CORAM
K. ESO, JUSTICE SUPREME COURT
A. NNAMANI, JUSTICE SUPREME COURT
M.L. UWAIS, JUSTICE SUPREME COURT
A.G. KARIBI-WHYTE, JUSTICE SUPREME COURT
P. NNAMEKA-AGU, JUSTICE SUPREME COURT
PARTIES
1. GBANIYI OSAFILE
2. JOHN EMERI
APPELLANTS
1.PAUL ODI
2. OKWUMASO NWAJEI
RESPONDENTS
AREA(S) OF LAW
JUDGMENT – WHEN DECLARED AS A NULLITY – IT IS A MATTER OF LAW OR FACT- WHETHER CAN BE CITED AS A PERSUASIVE AUTHORITY?
JUDICIAL NOTICE – WHETHER A JUDGEMENT WHICH ONLY EXIST AS OF FACT CAN BE JUDICIALLY NOTICED WITHOUT PLACING A COPY BEFORE THE COURT?
SUMMARY OF FACTS
The appeal arose as a result of an earlier judgment of the Supreme Court nullifying the judgment of the court of appeal for been delivered outside the 3 months constitutional period. It was to be reheard de novo by another panel. The appellant (as respondent there) in his brief however made references to the nullified judgment which the Court of Appeal rejected and allowed the appeal. The Appellant/respondent has now appealed the judgment to the Supreme Court. Autobahn
HELD
In dismissing the appeal and varying the conclusion of the court of appeal, it held as per the sole issue for determination that a nullified judgment does not exist in law but exist as a matter of fact. That it can be taken judicial notice of but the nullified judgment must be placed before the court before same can judicially noticed.
Since it was not placed before the court, judicial notice could be taken of it.
ISSUES
Is the court below correct in refusing to read or consider its earlier opinion which was declared a nullity by the Supreme Court for the purpose of determining the relevant issues in this appeal?
RATIONES DECIDENDI
WHEN A JUDGMENT IS DECLARED NULL AND VOID
“When a judgment has been declared null and void, and so of no legal effect, it looses its binding and persuasive effective as a judicial opinion. But it exists and like the opinion of any other writer, may be adopted in argument or even accepted and adopted by a court in its judgment”. ( Per Nnaemeka-Agu, JSC.)
JUDGMENT DELIVERED WITHOUT JURISDICTION
“A judgment delivered without jurisdiction or nullified for any other cause continues to exist as a judgment, although it will be ineffectual, invalid, or even unlawful. It is no longer in the eyes of the law an effective adjudication on the rights of the parties, or per se, in appropriate metaphor, a legal foundation upon which any lawful right could be hoisted; but it exists in point of fact. It remains the opinion of the court or Judge that delivered it, for what it is worth”. ( Per Nnaemeka-Agu, JSC.)
CASES CITED
1. Samuel Fadiora V. Gbadebo (1978) 3 S.C. (Reprint)149;(1978)3S.C.219.
2. Gipps v. Gipps Hume (1861-73) All ER. Rep. 138
3. Roe v. Naylor Ltd. (1918)87 LJKB. 1598.
4. Utta v. Independence Breweries Ltd. (1974) 2 S.C. (Reprint)6;(1974)2S.C. 7.
5. Ealing London Borough Council v. Race Relations Board & Anor. (1971)1 QB. 309
6. Gray v. Dalgety & Co. Ltd. (1916) 21 CLR. 509.
7. Venn v. Tedesco (1926) 2 KB. 227
8. Akpene v. Barclays Bank (1977)1 S.C. (Reprint)3;19771S.C.47
9. Kofi Foifie, Odikro of Marbanv v. Barima Kwabene Saifah Kenyasehene (1958) A.C. 59.
10. R. v. Almon (1765) W.N. 234.
11. Obianwuna Ogbunyiya & Ors. v. Obi Okudo & Ors. (1979) 6-9 S.C.(Reprint)24;(1979)6-9.S.C. 32.
12. Craven V. Smith (1869) LR. 4 Exch. 146.
13. Sims v. Marryatt 17 QB. 281.
14. Tucker V. Inman 4 M & Gr 1049
15. Dicas v. Brougham Ltd M. & Rob, 309
16. Place V. Potts 8 Exch. 705.
17. Williams V. Lloyd 1 M & Gr. 671.
18. Tutton v. Darke (1860) 5 H & N 649
19. Omeron v. Dowick (1809)2 Camp. 44.
20. R. v. Holt (1793) 5 T.R. 446
21. Pilkington v. Cooke, 16 M & W. 615
22. Commonwealth Shipping Representative v. P. & O. Branch Services (1923) AC. 191 at p. 212.
23. Poyser v. Minors L.R. 7 QBD.
24. Lever Brothers Ltd. v. Knede & Bagnall (1937) 2 KB. 87; and (1938) 2 K.B. 637.
25. Attorney-General v. Silem L.R. 10 H.L. Cas. 704.
26. Tavcar v. Tavcar (1950) ALR. 260
27. White v. White (1947) ALR. 342
STATUTES REFERRED TO
1. The Supreme Court Act