Constitution

In all, the proper approach to the construction of the Constitution "should be...one of liberalism; a variation on the theme of the general maxim ut res magis valeat quam pereat. As such, it would be improper to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction, equally, in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends, Nafiu Rabiu v. State (supra) 300-301; A-G of North South Wales v. B.E.U.N.S.W. (supra) 611-612; Bank of New South Wales v. The Commonwealth (supra) 332. Only recently, this Court summed up these prescriptions in Saraki v. F.R.N. [2016] 3 NWLR (Pt. 1500) 531, 631-632, in these words [per Nweze, JSC]: "...one of the guiding posts in the interpretation of the provisions of the Nigerian Constitution is that the principles upon which it [the Constitution] was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions, Global Excellence Communication Ltd v. Duke [2007] 16 NWLR (Pt. 1059) 22; A-G, Bendel v. A-G, Federation [1982] 3 NCLR 1. Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, the construction that is consistent with the smooth working of the system, which the Constitution, read as a whole, has set out to regulate, is to be preferred, Dapianlong v. Dariye [2007] 8 NWLR (Pt. 1036) 239. The principle that underlies this construction technique is that the Legislature would legislate only for the purpose of bringing about an effective result, I.M.B. v. Tinubu [2001] 15 NWLR (Pt. 740) 690; Tukur v. Government of Gongola State [1999] 4 NWLR (Pt. 117) 517, 579; Aqua Ltd v. O.S.S.C. [1985] 4 NWLR (Pt...

The right in this section [that is, Section 36 (6) (b)] and, indeed, the other fundamental rights guaranteed in Chapter IV of the 1999 Constitution, (as amended), were greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR, for short] which, in turn, was influenced by the United Nations' Universal Declaration of Human Rights of 1948. See, per Lord Wilberforce in Minister of Home Affairs v Fisher (1980) AC 319, 329; also, Chima Centus Nweze, "The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement Strategies," in Chima Centus Nweze et al (eds.), Beyond Bar Advocacy (Umuahia, Nigeria: Impact Global Publishers Ltd, 2011) 394; G. Ezejiofor, Protection of Human Rights Under The Law (London: Butterworth's, 1964) 182. This background to these guaranteed rights was the proximate impulsion to the formidable prescription that their provisions should not be subjected to "the austerity of tabulated legalism." On the contrary, they [their provisions] ...call for a generous interpretation ... suitable to give to individuals the full measure of the fundamental rights and freedoms referred to...," Minister of Home Affairs v Fisher (supra). This Court, subsequently, explained the rationale for this interpretive approach in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E. Listen to this eloquent reasoning: Human rights in our written Constitution mark a standard of behavior which we share with all civilized countries of the world. Since the United Nations Universal Declaration of Human Rights in 1948, though it is still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation and...

This Court, in SHITTA-BEY v. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S.C (Reprint) 26, made it clear that the Civil Service Rules (or Public Service Rules) made by the Federal Civil Service Commission, pursuant to the powers vested by the Constitution, govern conditions of service of Federal Public Servants. The Public Service Rules are not only a by-law of the Constitution; they also have added constitutional flavour to the employment governed thereby. They take the relationship between the civil servant and the government beyond the ordinary or mere master and servant relationship.

The Constitution, in the powers or function it has vested in the Federal Civil Service Commission, should be so construed to achieve the purpose and object it is intended to achieve. See F.C.S.C. v. LAOYE (supra). The principle of the interpretation of the Constitution laid down by this Court in NAFIU RABIU v. KANO STATE(1980) 8 – 11 SC 130, 148 – 149 is that the words of the Constitution or statute are not to be read with stultifying narrowness, but are to be read and given the meaning that will effectuate their purpose. See also A. G. FED. v. A.G. ABIA STATE (2001) 7 SC. (Pt.1) 32.

It is crystal clear from the express provisions of Section 153(1)(a), 159(1), and 160, read together with Paragraph II of the Third Schedule of the 1999 Constitution, as amended, that the Public Service Rules are made pursuant to the powers conferred on the Federal Civil Service Commission by the Constitution. See FEDERAL CIVIL SERVICE COMMISSION v. J.O. LAOYE (1989) 4 SC (pt.11) 1; (1989) 2 NWLR (Pt.106) 652. They are accordingly a bye-law of the Constitution. They have been made with the main object and intention of protecting officers, particularly those holding pensionable employment, in the Public Service of the Federation. In interpreting these Public Service Rules, I will choose the approach advocated by Nnamani, JSC in F.C.S.C. v. LAOYE (supra) wherein His Lordship, adopting the opinion of Viscount Simon, L.C. in NOKES v. DONCASTER AMALGAMATED COLLIERIES LTD. (1040) AC 1014, had stated:
"We should avoid a construction which would reduce the Legislation to futility and rather accept the bolder construction based on the view that the Parliament would legislate only for the purpose of bringing about an effective result."

