Can A Judge Elevated To The Court of Appeal Return To The High Court To Conclude the Hearing and Determination of a Part Heard Matter?

CASE CITATION: OBIANWUNA OGBUNYIYA & ORS. v. OBI OKUDO & ORS. (1979) 6-9 S.C. (Reprint) 24 @ 32 -35 Para 40 – 40

DATE OF JUDGMENT: THURSDAY, THE 5TH DAY OF JULY, 1979

COURT: SUPREME COURT

SUIT: SC. 13/1979

CORAM:

GEORGE S. SOWEMIMO (Presided)
MOHAMMED BELLO
CHUKWUNWEIKE IDIGBE
KAYODE ESO
ANTHONY N. ANIAGOLU (Delivered the Leading Judgment)

ISSUE(S): Whether A Judge Elevated To The Court of Appeal Can Return To The High Court To Conclude the Hearing and Determination of a Part Heard Matter?

CASE SYNTHESIS

The submission of learned counsel for the appellants, Chief F.R.A. Williams, is that by virtue of the appointment of Nnaemeka-Agu, J., (as he then was) as expressed in Exhibit SC.1, he ceased to be a Judge of the High Court of Anambra State on the 15th June, 1977, two days prior to delivery by him of the judgment now on appeal. Chief Williams also prayed in aid of his contention the decision of the Federal Court of Appeal holden at Ibadan in Sodeinde (supra). Mr. Afolabi Lardner, learned counsel for the respondents contended that until the learned Judge was sworn he was precluded by virtue of Section 128 of the Constitution of the Federation No.20 of 1963 from entering upon the duties of his office, so that in the absence of evidence that he had on or prior to the 17th day of June, 1977 been sworn as a Judge of the Federal Court of Appeal, he was on that date still a Judge of the High Court of Anambra State. Beyond the observation that the decision in Sodeinde (supra) really turned on the operation of Section 5(3) of the States (Creation & Transitional Provisions) Decree No.12 of 1976 we would say no more of the decision in Sodeinde (supra); nor do we think it necessary for our determination of the question in this appeal to deliberate on the issue of the doctrine of stare decisis and the question whether upon that principle the Court of Appeal was bound to apply the decision in Sodeinde (supra) to the case in hand. Section 128 of the Constitution of the Federation No.20 of1963 as amended by Section 1(c) of the Schedule to The Constitution (Amendment) (No.2) Decree No. 42 of 1976 makes it imperative that “a Judge of the Federal Court of Appeal” shall not enter upon the duties of his office unless he has taken or “subscribed the Oath of Allegiance and such oath for the execution of the duties of his office as may be prescribed by Parliament.” A close look at Section 128 of the Constitution (No.20 of 1963) as amended by the Schedule to Decree No.42 of 1976 shows clearly that the section is intended to lay down a condition precedent to the functioning but NOT the appointment of a Judge. That section impliedly recognizes the fact of appointment (already as a Judge) of the incumbent of that public office but makes the swearing of the prescribed oaths conditions precedent to his functioning in that office. The language of the section reads:

“A Judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos (NOT a person appointed to be a Judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos) shall not enter upon the duties of his office (NOT, be it noted, enter upon his office) unless he has taken or subscribed the Oath of Allegiance and such oath for the due execution of his office as may be prescribed by Parliament.” (Brackets and underlining supplied by court)

The employment of the phrase in brackets in the above quotation would indicate that a person appointed to be a Judge becomes one (i.e. such a Judge) only after oath has been made and subscribed by him. Here, however, the language of Section 128 aforesaid is directed to the entering by a Judge (not by a Judge designate) upon the duties of his office (not, upon his office).

In the case of Shabbir v. The State, a view similar to that already expressed in our consideration of the language of Section 128 of our Constitution was also taken of the language of a corresponding section of the Indian Constitution. In that case (Shabbir), Article 219 of the Constitution of India (in force in 1965) was under consideration. Article 219 reads:-

“Every person appointed to be a Judge of a High Court shall, before he enters upon his office make and subscribe before the Governor of the State or some person appointed in that behalf by him, an oath of allegiance according to the form set out for the purpose in the third schedule. ”(Underlining supplied.)

In the course of the judgment of the court in Shabbir (supra), Jagdish Sahai, J., (with whose judgment Mahesh Chandra, J., concurred) observed:

“It admits of no argument that a person appointed to be a Judge of a High Court can only enter upon his office after making and subscribing the oath required by law. It is the performance of the oath that marks the induction into office. It would be noticed that Article 219 of the Constitution uses the words ‘every person appointed to be a Judge of a High Court’ and not ‘every person appointed a Judge of a High Court’ which would indicate that a person appointed to be a Judge becomes one only after oath has been made or subscribed by him. Before that he is what may be called a Judge designate………….”(Underlining supplied by this court.) (See Shabbir v. The State (1965) A.I.R. (Allahabad) 97 at 99 per Jagdish Sahai, J.)

Now, let us take a look at Exhibit SC(1)(Government Notice No. 1258 in the October Gazette). That notice states that:

It cannot possibly admit of any argument from the underlined portion of the said notice that the appointment of Nnaemeka-Agu, J., as a Judge of the Federal Court of Appeal was intended to and did take effect from the 15^th June, 1977

One of the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the context which shows that such a course would tend to derogate from the exact meaning of the words. On the above principles of construction of written instruments, the contents of Exhibit SC(1) can have no other meaning than that the appointment of Nnaemeka-Agu,J., as a Judge of the Federal Court of Appeal was intended to, and did, take effect from the 15th day of June, 1977. An express provision in an instrument excludes any stipulation which would otherwise be implied with regard to the same subject matter – expressum facit cessare tacitum. In the circumstances, there is no room for the view, in the face of the express language (of Exhibit SC.(1)), that the appointment of Nnaemeka-Agu,J., as a Judge of the Federal Court of Appeal was intended to take effect at a date subsequent to 15th June, 1977, or that as a measure of convenience the Judge was to continue to function as a High Court Judge until such time as he may conveniently function in his new office in the Federal Court of Appeal.

From the foregoing observations, we are satisfied that (1) it was the intention of the Supreme Military Council-as expressed in Exhibit SC(1)- that (1) the appointment of Nnaemeka-Agu, J., as a Judge of the Federal Court of Appeal should, and did, take effect from the 15th June, 1977, and, (2) on that date (15^th June,1977) he ceased to be a Judge of the High Court of Anambra State, and (3) when, therefore, on the 17th day of June, 1977, he gave the judgment now on appeal he did so without jurisdiction. Accordingly, the Court of Appeal erred in law in rejecting the contention of the appellants that the judgment in these proceedings is null and void.