Lawbreed BlogLawbreed Blog
  • Home
  • News Update
  • Legal Updates
  • Free Legal Resources
  • Law News
  • More
    • Legal Articles & Commentaries
    • Recent Events
    • Promotions
    • About Us
    • S.C Report Online
    • S.C Report Printed Editions
Facebook Twitter Instagram YouTube LinkedIn WhatsApp
Facebook Twitter Instagram YouTube LinkedIn WhatsApp
Lawbreed BlogLawbreed Blog
  • Home
  • News Update

    Court Sentences Former Chief Pharmacist Of National Hospital, Abuja To Life Imprisonment For Sodomy

    September 20, 2023

    Kano Tribunal Sacks Gov Yusuf, Declares APC’s Gawuna Winner

    September 20, 2023

    Court sentences driver 10 years imprisonment over drug trafficking

    September 15, 2023

    Illegal toll: IGP orders CPs to dismantle all unauthorised checkpoints, arrest violators

    September 15, 2023

    Rivers Governorship: Tribunal reserves judgment in Tonye Cole’s petition

    September 15, 2023
  • Legal Updates

    The Implications of ChatGPT for Legal Services and Society

    March 13, 2023

    Abia Assembly Passes Bill Allowing Female Children Share in Parent’s Inheritance

    November 25, 2022

    Industrial court issues new Practice Directions on labour matters

    October 6, 2022

    Step By Step Guide on how to register a ship in Nigeria

    September 8, 2022

    Buhari Swears In Ariwoola As Acting Chief Justice Of Nigeria

    June 27, 2022
  • Free Legal Resources

    Download: 12-hour marathon judgement delivered by the Presidential Election Petitions Court

    September 9, 2023

    (Download Judgment) It’s Unconstitutional, Unlawful For Minister To Deduct From Or Tamper With Financial Allocations To States — FHC Rules

    June 27, 2023

    Court Upholds FG’s ‘No Work No Pay’ Policy In Suit Against ASUU

    May 30, 2023

    Download Gazette on Revocation of Operating Licence Of Microfinance Banks Licences By CBN

    May 24, 2023

    DOWNLOAD THE GAZETTED COPYRIGHT ACT 2023

    April 10, 2023
  • Law News

    NBA Endorses ‘Igbaboi’ Igbo Apprenticeship For Lawyers

    September 20, 2023

    CJN Ariwoola Expresses Concern Over Rising Number Of Political Cases In Nigerian Courts

    September 20, 2023

    CJN Swears in New Court of Appeal Justices

    September 20, 2023

    Alleged ‘Undue Influence On Wife’s Judgements’; Court Rejects Bulkachuwa’s Suit To Halt ICPC, DSS Probe Against Him

    September 19, 2023

    Court Awards ₦100 Billion Damages Against NNPC, LNG, And NCDMB For Breach Of Lease Agreement Compensation In Favor Of Finima Community

    September 19, 2023
  • More
    • Legal Articles & Commentaries
    • Recent Events
    • Promotions
    • About Us
    • S.C Report Online
    • S.C Report Printed Editions
Lawbreed BlogLawbreed Blog
Lawbreed Blog » 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?
Legal Updates

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?

Lawbreed LimitedBy Lawbreed LimitedMay 15, 2020Updated:May 16, 2020No Comments
Facebook Twitter Pinterest LinkedIn WhatsApp Reddit Tumblr Email
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?
Share
Facebook Twitter LinkedIn Pinterest Email

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:

  1. GEORGE S. SOWEMIMO (Presided)
  2. MOHAMMED BELLO
  3. CHUKWUNWEIKE IDIGBE
  4. KAYODE ESO
  5. 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 15th June, 1977

[mks_button size=”medium” title=”READ ALSO: Can The Court Grant A Stay of Execution To A Party in Disobedience of Its Orders?” style=”squared” url=”https://lawbreed.blog/can-the-court-grant-a-stay-of-execution-to-a-party-in-disobedience-of-its-orders/” target=”_blank” bg_color=”#dd9933″ txt_color=”#FFFFFF” icon=”” icon_type=”” nofollow=”0″]

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 (15th 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.

