Improperly Constituted Panel of Justices – Effect on Competence of an Appellate Court
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 15th Day of January, 2021
Before Their Lordships
Kudirat Motonmori Olatokunbo Kekere-Ekun
Chima Centus Nweze
Amina Adamu Augie
Uwani Musa Abba Aji
Justices, Supreme Court
OLU CHARLES O. FALUYI
OLUSOLA ADOJUTELEGAN APPELLANTS
(for themselves and on behalf of the
Association referred to as Academic
Staff Union of Secondary Schools,
Nigeria (ASUSS) (Formerly Conference
of Secondary School Tutors Nigeria))
NIGERIAN UNION OF TEACHERS
NIGERIAN LABOUR CONGRESS
HON. MINISTER OF EMPLOYMENT,
LABOUR AND PRODUCTIVITY
REGISTRAR OF TRADE UNIONS RESPONDENTS
“THE JUDGEMENT DELIVERED BY HON. JUSTICE E. EKANEM, WHO DID NOT SIT WITH THE PANEL OF JUSTICES WHO HEARD THE APPEAL ON THE DATE SET FOR HEARING, ASSUREDLY AFFECTED THE COMPETENCE OF THE COURT OF APPEAL IN THE PROCEEDING CONDUCTED IN THE DELIVERY OF THE JUDGEMENT.”
(Lead judgement delivered by Honourable Chima Centus Nweze, JSC)
The 1st Respondent commenced an action at the Federal High Court, Abuja by an Originating Summons against the Appellant and the 3rd and 4th Respondents. It sought the determination of the scope of powers of the 3rd and 4th Respondents with respect to the registration of a trade union in view of the provisions of Sections 3 and 5 of the Trade Unions Act. The 1st Respondent also sought an order of court preventing the registration by the Appellants, of an association known as Academic Staff Union of Secondary Schools (ASUSS) on the ground that it is not registrable as a trade union as the class of interested persons thereunder (Secondary School Teachers) was already sufficiently represented by the 1st Respondent.
The Appellants and the 3rd and 4th Respondents filed Notices of Preliminary Objections by which they challenged the jurisdiction of the Federal High Court to entertain the suit. In a ruling delivered on 10th March 2009, the Federal High Court dismissed the Preliminary Objections and assumed jurisdiction to determine the action. Dissatisfied, the Appellants appealed to the Court of Appeal. The appeal was heard before a panel consisting of Hon. Justice M.A.A. Adumein, Hon. Justice T. Akomolafe-Wilson and Hon. Justice M. Mustapha. However, on the date judgement was delivered, the panel that delivered the judgement consisted of Hon. Justice M.A.A. Adumein, Hon. Justice Joseph E. Ekanem and Hon. Justice M. Mustapha. Hon. Justice T. Akomolafe-Wilson was absent and Hon. Justice Joseph E. Ekanem who did not take part in the hearing of the appeal concurred and contributed to the leading judgement dismissing the appeal.
Further dissatisfied, the Appellants filed appealed lodged its appeal to the Supreme Court.
Issue for determination
The sole issue considered by the apex court in its determination of the appeal was:
Whether considering the provisions of Sections 247(1) and 294(1), (2), (3) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Court of Appeal was properly constituted when it delivered its judgement in the appeal.
Counsel submitted for the Appellants that it is an established principle of law that a decision of court is valid only when that decision was made by a competent court. He cited MADUKOLU v NKEMDILIM (1962) 1 All NLR 587 in support of his position. He stated that the combined effect of Section 247(1) and 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 is that the panel of Justices of the Court of Appeal can give their opinion in writing as it relates to the judgement in any particular matter. The absence of the written opinion of Hon. Justice T. Akomolafe-Wilson in the judgement of the Court of Appeal rendered the entire judgement a nullity. Counsel opined further that the decision of Hon. Justice Joseph E. Ekanem who did not take part in the hearing of the appeal, yet who wrote a concurring decision, breached their constitutionally guaranteed right of fair hearing enshrined in Chapter IV of the 1999 Constitution. He referred to the decision in SOKOTO STATE GOVT. v KAMDEX (NIG) LTD (2007) 7 NWLR (Pt. 1034) 446, 489.
