JUDGMENT
T.K. ADZOE, J.S.C.:
The issues for determination in
this appeal are of great
interest. They are also not very
simple. They include the
following which I identify as
the major ones.
(1) Is the judicial committee
of the Regional House of Chiefs
bound in law by Rule 11 of C.I.
27, (the National and Regional
House of Chiefs (Procedure)
Rules 19 -) to give the reasons
for its judgment at the time
that the judgment is announced?
Otherwise stated, is it wrong
for the Judicial Committee to
announce its judgment and
reserve for another date the
reasons for the judgment?
(2) Does the law require the
Judicial Committee to deliver
judgment Within a limited period
of time after the close of the
hearing of the Case?
(3) If there is a time limit
for the delivery of a judgment,
then what is the effect of a
judgment in which reasons are
not stated but reserved and not
given within the period for
delivery of the judgment?
The first issue was raised
before the High Court; issue (2)
came up in the Court of Appeal
and has extended to issue (3)
before us. The facts will help
us to understand the problem.
On 23rd September, 1996, the
Judicial Committee of the
Central Region House of Chiefs
announced its decision in a
chieftaincy suit involving the
appellants herein. They were the
Respondents to a chieftaincy
petition filed before the
Judicial Committee by one
Michael Conduah. The parties
hail from the Edina Traditional
Area and the dispute was over
succession to the Omanhene Stool
of that Traditional Area. The
decision announced by the
Judicial Committee was brief and
clear. I quote it in full.
"After listening to the parties,
their counsel and after reading
the evidence adduced, we hold
the opinion that the
Petitioner's claim should be
upheld. Reasons will be given
later. Costs assessed at
¢300,000.00 against the
respondent".
The respondents mentioned in
that judgment are the appellants
herein. The Committee did not
fix any date for delivery of the
reasons. The parties went home
that day 23rd September, 1996
expecting hearing notices for
the reasons. No notice was sent
to them. Then on Thursday, 10th
October, 1996, the Daily Graphic
carried a story announcing that
the judicial committee had
delivered its ruling in the
matter on 11th September, 1996.
According to the Graphic the
Judicial Committee had declared
that Michael Conduah, the
Petitioner, had satisfied all
conditions to succeed the late
Edinamanhene Nana Kofi Conduah
v. This publication was
certainly false and mischievous
because if the Judicial
Committee announced its decision
on 23rd September, 1996, and
adjourned for reasons to be
given, it could not then be true
that the Committee delivered a
ruling on 11th September, 1996.
But the publication made an
impact. The appellants were
worried and caused their lawyer
to write to the Registrar of the
Regional House to draw his
attention to what appeared in
the newspaper and also to invite
his comments.
The appellants waited for a
while but the registrar did not
react. So on 8th November, 1996
the appellants commenced
proceedings before the Cape
Coast High Court seeking an
order of certiorari to quash the
judgment of the Judicial
Committee dated 23rd September,
1996, which I have quoted above.
The appellants grounded the
application on "Error of Law",
"Breach of Natural Justice" and
"Abuse of Jurisdiction". I am
not sure what the abuse of
jurisdiction was intended to
mean. At any rate that is not an
issue before us.
In the High Court and the Court
of Appeal the appellants,
through their counsel,
vigorously argued that it was
wrong for the Judicial Committee
to announce their decision on
23rd September, 1996, and
reserve their reasons for
another date. According to
counsel, Rule 11 of C.I. 27, if
properly construed, requires the
Judicial Committee to state the
decision with the reasons
simultaneously. He argues that
the failure by the Judicial
Committee to state their reasons
in the judgment of 23rd
September, 1996, therefore,
amounted to an error of law on
the face of the judgment, and
the judgment should be quashed
as being null and void.
Both the High Court and the
Court of Appeal rejected the
appellants' interpretation of
the rule and dismissed their
application. In the Court of
Appeal, the court suo motu
raised the point that though the
Judicial Committee was not bound
to announce the decision
together with the reasons
simultaneously, the Committee
was nevertheless under
obligation to give its reasons
within a reasonable period; the
Court of Appeal found that the
Judicial Committee was bound to
follow the procedure applicable
in the High Court, but having
reached that conclusion, the
court failed to apply the
relevant law applicable.