This appeal succeeds and the same is allowed. It is hereby ordered that the judgments of both the Federal Court of Appeal of the 9th day of March, 1979, in Suit FCA/E/135/78 and the High Court of Anambra State of the 25th day of June, 1976, in Suit O/71/58 together with costs awarded in each case against the appellants, be and are hereby set aside; and in substitution thereof, it is hereby ordered that the claims of the respondent (as Plaintiffs) against the appellants (as defendants) in Suit O/71/58 be heard de novo in the High Court of Anambra State holden at Onitsha. –  IBRAHIM UMAR & 22 ORS. v. ALL PROGRESSIVES CONGRESS (2018) 7-10 S.C. 195 @ 209-211 Para 5-25
[mks_button size=”medium” title=”Click Here To Read Full Judgment” style=”rounded” url=”https://www.lawbreed.com/site/search-for-case/?case_ref=3223″ target=”_blank” bg_color=”#000000″ txt_color=”#FFFFFF” icon=”” icon_type=”” nofollow=”0″]
SEE FURTHER: OUR LINE LIMITED v. S.C.C. NIGERIA LIMITED & 2 ORS. (2009) 6-7 S.C. 145 @ 158 – 163 – CLICK HERE TO READ JUDGMENT
SEE ALSO: The recent case of: UDEOGU v. FRN & 2 ORS – SC.622/19 decided by the Supreme Court on 8th May, 2020

Share this:

  • Twitter
  • Facebook

Related

Share. Facebook Twitter Pinterest LinkedIn Tumblr Telegram Email
Lawbreed Limited
  • Website
  • Facebook
  • Twitter
  • Instagram
  • LinkedIn

Publishers of Judgments of The Supreme Court of Nigeria (S.C Report) - on the Authority of the Supreme Court of Nigeria

Related Posts

The Implications of ChatGPT for Legal Services and Society

March 13, 2023

Abia Assembly Passes Bill Allowing Female Children Share in Parent’s Inheritance

November 25, 2022

Industrial court issues new Practice Directions on labour matters

October 6, 2022

Comments are closed.

Like Our Page
Lawbreed Limited
DARK HEARTS by Layi Babatunde, SAN – CLICK TO BUY
DARK HEART BY LAYI BABATUNDE, SAN
Top Posts

Finance Act, 2019 – Discover The Plus And Minus Of It – Click To Download

March 4, 2020

Holding Property Jointly – By Layi Babatunde, Esq

March 4, 2020

Is Your Deed Truly Delivered? – By Layi Babatunde, Esq.

March 4, 2020

It Is Unprofessional Conduct For Counsel To Walk Out On Or From The Court

March 4, 2020
QUALITY BOOKS & LAW REPORTS BREEDS QUALITY PRACTICE
https://lawbreed.blog/wp-content/uploads/2020/10/Law-Breed_x264.mp4
Don't Miss
Law News

NBA Endorses ‘Igbaboi’ Igbo Apprenticeship For Lawyers

By Lawbreed LimitedSeptember 20, 2023

The Nigerian Bar Association (NBA) has endorsed the Igbo apprenticeship system known as ‘Igbaboi’ as…

Share this:

  • Twitter
  • Facebook

Nigeria’s Tax Treaties And Foreign Tax Credit Claims Computation -By Dr Kennedy Iwundu

September 20, 2023

Court Sentences Former Chief Pharmacist Of National Hospital, Abuja To Life Imprisonment For Sodomy

September 20, 2023

CJN Ariwoola Expresses Concern Over Rising Number Of Political Cases In Nigerian Courts

September 20, 2023

CJN Swears in New Court of Appeal Justices

September 20, 2023
Stay In Touch
  • Facebook
  • Twitter
  • Pinterest
  • Instagram
  • YouTube
  • Vimeo

Subscribe to get Updates

Get the latest creative news delivered to your email. subscribe now

Supreme Court Report Online (My S.C Extra)
s.c online
About Us
About Us

Lawbreed Blog is owned by Lawbreed Limited, a full fledged Law publishing and marketing Private Limited Liability Company, incorporated under the Laws of the Federal Republic of Nigeria.

Email Us: mails@lawbreed.com
Contact: +2348077011730

Facebook Twitter Instagram YouTube LinkedIn WhatsApp
Tags
#2023Election Adeleke AMCON APC Atiku Bandits Bill BOSAN Buhari BVAS CBN CJN Covid crime feat feature featured FIRS Fraud ICPC INEC Judgements of the Supreme Court of Nigeria kano Labour Party metro Multichoice NBA New Naira Notes NICArb NICN NJC NPC NUC o Obi oransaye Osun State Owo massacre practice directions SAN Shar'iah Tax Tinubu Twitter VAT
Most Popular

Finance Act, 2019 – Discover The Plus And Minus Of It – Click To Download

March 4, 2020

Holding Property Jointly – By Layi Babatunde, Esq

March 4, 2020

Is Your Deed Truly Delivered? – By Layi Babatunde, Esq.

March 4, 2020
© 2023 Lawbreed.blog. Powered by Lawbreed Ltd.
  • Home
  • About Us
  • Contact Us
  • Privacy Policy
  • S.C Report Online
  • Our Publications
  • Lawyers Directory

Type above and press Enter to search. Press Esc to cancel.