Counsel re-iterated the settled position that, where the provisions of the Constitution are amenable to two meanings, the Court has a duty to opt the meaning that would give force and effect to the Constitution read together as a whole and promote its object and purpose, Kalu v. State (1998) LPELR -1655 (SC); hence, a Court would never lean in favour of an interpretation that would defeat the very essence of the Constitution, Ansaldo Nig Ltd v NPFMB (1991) LPELR -498 (SC).

The exercise of the discretion to convict for offences not specifically charged in the instant case appears capricious. It seems also to usurp the function or prerogative of the prosecutor who, though seized of the facts in Exhibit C, elected in their undoubted wisdom and powers not to charge the appellant on the purported admission. Secondly, the exercise of the discretion, purportedly under Sections 216 and 217 of the CPC, flagrantly violatesSection 36(6)(a) & (b) of the 1999 Constitution that provide:
36. (b)Every person who is charged with a criminal offence shall be entitled to –
a. to be informed promptly in the language that he understands and in detail of the nature of the nature of offence.
b. to be given adequate and facilities for the preparation of his defence.
The purport and intent of Section 36(6) (a) of the Constitution are the poignant or emphatic audi alteram partemwhich also is inherent in Sub-section (1) of the same Section 36. Sections 216 and 217 CPC are not enacted to enable the Courts to gleefully flout and disobey the imperatives of fair hearing dictated by Section 36(6) (a) and (b) of the Constitution.

The consequence of flouting the mandatory or imperative provisions of the Constitution and statutes is that the act, proceedings or decisions done in such violation are illegal, null and void. This Court in IFEZUE v. MADUGHA & ANOR. (1984) 5 SC. (1984) ALL NLR 256 stated that a mandatory or imperative enactment must be obeyed or fulfilled exactly. The effect of failure to strictly comply with a statutory mandatory requirement relating to the procedure of commencing a proceeding or trial is that on appeal the trial or proceeding will be declared a nullity. See KAJUBO v. THE STATE (1988) NWLR (Pt. 73) 721. Such defect is regarded as an illegality, and not a mere irregularity. See: THE STATE v. GWONTO (1983) ALL NLR 109 (1983) 3 SC. 62; SANMABO v. THE STATE(1967) NMLR 3IX at 316-317.

Now on the main question for consideration, if the suit calling for its determination in the original jurisdiction of the Supreme Court as initiated by the plaintiff is proper before this Court. I shall refer to Sections 232(1) and 318 of the 1999 Constitution and Section 20 of the Supreme Court Act relevant to the matter in hand. Section 232(1)& (2) of the 1999 Constitution (as amended), states thus:
The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of legal right depends.
In addition to the jurisdiction conferred upon it, by Subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly."

The above constitutional provision on the Original Jurisdiction of the Supreme Court of Nigeria appears clear and unambiguous. Thus, for this Court to exercise its original jurisdiction in a civil case under Section 232 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the following must exist. That is to say: [1) there must be a dispute between the Federation and a State or States or between States; (2) the dispute must involve a question of law or fact or both and (3) the dispute must pertain to the existence or extent of a legal right. See A.G. of the Federation v A.G. of Abia State (2001) LPELR 24862 (SC).

I shall now examine the law under which the Supreme Court derives its Original jurisdiction. This is provided for in Section 232 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 [as amended] which provides:-
232 (1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether) of law or fact) on which the existence or extent of a legal right depends.
(2) In addition to the jurisdiction conferred upon it by Subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly
Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter.

