“The answer to that submission in the first Respondent’s brief by Ifeanyi Egwuasi Esq., that the judgment delivered on July 11, 2014, cannot be seen as nullity, due to the fact that Hon. Justice E. Ekanem’s judgment, is a concurring judgment which, when excluded will not affect the main judgment, can be found in Sections 247(1) and 294 (1), (2), (3), (4) and (5) of the Constitution of Federal Republic of Nigeria 1999 (as amended) they provides; – 247. (1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal… – 294: (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety clays 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. (2) 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 provided that it shall not be necessary for the Justices who heard a cause or matter to be present when 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. (3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members. (4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose. (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground, of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. In compliance with above provisions of Section 294 of the 1999 Constitution, ?each Justice of the Court below, who heard the appellants appeal, ought to have reduced his judgment or opinion in writing for delivery in person or by any of other Justice of the Court on the date fixed for delivery of the judgment. Failure to comply with these key requirements laid down by the Constitution and the law as delineated in numerous decisions of this Court, will render the Judgment as nullity. I must stress that I am bound to the decision of this Court in Ubwa v Tiv Traditional Council and Ors [400] 11 NWLR (supra) at page 884, which provided further insights on the duty of the Court when faced with a similar situation. Speaking for this Court, Kutigi JSC, (as he then was) after being faced with a similar proceeding as in the present, appeal, declared the proceeding as a nullity and opined that: … the entire proceeding before the Court of Appeal were nullity because all members who heard the appeal and those who wrote the judgments were not same. In other words, all the members who wrote the Judgments were not all present throughout the hearing of the appeal, which includes delivery of judgment… See also the case of Sokoto State Govt v Kamdex (Nig) (2007) 7 NWLR (pt 884) 427 at 489. Speaking for this Court in Sokoto State Govt v Kamdex (supra), Mohammed J.S.C, he opined that: … the Court of Appeal judgment will be regarded as nullity, due to the following reasons: 1. The judgment is not a complete judgment of the Court of Appeal, because one of justices who heard the appeal had not reduced his judgment or opinion in writing capable of being delivered on the day fixed for the delivery as required by Subsection (2) of Section 294 of the 1999 Constitution which makes it necessary for the judgments or opinions of the justices who heard the appeal to be produced in writing before a complete judgment of the Court could be validly emerge. 2. The judgment of the Court was defective thereby turning it into something else other than the Judgment of the Court of Appeal. In the light of all that have been mentioned above, it is inferential to hold that, the judgment 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 judgment. This is due to an improperly constituted Court as regards its members, such that no matter is disqualified for one reason or another, is capable in law that any defect in competence is fatal as the proceedings are nullity.

Per C. C. NWEZE, J.S.C.

“Sections 234 and 247 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provide respectively that the Supreme Court shall be properly constituted if it consists of not less than five Justices of that Court, while the Court of Appeal shall be properly constituted if it consists of not less than three Justices of that Court. Generally, a Court is competent when, among other things, it is properly constituted as regards numbers and qualifications of the members of the Bench, and no member is disqualified for one reason or another. Any defect in competence is fatal and the proceedings are a nullity, no matter how well conducted and decided. The defect is extrinsic to the adjudication.

Per K. M. O. KEKERE-EKUN, J.S.C

“Section 294(1), (2), (3) and (4) of the 1999 Constitution, as amended, which is relevant to issue 1 in this appeal, provides as follows: “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. (2) 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: Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when 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. (3) A decision of a Court consisting of more than one judge shall be determined by the opinion of the majority of its members. (4) For the purpose of delivering its decision under this section, the Supreme Court or the Court of Appeal or the National Industrial Court shall be deemed to be duly constituted if at least one member of that Court sits for the purpose. Subsection (2), in my humble opinion, is the most germane. It provides that every Justice of the Supreme Court or the Court of Appeal must express and deliver his opinion in writing. Where he intends to merely adopt the opinion of another Justice, the opinion of that other Justice must be in writing and the Justice adopting it must also state that he does so in writing. By Subsection (4), for the purpose of delivering judgment, 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.

Per K. M. O. KEKERE-EKUN, J.S.C

“In Ubwa Vs Tiv Area Council (2004) 11 NWLR (Pt. 884) 427 @ 437 A – F, His Lordship Kalgo, JSC, clarified the position as follows: “By Section 247 (1) of the 1999 Constitution and Section 9 of Court of Appeal Act. Cap. 75 (Laws of Federation, 1990) the Court of Appeal is duly constituted for purpose of hearing and determining any Appeal, if it consists of at least three Justices of that Court and although a Justice of the Court who did not take part in hearing an appeal may lawfully deliver a judgment or opinion of another Justices who took part in hearing the appeal but is unavoidably absent, any judgment delivered by the three Justices in any appeal must be by those Justices who actually heard the appeal. Failure to do so, will render the judgment a nullity. See: Adeigbe & Anor. V. Kusimo & Ors. (1965) 1 All NLR (reprint) 260 (1965) NMLR 284 at 287; Okolie Chime & Anor. V. Ofili Elikwu & Anor. (1965) 2 All NLR (Reprint) 16.

