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Non-Applicability Of Constitutional Provision Of Section 294 To Appellate Courts In Nigeria By S.O. Giwa Esq. A rejoinder by Ebere Frankline Chisom

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Setting the stage right.

Dear Learned Colleague (in Equity),

I have read with considerable interest your publication dated 22nd July 2020 where you sought to "x-ray the provision of section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to find out its application to appellate courts in Nigeria".

In the piece, you pungently submitted that the articulate provisions of Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the Constitution or CFRN 1999) which obliged all courts established under the Constitution (underlining is for emphasis) to deliver its decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses, do not apply to courts with appellate jurisdiction in Nigeria which granted, as submitted by you refer to the Supreme Court of Nigeria and the Court of Appeal of Nigeria.

I have carefully reviewed your position (based on your interpretation of the provision) on the matter and now write this in response with the intent of broadening your perceptual interpretation of the constitutional provision of the particular section in contention (Section 294 CFRN 1999) and probably inducing a shift in your position on the subject matter.

While most of the points I will put forward will be contradictory, let me categorically affirm that they are not intended in any way to belittle or denigrate your efforts at a constitutional interpretation of the particular section of the CFRN 1999 in contention.

The supremacy of the constitution

Before engaging you in the discourse, I think it extremely important to invoke this age-long and widely accepted truth which has been domestically provided for in Section 1 of our Constitution. By this provision, (as expressly stated in Subsection 3) "If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void".

This call to remembrance aims to establish and ground certain points which I will be raising during the course of this discourse.

Moving forward, issues for determination

Dear Mr. Giwa, in the words of Section 294 (1) of the CFRN 1999 which you sought to interpret, it is provided that "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..."

It is my view that this provision harbours no iota of ambiguity but is clear enough in its specification of "every Court established under the very same Constitution". You should not be ignorant of the fact that every Court of law in Nigeria has a base in a constitutional provision from which it derives its powers and existence. This applies to the Supreme Court of Nigeria and the Court of Appeal of Nigeria whose creation rest on the provisions of Sections 230 and 237 of the CFRN 1999 respectively.

At this time, dear learned colleague (in equity), I am reminded of the ruling of the Court of appeal in Onah v. Otenda (2000) 5 NWLR (pt. 656), where the court held that "if the words of a statute are precise and unambiguous, then it is necessary to expound those words in their natural and ordinary sense" _ this, in essence, means that the literal rule of interpretation is the rule to be applied. Consequently, I dear say that the provision of ninety (90) days deadline for the court to deliver its judgment in writing after the conclusion of evidence and final addresses is binding on the Supreme court and the Court of Appeal of Nigeria just as stated in the expression of "every Court", in as much as the Court is created or established by virtue of a constitutional provision.

Glaringly, your whole argument rests on a misconception which you were able to clearly articulate. Your submission of appellate courts as courts that do not take evidence is not only ill-informed but also misleading. Within the context of the Nigerian legal system, appellate courts (just as you agree), are the Supreme Court and the Court of Appeal of Nigeria. This said, it is important to draw your attention to the provisions of Section 15 and Section 22 of the Court of Appeal Act and the Supreme Court Act respectively which all provide for the general powers of the Court of Appeal and Supreme Court of Nigeria. In their wordings, the supreme court or the court of appeal "shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court / Court of Appeal as a court of first instance and may rehear the case in whole or in part or may remit it to the court below ...". By necessity, practice or convention, a court of first instance admits and considers evidence. Therefore, by direct implication , these courts i.e. the Court of Appeal and the Supreme Court of Nigeria admit evidence and would go on to conclude same against your position. Admission of evidence by courts of appellate jurisdiction is very well common in Nigerian jurisprudence and the procedure for the practice is contained in the Evidence Act 2011. (See Ademola Atoyebi V. William Odudu (SC 218/1988)[1990] NGSC 29 (5 October 1990) and Mogagi Lasisi Atanda & Ors V Salami Ajani & Ors (SC 197/1987)[1989] NGSC 45 (21 JULY 1989) for practical examples).

Additionally, in Emmanuel M. O. Chukwuogor v. Richard Obigigbo Obuora (1987) LPELR-865(SC), the appellant appealed to the Supreme Court against the decision of the Court of Appeal on the ground that judgment was delivered ninety (90) days after the final addresses by the counsels. Obaseki, J.S.C. while delivering the leading judgment dismissed the appeal on the ground that the visit to the locus in quo undertaken by the court of appeal form part of the evidence and that evidence was not concluded not until after the visit to the locus in quo. The implication of this is that the Supreme Court recognises the power of the Court of Appeal, a Court of appellate jurisdiction to admit evidence.

Learned colleague (in equity), I have carefully reviewed your submission on the computation of time for delivery of judgment of courts of appellate jurisdiction which you posited as starting from the time the appeal is heard and also being governed by the respective appellate court rules. After the comprehensive revision of this submission which I undertook, sir, I dare say that this is grossly inconsistent with our existing laws and judicial principles. Firstly, there is a standing provision on the subject matter specifically, by our very supreme Constitution in Section 294(1) (recall the supremacy of the Constitution). Consequently, submitting that the matter is governed by the respective Appellate Court Rules is an attempt to oust the jurisdiction of the Constitution on the subject matter against the provisions of Section 1 (3) of the Constitution which nullifies any provisions of the law inconsistent with the Constitution. This is despite the fact that no such provision exists in any of the Appellate Court Rules. Secondly, your submission of computation of time for delivery of judgment as starting from the time the appeal is heard enjoys no legal backing and can, therefore, be likened to a postulation grossly inconsistent with our existing Constitution in force, with regards to the 1999 Constitution of the Federal Republic of Nigeria.

I am also willing to contend that the provision of Order 20 Rule 1 of the Court of Appeal Rules, 2016 that "the judgment of the Court shall be pronounced in open court either on the hearing of the appeal or at any subsequent time of which notice be given by the Registrar to the parties to the appeal" does not in any way (impliedly or directly) give the Court of Appeal liberty to decide the time to deliver its judgment simply because it does not reiterate the provision of section 294 (1) of the CFRN 1999. In my opinion, instead of liberty as expounded by you, it imposes additional restraints on the court with regards to conditions for delivery of judgment.

Finally, dear learned fellow, this provision (of Section 294 (1) of the CFRN 1999) is of extreme importance not only because it promotes quick dispensation of justice as per your view, but also because it is a device introduced to curb the excesses of inordinately long adjournments before delivering judgment by courts. This was expressed by the learned judge Mohammed Ladan Tsamiya, J.C.A. in Yakubu Gagarau & Ors v. Hausa Danboyi Pashiri (2005) LPELR-6232(CA).

On this note Learned colleague (in equity), I wish to drop my pen. However, for the time being, please do accept the assurances of my highest esteem.

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