The salient issue here is whether Section 182 (1)(b) of the Constitution affects or impacts on when tenure is spent-out by operation of Section 191(1) of the same Constitution. The duty of Court, particularly ours as the Apex Court, is to interpret the statute in accordance with the intention of the law makers. In UGWU V. ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 498 this Court stated thus:- "A statute, it is always said, is "the will of the legislature" and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature". The principles of interpretation of the provisions of the Constitution enjoin the Court to interpret the Constitution as a whole taking into consideration, related Sections. The lead judgment of this Court in BRIG. GEN. MOHAMMED BUBA MARWA & ORS. V. ADMIRAL MURTALA NYAKO & ORS (supra) is instructive Quoting the decision in A.T LTD V. A. D. H. LTD (2007) 15 NWLR (Pt. 1056) 118 at 166 – 167, in the lead Judgment, Onnoghen JSC (as he then was; now CJN) stated thus: "The law is settled law that when a Court is faced with the interpretation of a Constitutional provision, the entire provision must be read together as a whole so as to determine the object of that provision. Secondly, it is settled principle of law that where a Court is faced with alternatives in the course of interpreting the Constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail as held inTukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 al 579; I must remember that this Court has said it several times that the provisions of the Constitution ought to be read and interpreted as a whole in that related Sections must be construed together Finally, I must approach from the...

This Court in a recent case involving the appellant Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199 at 387 stated that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day long. Therefore no Court in the land has the power to extend that period of either the 4 years single term or the second term of another 4 years and so if peradventure something such as an illegal impeachment eroded into that 4 year term, it is too bad as that period of infraction cannot be brought back or an extension of time to add up to what was lost. The reason is simple and that is that it is not for the Supreme Court or any other Court in the land to add to or subtract from what the Constitution has provided. The Courts are enjoined to give effect to the clear, plain and unambiguous stipulations in the Constitution. See FRN v. Doriye (2011) 13 NWLR (Pt. 1265). One is constantly reminded that Courts do not give orders in vain and so since the Constitution has decreed a four year tenure for the appellant which was to end on 29th May, 2015 which date had long passed, what the appellant now seeks is akin to a pipe dream which is unreachable in the circumstance on ground and so assuming the argument that learned counsel at the Court below has made a mistake, it is unfortunate but there is nothing the Court can do in relation to that relief No.6 asking for reinstatement as it has been overtaken by events. The spirit of the Constitution is to provide certainty in the polity and to avert instability and so the provision for 4 years tenure which cannot be extended even for one day. See Marwa v. Nyako (supra); Oke v. Mimiko (No.1) (2014) 13880 225 AT 254-255. I cannot resist quoting Onnoghen JSC (as he then was) in All Nigeria Peoples Party (ANPP) v. Alhaji Mohammed Goni & 4 Ors (2012) 7 NWLR (Pt.1298) 147 at 182 where he stated and I quote:- "It has been held...

This brings me to the second leg of the preliminary objection filed by the 1st and 2nd Respondents in their joint brief of Argument also the second leg of the third respondent's sole issue for determination. There is no gainsaying that Courts are donated or conferred with jurisdiction to adjudicate on matters by either the Constitution or statute with regard to some subject matters or suits including appeals. See AG of LAGOS STATE vs. AG FEDERATION (supra).
It must be emphasized also that where a statute or Constitution confers jurisdiction on Court, such serves as a mandate given to it to adjudicate on the matter(s) in question and once a Court is not so conferred with such jurisdiction, it then becomes incapacitated and cannot therefore adjudicate or determine the matter.

On the other hand where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. See
Ariori v. Elemo (1983) 14 NSCC p. 1

Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent.
I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents.
The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. PER GEORGEWILL, J.C.A.

The fundamental right of a Nigerian citizen is guaranteed by the Constitution. It is enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. DIAMOND BANK PLC (2018) 8 NWLR (PT. 1626)270, WEST AFRICAN EXAMINATION COUNCIL VS. ADEYANJU (2008) 9 NWLR (PT. 1092)270 and ODOGU VS. ATTORNEY GENERAL FEDERATION (1996) 6 NWLR (PT. 496)508.
Section 35(1) of the Constitution (supra) guarantees the right to personal liberty and it provides as follows: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with procedure permitted by law – (a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him by law;
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; (d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community;
or (f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto: Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.” The rights guaranteed under Section 35(1) (supra) are not absolute.
It permits restriction on individual liberty in the course of judicial inquiry or where the Defendant/accused person is arrested and detained upon reasonable suspicion of having committed a felony. The liberty of a citizen can also be curtailed to prevent him from committing further offence(s). See KALU VS. FEDERAL REPUBLIC OF NIGERIA (2016) 9 NWLR (PT. 1516)1, DOKUBO-ASARI VS. FEDERAL REPUBLIC OF NIGERIA (2007) 12 NWLR (PT. 1048)320 and ECHEAZU V. COMMISSIONER OF POLICE (1974) NMLR 308. PER OJO, J.C.A.

