciate the fact that those who drafted this constitution were human beings like ourselves. They cannot be completely free from human frailties. It is obvious that situations may arise which may cause inability for the judge who wrote the judgment to deliver same. Cases of death are there. We have instances on hand: in DWEYE & ORS V. IYOMAHAN & ORS (1983)NSCC 393 @ 397, Justice Idigbe JSC who presided the appeal, died before judgment was delivered. His opinion was pronouncedby Obaseki JSC; APOSTOLIC CHURCH V OLOWOLENI (1990) 10 SCNJ 69, (1990) 6 NWLR (PT. 158) 514; Justice Nnamani, JSC participated in hearing of the appeal but died on 22/09/90 before judgment was delivered. Of recent, Hon. Justice Mangaji JCA(late) participated in the hearing of some appeals at the Jos Division of the Court of Appeal. He fell sick and died. His written opinion was delivered by another justice of that division…I do not think it will be championing the cause of justice to regard a judgment which was validly written through the normal process of judgment writing after all hearing was concluded but because of some circumstances which make its delivery by its writer impracticable. To think otherwise will be laying premium on technicality, which all courts of law, nowadays distances themselves from”.
What can be deduced from the above case is that whereas the appellate court recognized the obvious lacuna in the law, it went ahead in what may be called judicial legislation to apply the practice in the appellate court to the trial court in order to meet the justice of the case before it. This perhaps may raise the question whether the Machiavellian practice of the “end justifying the means” wasn’t a consideration in the road to justice in that case. This is more so, as all the cases referred to by the appellate court were occurrences at the Court of Appeal and Supreme Court, which practice is ordained by the constitution for these courts. In any event, one could see the efforts of the appellate court in the ANPP case to prevent a situation where undue technicality would have set the judicial clock backwards. As the learned author of the Civil Procedure text, D. I. Efferwahan, suggested in his book, “it is hoped that this issue will one day get to the Supreme Court so that it will be able to make a pronouncement on it” one way or another.
The specter of a parliament that refuses to live up to its constitutional mandate of evolving robust laws that would aid the civilized progression of any society is better imagined than experienced. Yet, that has been the Nigerian legislative story. It is the ugly story of a parliament that pays lip service to continuous law reform and revision of existing laws. And this is so both at the federal and state levels, if not worse at the latter. One cannot help but wonder why the Lagos state House of Assembly which revised its laws only three years ago in 2015, couldn’t put the all-important-first-foot in front towards establishing a departure from the law as currently constituted. We cannot afford to wait until such a time when the issue finds its way to the Supreme Court for the latter to pronounce on it. The situation therefore calls for an amendment to the section 294 of the 1999 Constitution to incorporate a section which would take care of the legislative oversight. And the states need not wait until when the National Assembly has done so, before they would. As the State Houses of Assembly are invested with the powers to amend any provision of the Law governing their respective domains.
Nkannebe Raymond, a Legal Practitioner and Public Interest Litigator is of Synergy Attornies, but the views expressed here does not represent those of Synergy Attornies, LLP. Comments and reactions to firstname.lastname@example.org.
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