The appeal now before us is
against the decision of the
Court of Appeal. Only two
grounds of appeal have been
filed and labelled (a) and (b).
Ground (a) which is the general
ground that the judgment is
against the weight of evidence
has not been argued and I
conclude that it has been
abandoned. I shall therefore
restrict myself to the ground
(b); but counsel for the
appellants' has invited the
court to consider the grounds of
appeal filed before the Court of
Appeal.
This is what he said:—
"Since the appeal to the Supreme
Court is in the nature of a
rehearing, we urge the Supreme
Court to have regard to the
grounds of appeal which were
argued in the Court of Appeal
together with the statement of
the case filed by the parties
hereto".
I find it difficult to accept
that invitation. The rules of
the Supreme Court (and all other
courts) are there to be
observed. They form an important
component in the machinery of
the administration of justice,
and the courts must not, as a
general rule, take lightly any
non-compliance with them, even
though technicalities are not to
be permitted to undermine the
need to do justice.
The Supreme Court Rules, C.I.16,
set out the appeal procedure.
Rule 6 deals with notices of
appeal in a case of this kind.
It provides:—
"6(2) A notice of civil appeal
shall set forth the grounds of
appeal and shall state ... ..
(b) whether the whole or part
of the decision of the court
below is complained of and in
the latter case the part
complained of;
6(4) The grounds of appeal shall
set out concisely and under
distinct heads the grounds upon
which the appellant intends to
rely at the hearing of the
appeal, without any argument or
narrative and shall be numbered
seriatim; and where a ground of
appeal is one of law the
appellant shall indicate the
stage of the proceedings at
which it was first raised.
6(5) No ground of appeal which
is vague or general in terms or
discloses no reasonable ground
of appeal shall be permitted,
except the general ground that
the judgment is against the
weight of evidence; ....
6(6) The appellant shall not,
without the leave of the court,
argue or be heard in support of
any ground of appeal that is not
mentioned in the notice of
appeal".
These rules do not permit an
appellant to argue a ground of
appeal that is not set forth in
his notice of appeal. Of course
there is rule 6(7)(b) which
enjoins the court not to
"confine itself to the grounds
set forth by the appellant or be
precluded from resting its
decision on a ground not set
forth by the appellant; but that
rule is subject to rule 6(8)
which provides that
"Where the court intends to rest
its decision on a ground not set
forth by the appellant in his
notice of appeal or on any
matter not argued before it, the
court shall afford the parties
reasonable opportunity to be
heard on the ground or matter
without re-opening the whole
appeal".
I understand rule 6(8) to mean
no more than that the decision
to rely on a ground not set
forth by the appellant rests
solely with the court when in
any particular appeal before it,
the justice of the case requires
the court to rest its decision
on a ground not relied on by the
appellant in his notice of
appeal. The rule should not be
taken as granting an appellant a
general license to abandon his
obligations under the rules. The
ostensible object of Rule 6 is
to identify and narrow down the
issues raised by the appeal so
as to expedite the hearing. If
the rules are observed properly,
the court and the lawyers will
be relieved of the burden and
tedium of searching through
voluminous records of
proceedings because the grounds
of appeal will help direct their
attention to the only salient
points of fact and law involved
in the appeal, and allow for
time to deal with them with
efficacy.
I now take the ground (b) argued
before us. It is heavily laden,
and a close look reveals that it
actually involves two separate
arguments which ought to have
been set out under two separate
heads as required by Rule 6(4).
The said ground (b) reads as
follows:
"The learned Court of Appeal
erred in law by misconstruing
the clear mandatory statutory
procedural provision enacted in
section 11 of C.I. 27 1972
(which demands that the judgment
of the trial court should be
announced together with reasons)
hence the failure to do so
within a reasonable time
resulted in a substantial
miscarriage of justice and
therefore rendered the judgment
of 23rd September, 1996, a
nullity.
I have decided to break down
this ground into the two grounds
which it certainly purports to
set forth. I think they are
these:
"(i) that the Court of Appeal
erred in misconstruing Rule 11
of C.I. 27 which requires that
the judgment of the trial court
should be announced together
with the reasons.