By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.
This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.
It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V.
COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. PER  GEORGEWILL, J.C.A.

Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent.
I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents.
The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. PER GEORGEWILL, J.C.A.

The fundamental right of a Nigerian citizen is guaranteed by the Constitution. It is enshrined in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. DIAMOND BANK PLC (2018) 8 NWLR (PT. 1626)270, WEST AFRICAN EXAMINATION COUNCIL VS. ADEYANJU (2008) 9 NWLR (PT. 1092)270 and ODOGU VS. ATTORNEY GENERAL FEDERATION (1996) 6 NWLR (PT. 496)508.
Section 35(1) of the Constitution (supra) guarantees the right to personal liberty and it provides as follows: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with procedure permitted by law – (a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a Court or in order to secure the fulfilment of any obligation imposed upon him by law;
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; (d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community;
or (f) for the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto: Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.” The rights guaranteed under Section 35(1) (supra) are not absolute.
It permits restriction on individual liberty in the course of judicial inquiry or where the Defendant/accused person is arrested and detained upon reasonable suspicion of having committed a felony. The liberty of a citizen can also be curtailed to prevent him from committing further offence(s). See KALU VS. FEDERAL REPUBLIC OF NIGERIA (2016) 9 NWLR (PT. 1516)1, DOKUBO-ASARI VS. FEDERAL REPUBLIC OF NIGERIA (2007) 12 NWLR (PT. 1048)320 and ECHEAZU V. COMMISSIONER OF POLICE (1974) NMLR 308. PER OJO, J.C.A.

By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.
This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.
It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V.
COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. PER  GEORGEWILL, J.C.A.

It is clear from the wordings of Section 233(2) and (3) of the 1999 Constitution that any decision of the Court of Appeal that is not listed in Subsection (2) as appealable as of right cannot be appealed against unless the leave to appeal is obtained from either the Court of Appeal or this Court. See ENYIBROS FOOD PROCESSING COMPANY (NIG) Ltd & Anor v. N.D.I.C & Anor (2021) LPELR-55330 (SC); STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & Anor (2017) 18 NWLR Pt. 1598 Pg. 431; F.B.N. Plc v. T.S.A INDUSTRIES LTD (2010) 15 NWLR Pt. 1216 Pg. 247; MAIGORO v.
GARBA (1999) 10 NWLR Pt. 624 Pg. 555 . PER HELEN MORONKEJI OGUNWUMIJU, J.S.C

It is well-known, the right of appeal to this Court neither exists in vacuo nor in nubibus. It [the said right of appeal] is either created by statute or by the Constitution. It thus, does not derive from any other source such as the Court’s inherent jurisdiction or the common law. See W.A.E.C v Adeyanju [2008] 9 NWLR (pt. 1092) 270, Adigun and 2 Ors v The Attorney-General of Oyo State and 18 Ors [1987] 2 NWLR (pt. 56) 197; [1987] 3 SCNJ 118, Ugwuh v Attorney-General East Central State [1975] 6 SC 13, National Bank of Nigeria Ltd v Weide and Co, (Nig,) Ltd and Ors[1996] 10 SCNJ 147.
PER CHIMA CENTUS NWEZE, J.S.C.

It is trite that the object of interpreting a Statute or the Constitution is to discern the intention of the Legislature and that can only be determined through the language used in the Statute or Constitution. Hence, where words used in the Constitutional Provisions or Statute are clear, plain, and unambiguous, they are to be construed in their literal and ordinary meaning. Reference is made to the decided Case Authorities GANA VS SDP & ORS (2019) LPELR-47153 (SC), MARWA & ORS VS NYAKO & ORS (2012) LPELR-7837 (SC) ABEGUNDE VS ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC).
The understanding is that except for the Right of Appeal as provided under Section 243 (2) of the 1999 Constitution and Section 9(1 – 2) of the National Industrial Court Act 2006, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any matter in which jurisdiction is conferred on the National Industrial Court, it shall be as prescribed by an Act of the National Assembly.
Provided however that where such Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal on any matter, such appeal shall be by Leave of Court.
Therefore, in other words, except for the provisions of Section 243 (2) where an aggrieved Party can appeal as of right as far as it relates to questions of Fundamental Rights as contained in the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as it relates to matters under which the National Industrial Court has jurisdiction, an appeal on any other matter shall be as prescribed by an Act of the National Assembly.
In SKYE BANK PLC VS IWU (2017) 16 NWLR (PART 1590) SC PAGE 24 AT PAGE 147, the Supreme Court Per KEKERE–EKUN, JSC held as follows: “The combined provisions of Sections 36(2) (b), 240, 243 and 254C(5), (6) of the 1999 Constitution (As Amended) creates a right of appeal from a decision of the National Industrial Court to the Court of Appeal. Such an appeal is as of right in fundamental rights cases and criminal matters, and with leave of the Court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction.” PER BANJOKO, J.C.A.