Reacting to the submissions above, counsel for the 1st Respondent argued that the non-inclusion of Hon. Justice T. Akomolafe-Wilson on the panel that delivered the judgement despite being part of the panel that heard the appeal was a mere irregularity which did not occasion any miscarriage of justice. He submitted that since there was determination of the appeal by two Justices as provided by the Constitution and Hon. Justice Joseph E. Ekanem’s judgement is a concurring judgement which, when excluded, will not affect the main judgement, the entire judgement cannot be a nullity. He argued that the Supreme Court had decided in various decisions before now that where the panel which delivered the judgement is different from the panel which heard the appeal, the judgement will not result in a nullity. He referred to SHUAIBU v NAB LTD (1998) 5 NWLR (Pt. 551) P. 582 at 595, NANA TAWIA III v KWASI EWUDZI 3 WACA 52.
On his part, counsel for the 2nd Respondent submitted that the decision of Hon. Justice Joseph E. Ekanem should be treated as an irregularity which did not affect the substance or the decision reached by the Court of Appeal.
Agreeing with the submissions of the Appellants, counsel for the 3rd and 4th Respondents posited that any defect in competence is fatal. He argued that a Justice who did not take part in hearing an appeal cannot write the judgement, even if it is a concurring one; rather, he is allowed to read the judgement on behalf of a Justice who sat on the appeal.
He stressed further that by the provisions of the Constitution, the judgement of the Court of Appeal is regarded as nullity because it is not a complete judgement until all the members who sat on the panel write their own decision
Court’s judgement and Rationale
Deciding the appeal, the apex court held that Section 247(1) of the 1999 Constitution makes provision for an average of three Justices in appeals before the Court of Appeal and this is not open for any other Justice who did not participate in hearing the appeal to just appear either in substitution for or in addition to those who heard the appeal, to write and deliver a judgement in the appeal.
Relying on its earlier decision in UBWA v TIV AREA COUNCIL (2004) 11 NWLR (Pt. 884) 427 at 437 A-F, the court held that by Section 247(1) of the 1999 Constitution, the court is duly constituted for the purpose of hearing and determining any appeal, if it consists of at least three Justices of that court. Although a Justice of the Court who did not take part in hearing an appeal may lawfully deliver a judgement or opinion of another Justice who took part in hearing the appeal but is unavoidably absent, any judgement delivered by the three Justices in any appeal must be by those who actually heard the appeal.
The court also relied on its judgement in SOKOTO STATE GOVT v KAMDEX (NIG) LTD (2007) 7 NWLR (Pt. 1034) 466 at 49, in which it held that any defect in competence is fatal as the proceedings are a nullity however well conducted and decided; hence, a judicial officer who had not sat in court in that capacity to exercise the jurisdiction of that court in hearing a cause or matter cannot have the capacity in law to sit in court and write a judgement or opinion to determine a dispute which he did not participate in the hearing. For the purpose of delivering judgement, any Justice of the Supreme Court or the Court of Appeal can read the opinion of any Justice that has already been reduced into writing. A judgement delivered by a panel, where one of them did not hear the argument nor was he present at the hearing, is a nullity.
In conclusion, Their Lordships held that the judgement delivered by Hon. Justice E. Ekanem, who did not sit with the panel of Justices who heard the appeal on the date set for hearing, assuredly affected the competence of the Court of Appeal in the proceeding conducted, especially the delivery of the judgement of court
Appeal allowed. Case remitted to the Court of Appeal for hearing de novo before a different panel.
Olayiwola Afolabi Esq. with Shedrack Enyawuile Esq. for the Appellant.
Chinenye Ihekaire for the 1st Respondent.
Anthony Itedjere Esq. with Gabriel Ogenyi Esq. for the 2nd Respondent.
Michael Dedon Esq. with Ikechukwu Odozor Esq. for the 3rd and 4th Respondents.
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