(ii) That the Court of Appeal
erred in not finding that
failure by the Judicial
Committee to announce its
reasons within a reasonable time
resulted in a substantial
miscarriage of justice and
therefore rendered the judgment
of 23rd September, 1996 a
nullity."
This break down is necessary to
identify the issues in
controversy and make the
decision of the court
intelligible. I am convinced
that this approach does not do
injustice to the parties before
us.
Let me take first the
appellants' contention that the
Judicial Committee was obliged
by rule 11 of C .I. 27 to state
its reasons in the judgment of
23 September, 1996. The said
rule 11 provides that:
"The Judicial Committee shall at
the conclusion of the hearing of
the petition deliver its
judgment, giving its reasons
therefor".
Counsel for the appellants has
steadfastly argued that by this
rule, it was wrong for the
Judicial Committee to announce
its judgment and reserve reasons
for the judgment to be stated
later. According to him the
rule requires the Judicial
Committee to incorporate the
reasons in the judgment before
announcing it, because the
giving of the reason is a
condition precedent to the
announcement of the decision. I
do not agree. I agree rather
with the learned judges of the
High Court and the Court of
Appeal that such a construction
cannot be placed on rule 11. It
appears to me that the starting
point in the construction of a
statutory provision is recourse
to the first principle that when
the words of an Act of
Parliament are plain and
unambiguous they must prevail;
effect must be given to them
unless they lead to either
injustice or absurdity.
Punctuations can be of some
assistance in construing an
Act. They need not be
disregarded if they conveniently
provide a guide in the search
for the intention of Parliament.
Indeed our Interpretation Act
C.A 4 of 1960 Provides in
section 3 that "Punctuation
forms part of an enactment and
may be used as an aid to its
construction".
The contention of the
appellants' counsel is that rule
11 should be read without any
regard for the comma separating
the words "deliver its judgment"
from the words "giving reasons
therefor". He calls the comma
"a false comma" and argues that
the provision, grammatically,
"consists of a dominant sentence
and a phrase which is
subordinate to the main
sentence", and so make "the
giving of the reason" a
"condition precedent to the
announcement of the decision".
I must observe that this is a
very lofty semantic analysis
more appropriate for a doctoral
thesis than for the
consideration of Parliament or
even the draftsman. Neither
Parliament nor the draftsman
certainly could be assumed to
have employed the comma as a
factor in expressing the
intention of parliament besides
the words used, and to my mind
the presence or absence of the
comma does not, within the
context of the provisions, give
any different meaning to the
sentence. It may further be
observed that punctuations do
not normally form part of the
bill passing through Parliament
and cannot be debated, and are
not usually debated, as the bill
passes its various stages in
Parliament. Assuming even that a
punctuation mark should attract
the attention of Parliament and
be the subject of deliberation,
do not believe that the
discussions in Parliament could
have reached such a high level
of academic discourse as is
implicit in counsel's argument.
In my opinion the comma is not a
useful aid in determining the
intention of parliament in this
provision. Parliament could
have expressly stated it, if
that was the intention, that the
reasons must be embodied in the
decision before it is
announced. I am convinced that
the Court of Appeal was right in
construing the provision in Rule
11 as meaning simply that the
Judicial Committee shall give
judgment after it has concluded
the hearing, and shall state
reasons for its judgment. No
specific time for stating the
reasons can be imported into the
provision.
In reaching this conclusion, I
am guided by the practice which
has long been followed in our
courts including even the
Supreme Court. I concede that
reasons are essential to give
juridical efficacy to the
judgments of the courts
especially in contested cases,
but I have not yet come across
any authority which lays it down
as a general rule that it is
wrong for a court to announce
its decision and reserve reasons
to be given later. It is not a
practice peculiar to our
courts. I dare say that it is
universal.
And if counsel for the
appellants had spent a little
time to study the court notes in
the case of Reg. V. Governor of
Brixton Prisons, Ex parte,
Armah (1966) 3 WLR 829, on
which he heavily relies in
support of his arguments for the
need for a reasoned judgment, he
would have discovered that the
decision in that case was very
much in the form that the
Judicial Committee took in the
instant case. The decision was
announced on a particular date
but the reasons given later on
another date. The court notes at
page 832 read as follows:—
"LORD REID stated that their
Lordships would announce their
decision on July 26, 1966.