The position of the law is very explicit that by virtue of the provision of Section 1 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Constitution which is the grundnorm and fountain of all laws in Nigeria is supreme. Any other law which is inconsistent with the provision of the Constitution is, to the extent of such inconsistency, void. See Egbuchu v. Continental Merchant Bank Plc (2016) 8 NWLR (pt. 1513) 192: Ochala v. Federal Republic of Nigeria (2016) 17 NWLR (pt 1591) 169. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
Any challenge to jurisdiction of a Court or Tribunal is not merely important, but most fundamental to adjudication process. Thus, it can be raised at any material stage of the proceeding, by the parties, or even suo motu by the Court. As such, once raised, the question or issue of jurisdiction must be resolved by the Court or Tribunal before proceeding, if at all necessary, to determine the action or appeal on the merits. It was aptly reiterated in DADA VS SIKUADE (2014) 17 NWLR (Pt. 1435) 72: (An issued) Jurisdiction should be determined at the earliest opportunity.
This is because if a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

What the above means is that Section 39 of the 1999 Constitution as amended, which is relevant for our purposes here, cannot operate, to invalidate any law promulgated by any legislative body, when that law is made in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons. So when Section 39(1) of the Constitution entitles a person to freedom of expression and imparting ideas and information, it is not a blanket right.
It must not be utilised or invoked in such a way, that it offends public safety, order, morality and health, and it must not be injurious to the rights and freedom of other persons. Once a person lives in a community, his rights stop where the rights of the other members of the community begin. He has to behave according to the norms of that society, otherwise his conduct will be injurious to the wellbeing and continued existence of that community. He cannot, in the guise of exercising his freedom of expression or imparting information, trample upon the rights of other persons in the society.
He must not act in such a way that he defames their character or endanger their safety, health, order or morality. The Constitution recognizes the fact that if such a person acts to the detriment of others, he can be liable in a civil action, but the issue goes beyond the right of an injured individual to act. The whole society has to be involved to protect itself. Hence, criminalising such conduct of the individual. That is why Section 45(1) of the Constitution was promulgated . ABDU ABOKI, J.S.C.

Endorsing the above adumbrated decision of the Court below, my learned brother in his lead judgment, opined thus: “The right to freedom of expression expressed by Section 39 of the Constitution… Section 45(1)(b) subject to any law reasonably justified in a democratic society for the purpose of protecting the rights and freedom of other persons.
Although Section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in Sections 37, 38, 39, 40 and 41, derogations must be legal, that is, made under a law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others …”. ABDU ABOKI, J.S.C.

This must be considered against the backdrop or the primacy of the right of appeal, which is considered as sacrosanct. See Abubakar v Yaradua (2008) 4 NWLR Pt 1078, 465, 496, Edjekpo v Osia (2007) 29 NSCLQR 842, 866, Yekini Afosi v State (2008) 33 NSCQLR 1445, 1448, Bello v Attorney General of Oyo State (1986) 5 NWLR (Pt 45) 828, 848. FBN PLC v Agbara (2020) 15 NWLR (Pt 1748) 537, 551, APC v Karfi (2018) 6 NWLR (Pt 1616) 479, 506. The right of appeal is a constitutionally guaranteed right, albeit regulated by statute. It is not a right that is easily divested.
This Court should be reluctant to find against the exercise of this right in the absence of clear a  nd unambiguous statutory provisions. The Court attaches the same primacy to the related rights of access to Court and fair hearing. See Transnav P.N. Ltd v Velcan E.H.D. Ltd (2020) 7 NWLR (Pt 1723) 293, 316-317, Tyonex (Nig) Ltd v Pfizer Ltd (2020) 1 NWLR (Pt 1704) 125 166.
Section 580 of the Companies and Allied Matters Act is not a bar to proceedings in this case as the trial Court had the jurisdiction to proceed with the winding up proceedings, entertain any matter or application arising therein, including the Motion of 26/01/1995, and to dispose of same. The failure of the 1st Respondent to obtain leave to proceed within the proceedings at the trial Court and the Court below does not contravene Section 580 of Companies and Allied Matters Act. HELEN MORONKEJI OGUNWUMIJU, J.S.C.