Per K. M. O. KEKERE-EKUN, J.S.C

Also, in Sokoto State Govt. Vs. Kamdex (Nig) Ltd. (2007) 7 NWLR (Pt. 1034) 466 @ 492 – 493 B – B and 497 B – D and E – G, per Mahmud Mohammed and Niki Tobi, JSC respectively, this Court held as follows: Per Mahmud Mohammed JSC: “l am bound by the recent decision of this Court in Ubwa V. Tiv Traditional Council and Ors (2004) 11 NWLR (Pt. 884) 427, at 436 where Kutigi JSC (as he then was) faced with similar proceedings of the Court of Appeal, Jos as in the present appeal, declared the proceedings a nullity in allowing the appeal. That case is on all fours with the instant appeal now under consideration in which I have no option but to declare the judgment of the Court below delivered by the panel of Justices comprising of Galadima, Aderemi and Chukwuma-Eneh JJCA on 22-1-2004, also a nullity. I have two reasons for coming to this conclusion. Firstly, the judgment is not a complete judgment of the Court of Appeal because one of the Justices who heard the appeal had not reduced his judgment or opinion in writing capable of being delivered on the day fixed for the delivery as required by Sub-section (2) of Section 294 of the 1999 Constitution which makes it necessary for the judgments or opinions of the three Justices who heard the appeal to be produced in writing before a complete judgment of the Court could validly emerge. Secondly, the judgment of the Court of 22-1-2004, was affected by another deadly virus which destroyed it resulting in turning it into something else other than a judgment of the Court of Appeal. The judgment delivered by Galadima JCA who did not sit with the panel of the Justices that heard the parties in this appeal on the date fixed for the hearing of the appeal, certainly affected the competence of the Court in the proceedings conducted in the delivery of the judgment which in law is part and parcel of the proceedings in the hearing and determination of the appellants’ appeal. This is because an improperly constituted Court as regards its members, such that no member is disqualified for one reason or another, is not capable in law of exercising the jurisdiction of the Court in delivering a valid judgment. The reason of course is that any defect in competence is fatal as the proceedings are a nullity however well conducted and decided. See Madukolu & Ors. Vs Nkemdilim & Ors. (supra). Obviously, a judicial officer, who had not sat in Court in that capacity to exercise the jurisdiction of the Court in hearing a cause or matter, cannot have the capacity of law to sit in Court and write a judgment or opinion to determine a dispute which he did not participate in the hearing. For this reason, this issue is resolved in favour of the appellant in that the judgment of the Court below delivered on 22-1-2004, is hereby declared a nullity… Per Tobi, JSC Where the Constitution provides for a minimum number of Justices to form a panel and sit in the Court of Appeal, anything short of that minimum will make the panel incompetent and will result in the nullity of the proceedings however ably conducted. A Court is competent when inter alia, it is properly constituted as regards membership and qualification of the members of the bench and no member is disqualified for one reason or another. See Madukolu v. Nkemdilim (1962) All NLR 587, (1962) 2 SCNLR 341 (1986) 5 NWLR (Pt. 45) 802; The Attorney-General of Anambra State v. The Attorney-General of the Federation (1993) 6 NWLR (Pt. 02) 692… … Learned counsel urged the Court to accept the decisions of Justices Aderemi and Chukwuma-Eneh as the majority opinion. I am not with counsel. One can talk of a majority opinion in a situation where the judgment delivered is valid and competent. One cannot talk of a majority opinion in a situation where the judgment delivered is invalid and a nullity ab initio. The issue in this appeal is that the involvement of Justice Galadima in the 5th November, 2003 decision of the Court makes the judgment a nullity. There cannot be a majority opinion in a judgment, which is a nullity. In other words, one cannot procure or salvage a majority opinion from a judgment which is a nullity. That is a legal impossibility.” These authorities have been followed in recent decisions of this Court in Nyesom Vs Peterside (2016) 7 NWLR (PT. 1512) 452 @ 504 – 505 H-A; Kalejaiye Vs Legal Practitioners Disciplinary Committee & Anor. (2019) LPELR-47035(SC) and Adeleke & Anor. vs Oyetola & Ors (2020) 6 NWLR (Pt. 1721) 440.

Per K. M. O. KEKERE-EKUN, J.S.C