July 26, 1966. Their Lordships,
for reasons to be given later,
allowed the appeal".
And the full judgment with
reasons was read on August 12,
1966, by Lord Reid, Lord Morris
of Borth-Y-Gest, Lord Pearce,
Lord Upjohn, and Lord Pearson.
I hold therefore that the
appellants' ground of appeal
which states that the Court of
Appeal misconstrued rule 11 of
C.I. 27 must fail. I dismiss
it.
I take the second ground I have
outlined above. The complaint
in that ground is that the Court
of Appeal erred in not finding
that the failure of the Judicial
Committee to announce its
reasons within a reasonable time
resulted in a miscarriage of
justice and therefore rendered
the judgment of 23rd September,
1996, a nullity.
There is a good deal of merit in
this ground. I understand the
rule of practice to be this:
Where a judgment is announced
and the reasons reserved, then
the reasons, in the absence of
an express stipulation as to a
time limit, must be given within
a reasonable time so as not to
occasion a delay in the
administration of justice; and
where statute expressly requires
that judgment must be given
within a specified period of
time, that requirement must be
complied with. The case of
Edwick v. Sunbury-on-Thames
Urban District Council. and
Anor. (1962) 1 OB 229 may be
cited for this proposition.The
plaintiff in that case applied
to the local planning authority
for permission to use a piece of
land for a specified purpose.
According to the town planning
regulations under which the
plaintiff made the application,
if the planning authority
decided not to grant the
permission, it must serve a
notice of refusal on the
plaintiff within two or three
months. But in this case the
planning authority delayed for
two years before writing to
inform the plaintiff that his
application had been refused.
The plaintiff therefore sued
the planning authority seeking a
declaration that the notice of
refusal was void because it was
not served within the period of
time required by the town
planning regulations. The
plaintiffs claim was upheld.
The court emphasized that it was
mandatory to give the notice in
good time as stipulated in the
regulations.
In the instant appeal before us
the Court of Appeal ,rightly in
my view, decided that the
Judicial Committee was bound in
law to follow the procedure
obtaining in the High Court. It
relied on Rule 28 of C. 27. That
rule provides:
"Where no provision is expressly
made by these Rules or by any
enactment regarding the practice
and procedure to be followed in
any cause or matter before a
Judicial Committee, that
committee shall follow such
practice and procedure as in the
opinion of the Judicial
Committee the justice of the
cause or matter may require,
regard being had to the
principles of customary law, and
the practice and procedure of
the High Court of Justice".
What then is the practice and
procedure of the High Court with
regard to the delivery of
judgments? We find it in order
63 Rule 2A of the High Court
(Civil Procedure) Rules, 1954,
(LN 140A) as amended by the High
Court (Civil
Procedure)(Amendment) Rules,
1977, LN. 1107 which provides
time limit for delivery of
judgments by the High Court as
follows:—
2A(1) At the close of a case
before it the court shall fix a
date, which shall not be later
than six weeks after the close
of that case, for the delivery
of judgment therein.
(2) It shall be the duty of
the court to deliver judgment as
soon as possible after the close
of each case before it, and in
any event not later than six
weeks after the close of any
such case.
(3) For the purposes of this
rule a case shall be deemed to
be closed when the evidence has
been given to the court and the
speeches subsequent thereto have
been concluded.
These rules are very clear. The
High Court must deliver judgment
in a case before it within six
weeks after the evidence has
closed and submissions are
made. The computation of the
six weeks starts from the day
submissions are concluded. Since
the Judicial Committee must
follow this practice, it follows
that the committee must deliver
judgment within six weeks after
the close of the case before it.
That is the law. It is important
to note that in the appeal
before us the Judicial Committee
did indeed give reasons for the
judgment announced on 23rd
September, 1996.