The central argument of the Appellant under this issue is that the offence of conspiracy to commit armed robbery for which he was convicted by the trial Court was not defined as required by Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN).
Section 36(12) of the CFRN relied upon by the Appellant provides: Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.
In interpreting Section 33(8) of the 1979 Constitution, which is in pari materia with the above quoted Section 36(12) of the CFRN, the Supreme Court, per Karibi-Whyte, JSC held in SELE v STATE (1993) LPELR-3030(SC), that: “It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality.
It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever. (page 18 para. A).” PER MOHAMMED, J.C.A

The jurisdiction of the Sharia Court of Appeal under the Constitution of the Federal Republic of Nigeria 1999 (as amended) has been circumscribed at Section 277 of the Constitution (as amended) such that the Sharia Court of Appeal can only entertain and determine questions concerning or relating to Islamic Personal Law as itemised at Section 277(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Sharia Court of Appeal is thus, prohibited from entertaining disputes or appeals that relate to ownership of or title to land. See Maida vs.
Modu (2000) 4 NWLR (pt. 651) 99, 109. Sale vs. Babale (2018) 6 5 QRL (pt. 1) 33 (CA). ​The judgment appealed against at the Sharia Court of Appeal, Gusau, is at pages 61-70 of the record of appeal wherein the Court at pages 69-70 of the record alluded to the issue relating to disputes as to the acquisition, ownership of and title to land and in that regard, affirmed the decision of the Upper Sharia Court, Shinkafi. Of course the Sharia Court of Appeal lacks the jurisdiction to veer into that area of the law let alone assume jurisdiction over same.
Refer further to the decision in Haruna & Anr. vs. Suleiman & Attorney General Zamfara State (2014) 2 SQLR (pt. iv) pt. 521; Ziga vs. N. A. Mumuan (2016) 4 SQRL (pt. 11) pt. 245 ratio 5. The Sharia Court of Appeal cannot sit to adjudicate a case of claim for title or ownership of landed properties hence, the decision of the Sharia Court of Appeal reached on the 16th January, 2020 in this regard, is a nullity. The appeal in effect succeeds and same is allowed on Issue No.1. PER HUSSAINI, J.C.A.

The right of appeal to the Court of Appeal from the decisions of the Federal High Court or State High Court is provided for by Sections 241, 242 and 243 of the 1999 Constitution (as amended) and Section 24 Part (v) of the Court of Appeal Act, CAP 36 LFN, 2004. Section 241(1) has clearly given situations where appeals from the Federal High Court or a High Court to the Court of Appeal as of Right.
Whereas Section 242(1) has made provision subject to the Provision of Section 241 of the Constitution above for situations where the leave of the lower Court or their Court would be required before an appeal could be competently filed. The law is that an appeal from the decision of a High Court given in its Appellate jurisdiction requires the leave of Court, either of the High Court or the Court of Appeal. See, PRINCE ADELUYI BUSUYI VS. COMMISSIONER OF POLICE (2016) LPELR–40864.
In such a situation, it is immaterial that the decision is a final one, where the issues involved are of law alone or facts or mixed law and facts. The leave of the Court is required before a competent appeal could be filed. In DANLADI DEME & ORS VS. ALABI RWANG & 1 OR (2010) LPELR–4032 in this Court, his lordship Rhodes–Vivour, JCA (as he then was) held that: “An appeal from the decision of a High Court delivered in its Appellate jurisdiction requires the leave of the High Court or this Court and non-compliance renders the appeal incompetent.” See, KAKALE & ANOR VS.
NOMA(2018) LPELR–44657 (CA). Therefore, the absence of leave having been sought and granted in the present appeal which arose from the decision of the High Court delivered in its appellate jurisdiction renders the appeal incompetent and robs the Court of the jurisdiction to hear and determine the appeal. See, also UKPONG VS. CFF (2006) 19 NWLR (PT. 1013) 187. The requisite leave is a condition precedent to the exercise of the Right of Appeal under Section 242(1) of the Constitution.
Without fulfilling the required condition precedent, of obtaining the leave of Court before the appeal was filed, no right of appeal would be vested on the Appellants. The failure in this case of the Appellants to have obtained the requisite leave as prescribed by Section 242(1) of the Constitution is fatal to the Appellants’ Appeal which is incompetent. See, AREMU & ORS VS. IMMAM (2016) LPELR–41243 (CA) PP. 2–3 PARAS. F–C, AYANBOYE VS. BALOGUN (1990) 5 NWLR 392 at 410, MOSOBA VS. ABUBAKAR (2004) LPELR–5252 (CA) PP. 7–9, PARA. A and IFEAJUNA VS.
IFEAJUNA & ANOR (1998) LPELR–6181 (CA) P. 16, PARAS. A–D, his lordship Akpabio, JCA in a similar condition that arose where the required leave to appeal against the decision of the High Court in its appellate jurisdiction held thus: “…since the appeal of the appellant was against a decision of the High Court sitting in its appellate jurisdiction, and not as a Court of first instance, leave of the said High Court or of this Court should have been obtained (see S. 221 (1) of the Constitution of the Federal Republic of Nigeria (1979).
Since no such leave has been obtained, the appeal is incompetent for failure to comply with a condition precedent. It is accordingly also hereby struck out by me with N2,000.00 costs in favour of respondent.” PER UWA, J.C.A.

By Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, 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.
This provision is express and specific on the fact that every Court established under the Constitution inclusive of the trial Court shall deliver its decision in writing not later than 90 days after conclusion of evidence and final addresses. This provision is mandatory. Failure to comply with the provision has two pronged repercussions. Firstly, the decision is liable to be set aside on appeal if the appellate Court is satisfied that such a breach has caused the appellant to suffer a miscarriage of justice.
Secondly, the judge who caused the breach is liable to be reported to the National Judicial Council (NJC).
The appellate Court who is reviewing the decision that was delivered out of the time of ninety days should not primarily set aside the decision or treat the decision as a nullity on the face value by the reason of such non-compliance with Section 294(1). The appellate Court is enjoined to consider the complaint of the appellant and deal with it, if it is satisfactorily shown that such non-compliance with Section 294(1) of the Constitution has occasioned a miscarriage of justice to the appellant.
In essence, failure by the Court concerned to deliver judgment within 90 days from conclusion of evidence and final address does notipso facto render such a judgment automatically null and void and of no effect. Such a decision shall only be set aside or treated as a nullity by the appellate Court if it is satisfied that the appellant or complainant has suffered a miscarriage of justice thereby. See Owoyemi v. Adekoya & Ors (2003) 18 NWLR (Pt. 852) 307, Akpan & Ors v. Umoh & Ors (1999) LPELR – 375 (SC), State v. Kapine & Anor (2019) LPELR-49511 (SC). PER ADAH, J.C.A.

In Marwa & Ors v.
Nyako & Ors (2012) LPELR 7837 (SC), this Court, in reaffirming the supremacy of the Constitution, stated as follows: “The supremacy of the Constitution of the Federal Republic of Nigeria 1999 is captioned by Sections one and three, Part 1 of Chapter 1 under general provisions which state that: Section 1 “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Sub-Section 3 “If any other law is inconsistent with the provisions of this Constitution shall prevail and that other law shall to that extent of the inconsistency be void.” ABDU ABOKI, J.S.C.

By the provision of Section 1 of the 1999 Constitution, the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. See Cadbury (Nig) Plc v FBIR (2010) 2 NWLR (pt. 1179) 561, Governor of Ekiti State v Olubunmo (2017) 3 NWLR (pt.1551)1. JOHN INYANG OKORO, J.S.C.

It is a cardinal doctrine of interpretation, that the words of a Constitution ought not be construed with debilitating or stultifying narrowness. See UNITED STATES VS. CLASSIC 313 US 299; NAFIU RABIU VS. KANO STATE (1981) 2 NWLR 293; AG FEDERATION VS. AG ABIA STATE (supra) per Uwais, CJN @ 21 paragraphs A-F. Thus, whenever a Court is inevitably confronted with the interpretation of a constitutional provision, as in the instant case, the provisions of the Constitution as a whole ought to be read in determining the object of the provision. See NAFIU RABIU VS.
THE STATE (1980) 8-11 SC 130 @ 148; (1980) 8-11 SC (Reprint) 85. I think, it was in JUSTICE RALIAT ELELU-HABEEB (CHIEF JUDGE OF KWARA STATE) VS. AG FEDERATION (2012) 2 SC (pt. 1) 145, that this Court aptly reiterated the trite fundamental doctrine: The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein.
A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

