MISIRI ALIMI & ORS Vs. ASANI KOSEBINU & ORS

Supreme Court – July, 2016

APPEAL NO: SC. 268 /2005

Areas Of Law:

APPEAL, CONSTITUTIONAL LAW, COURT, FAIR HEARING, JUDGEMENT AND ORDER, PRACTICE AND PROCEDURE

Summary Of facts

 The Plaintiffs/Appellants in a representative action sued the Defendants/Respondents as representatives of the Oduso Family of Akasan seeking for a declarative relief 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, a sum of N5,000.00k being damages for trespass committed by the Defendants, and an injunction restraining the Defendants by themselves, their servants howsoever from further acts of trespass on the said land.

At the close of both parties’ final addresses, the trial judge ordered a visit to the locus in quo where personal observations were made by judge. The trial Judge gave judgment in his Chambers due to power outage in the court room.

The Defendants/Respondents not satisfied with the judgment of the Court appealed to the Court of Appeal where the decision of the trial court was set aside on the ground that a judge’s Chambers was outside the constitutional provision of a public place where the judgment could be delivered.

The Plaintiffs/Appellants aggrieved with the decision of the lower court has appealed against same to the Supreme Court, whilst the Defendants/Respondents cross appealed.

Held

Appeal Dismissed, Cross Appeal Struck Out

Issue For Determination

• 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.

Cross Appeal

• Whether aside of its delivery in chambers the judgment of the trial court is otherwise valid

Rationes

COURT PROCEEDINGS- IMPLICATION OF CONDUCTING THE COURT’S PROCEEDINGS WITHIN THE CONFINES OF THE JUDGE’S CHAMBER

 “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).”PER M. U. PETER-ODILI, J.S.C

DELIVERY OF JUDGMENT OF THE COURT- STATUS OF A JUDGMENT OF A COURT DELIVERED AFTER THE STATUTORY PERIOD

“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.” PER M.U. PETER-ODILI, J.S.C 

COURT PROCEEDINGS – WHETHER A JUDGE HAS INHERENT POWERS TO WAIVE A PUBLIC RIGHT DONATED BY THE CONSTITUTION

“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 Monve (1970) 1 ALL NLR 91; Ofune v Okoye (1966) 1 ALL NLR 94″. PER M.U PETER-ODILI, J.S.C 

COURT PROCEEDINGS- WHETHER COURT PROCEEDINGS HELD IN CHAMBER CAN BE SAID TO HAVE BEEN HELD IN PUBLIC

“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).”PER. N. S. NGWUTA, J.S.C

RIGHT TO FAIR HEARING- MEANS OF ACTUALISING THE RIGHT TO FAIR HEARING- 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 actualised. 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.981 419 @ 414 were reiterated by this court in Baba Vs N.C.A.T.C. Zaria (1991) 7 SC (Pt. ll 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).” PER K.M.O. KEKERE-EKUN, J.S.C 

COURT- TEST FOR DETERMINING THE IMPARTIALITY OF A COURT

“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.” PER K.M.O. KEKERE-EKUN, J.S.C

CHAMBERS OF A JUDGE – WHETHER THE CHAMBERS OF A JUDGE IS A PLACE WHERE MEMBERS OF THE PUBLIC HAVE THE RIGHT OF INGRESS AND EGRESS

“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.” PER  J. I. OKORO, J.S.C

Statute Referred To

Constitution of The Federal Republic of Nigeria1999 (as amended)