The reasons were delivered on
3rd December, 1996. In my
opinion if the reasons given on
the 3rd December, 1996, could be
incorporated in the decision
announced on 23rd September,
1996, those reasons would
lawfully complement the decision
of 23rd September, 1996, and
transform it into a reasoned
judgment. But can such an
incorporation be made? The
affidavit of the appellants
sworn to by Supi Mark Aaba on
8th November, 1996 in support of
the application states in
paragraphs 6, 7, 8 and 9 as
follows: —
6. After the close of the
evidence and after the filing of
addresses the case was adjourned
Cura Advisari (CAV) to enable
the panel members to consider
the matter and announce judgment
on that day to 23rd September,
1996 for judgment.
7. That after an interval of
two weeks we were present for
the delivery of the judgment and
the reasons therefor.
8. On that day the Judicial
Committee members and the
counsel recorder and the
Registrar before the delivery of
the judgment went and spent
hours with the President of the
Central Regional House of Chiefs
in his room.
9. I am therefore not surprised
when the judgment was delivered.
I am advised by our counsel that
that judgment could hardly be
described as a judgment which
took over two weeks to consider.
The Chairman of the Judicial
Committee, Otumfuo Amoa Sasraku
lll (Omanhene of Twifu Hemang
Traditional Area) and the
interested party filed
affidavits in reply to that
affidavit of 8th November, 1996
but did not deny that the case
closed at least two weeks before
the 23rd September, 1996. I,
therefore, take it as correct
and true that the hearing before
the Judicial Committee closed at
least two weeks before the 23rd
of September, 1996. Accordingly
the six weeks within which the
Judicial Committee was obliged
to deliver its judgment must be
reckoned from two weeks prior to
23rd September, 1996. That date
will be 9th September, 1996. Six
weeks from 9th September, 1996
will take us forward to 21st
October, 1996. The Committee
defaulted in doing so. It
delayed until 3rd December,
1996. Before then the
appellants had commenced
proceedings to quash the
decision of 23rd September,
1996. It took the Committee's
twelve weeks instead of the 6
weeks required by the law.
In my view the reasons given on
3rd December, 1996, have no
validity in law. It appears to
me that after the six weeks
stipulated by the law, the
Judicial Committee's
jurisdiction over the case
lapsed and it had no power to
proceed to give its reasons
which should, in law, form an
integral part of the judgment.
Under the High Court Rules
limiting the time for delivery
of judgments it is abundantly
clear that the High Court cannot
give a judgment outside the six
weeks unless the Chief Justice
grants the power to do so. This
conclusion derives from the
provisions of Order 63, Rules
2A(5) (6) and (7) as amended by
L.I. 1107 which provide
follows:-
Rules 2A(5) Where for any
reason judgment has not been
delivered within the period of
six weeks referred to in this
rule, the court shall forthwith
inform the Chief Justice in
writing of that fact and shall
state the reasons for the delay
in so delivering judgment and
the date upon which it is
proposed to deliver.
(6) Where judgment has not been
delivered within six weeks
referred to in this rule, any
party to the proceedings may in
writing notify the Chief Justice
of that fact and request that a
date be fixed for the delivery
of judgment.
(7) Upon receiving a
notification from the court or a
party under paragraph (5) or (6)
the Chief Justice may fix a date
for the delivery of judgment by
the court and notify the court
accordingly, and it shall be the
duty of such court to ensure
that judgment is delivered upon
the date so fixed by the Chief
Justice.
The clear intendment of these
rules is that the court cannot
proceed with judgment be given
on or by a date fixed by him.
After the six weeks without the
Chief Justice is not compelled
to direct that the judgment be
written. He "may fix a date for
the delivery of judgment". That
is purely discretionary. He may
decline to direct that judgment
be delivered. If he refuses,
that will be the end of the
matter. The provisions are not
in any way different from the
usual statutory limitation
provisions which operate as a
bar unless the time is extended.
Accordingly, by the rules the
jurisdiction of the High Court,
and in this case, the
jurisdiction of the Judicial
Committee over a case ceases six
weeks after the close of the
case, and it has no power to
give a judgment after the six
weeks unless the Chief Justice
grants an enlargement of time.
I therefore say that the reasons
given by the Judicial Committee
on 23rd December, 1996, are
invalid and do not form part of
the judgment of 23rd September,
1996. See the recent decision of
this court in Boye-Doe v.Teye &
Anor. (2000) SCG LR 255 where a
judgment of the High Court given
after six months after the
judge's retirement was set aside
as a nullity.