The President has no Constitutional or legal right or power to request or compel the National Assembly to amend or make an Act. No part of the Constitution gives him such right or power. One of the hallmarks of our Constitutional democracy is separation of powers of government. The executive, legislative and judicial powers of the government of the Federation or of a State are separated and each vested on each of the three main arms of government by Ss. 4, 5 and 6 of the 1999 Constitution. Section 4 of the said Constitution vest the legislative power on the legislature.
Section 5 vests the executive power on the executive and Section 6 vests the judicial power on the judicature (the Courts). This separation of the said powers and the vesting of each in an arm of government requires that each arm exercises its power separately and independent of the other except where the Constitution expressly provides otherwise. There is no part of the 1999 Constitution that makes the exercise of the legislative powers of the National Assembly subject to the direction and control of the President of Nigeria . PER EMMANUEL AKOMAYE AGIM, J.S.C.

Where the issue of failure to comply with the said Section of the Constitution arises, the failure per se will not automatically vitiate or nullify the judgment. In such a situation, it has been admonished that the appellate Court should examine the judgment and even where it was not delivered within the time stipulated by the Constitution, the judgment should not be treated as a nullity, if no miscarriage of justice has been occasioned to the appellant.
Whether or not the party complaining of non-compliance with Section 294(1) of the Constitution has suffered a miscarriage of justice will depend on the facts and circumstances of the case. Where the evaluation of the evidence, tendered by the parties, would depend largely on the credibility of the witnesses who testified, inordinate delay in delivering a trial Court’s judgment would invariably lead to a miscarriage of justice, as the trial Court could be inferred to have lost recollection of vital conduct or demeanour of the witnesses, or some of the vital witnesses, who testified.
Where the complaint is on failure by a trial Court to deliver its judgment within time, the appellant must also show that the failure occasioned a miscarriage of justice. In this respect, the Court has a duty to examine the judgment with a view to determining whether the non-compliance actually occasioned a miscarriage of justice. Where the non-compliance with the constitutional time for delivering a judgment did not occasion any miscarriage of justice, an appellate Court will not disturb the judgment of the lower Court. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandates every Court established under the Constitution to deliver its decision in writing not later than ninety days after conclusion of evidence and final addresses, and to furnish the parties with duly authenticated copies of the decision within seven days of its delivery.
When read alone, this subsection of Section 294 of the Constitution would appear to have imposed a sacrosanct timeline of ninety days within which every Court must deliver its decision after final addresses, such that any decision not delivered within that timeline of ninety days becomes unconstitutional and therefore null and void.
However, this is not exactly so, because, Subsection (5) of the same Section 294 goes further to provide as follows: (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.
By the provisions of Subsections (1) and (5) of Section 294 of the Constitution therefore, a decision of Court delivered after the ninety days stipulated in subsection (1) will not ordinarily be a nullity until declared so by an appellate Court upon being satisfied by the party complaining that he has suffered miscarriage of justice, as provided in Subsection (5).
In other words, the “shall” used in Section 294(1) is not regarded as mandatory but directory, recognizing that there may be imperative reasons that could prevent judgments from being delivered within the ninety days stipulated: ATUNGWU & ANOR v OCHEKWU (2013) LPELR-20935(SC), per Alagoa, JSC at pages 47–48, paras. C–C. Thus, where there is a delay in the delivery of judgment, the onus is on the party complaining to satisfy the appellate Court or Court of review that he has as a result of the delay suffered miscarriage of justice.
See: AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC), per Onnoghen, JSC (as he then was) at page 41, paras. B–D; and OWOYEMI v ADEKOYA & ORS (2003) LPELR-2858(SC), per Iguh, JSC at page 33 paras. A–E. PER MOHAMMED, J.C.A.

The imperative for every Court of law established under the Constitution to render its decision “not later than ninety days of conclusion of evidence and final addresses” has agitated and has been agitated in our Courts from time to time, and there is no paucity of dicta in this aspect of our adjectival law.
The Constitution provides in s. 294(1) 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 and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”; and in S. 294(5) that: “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”.
The above constitutional provision is clear as crystal and admits of no ambiguity, but it is needful to underscore two crucial points. The first is that even though S. 294(1) talks about delivery of judgment “not later than ninety days after conclusion of evidence and final addresses”, computation of time does not begin from the date of conclusion of evidence per se, but from the date of adoption of final addresses which often takes several weeks, if not months, after conclusion of evidence as provided in the various rules of Court. PER AFFEN, J.C.A.