The Court of Appeal seriously
overlooked this point. They
properly considered Rule 28 of
C.I. 27 and concluded as
follows:-
"By this provision even though
no time limit is imposed the
Judicial Committee may be
enjoined to follow the practice
and procedure prevailing in the
High Court whereby six weeks is
imposed by law as the period
within which judgment shall be
delivered. And my understanding
of these statutory limits is
that both the judgment and the
reason for it should be
delivered within six weeks after
the close of the case".
Their mistake was that having
come to such a conclusion, they
failed to place the case before
them within the parametres of
that legal limitation. If they
had pondered a little over the
facts, it would have occurred to
them that the reasons for the
judgment were delivered long
after six weeks.
When the reasons delivered on
3rd December, 1996 are excluded
the decision of 23rd September,
1996, remains without reasons.
The appellants say it is null
and void and must be quashed.
The Court of Appeal did not
agree. This is what the court
said:
"The second ground raised was
that the Committee ought to have
made express finding of fact,
and the resolution of disputed
facts on all material facts with
reasons. This ground was rooted
in Rule 11 of C.I. 27. I would
have thought that if a tribunal
of fact fails to make proper
finding on ground it gives room
for appeal on ground that the
judgment is against the weight
of evidence, or that the judge
erred in his conclusion because
he did not adequately consider
the party's case etc, etc. if
the court has jurisdiction to
hear a matter but its judgment
is considered unsupportable it
is a matter for appeal and not
the subject of a prerogative
order, unless the decision
amounts to a nullity for reasons
apparent on the face of the
record".
That opinion, to the extent that
it admits the options of appeal
and certiorari, would appear to
be correct. It all depends on
the nature of the particular
judgment. Our Constitution
defines "judgment" as including
"a decision, an order or decree
of the court". The courts Act,
1993, Act 459, in section 117
defines it as including "a
decree, or order, decision or
any other finding whatsoever".
The two definitions, on their
face, do not appear to suggest
that a judgment must necessarily
include the reasons on which the
court relied to reach its
decision. Thus, for example, if
an accused pleads guilty to a
criminal charge and the court
proceeds to convict him by
saying "I find the accused
guilty and convict him", that is
a judgment. But where a case is
contested, the judgment must
take account of the relevant
matters in controversy and the
facts upon which the judgment is
founded. Such a judgment is
what we call a reasoned
judgment. I may state it as a
general rule that the
administration of justice
requires that a court gives
reasons for its judgment, and
that reasons are mandatory in
all cases in which statute
expressly requires a court or
adjudicator to furnish reasons
for its decision. The statement
of reasons is the only
meaningful factor which may give
the parties that sublime
satisfaction that justice has
been done in the matter. And
there are several authorities
which establish it as law that
where reasons are required,
failure to furnish them would
render the judgment null and
void.
In R v. Sarpong (1959) GLR 383,
the accused was tried for
burglary and theft. He was
tried by a commissioner sitting
with assessors. At the close of
the hearing and after the
assessors had stated their
opinions, the Commissioner
proceeded to convict the accused
as follows:- "The accused is
convicted on all three counts as
laid in the information". The
procedure under the then
Criminal Procedure Code Cap 10
section 300(2), was that after
the assessors had stated their
opinion "the judge shall then
give judgment and in so doing
shall not be bound to conform
with the opinion of the
assessors, but he shall record
his judgment in writing and in
every case such judgment shall
contain the point or points for
determination, the decision
thereon and shall be dated and
signed by the judge at the time
of pronouncing it". The accused
appealed to the Court of Appeal
and the court held as follows:
1. That a judge's omission, in
any trial with Assessors, to
write a judgment as required by
section 300(2) of the Criminal
Procedure Code, vitiates a
conviction.
The conviction was quashed and
Granville Sharp, J.A. delivering
the judgment of the court
observed as follows at page 386.
"[That] reasons are necessary
even in the case of a magistrate
trying a case summarily, unless
it is clearly obvious that guilt
must be inferred from the facts
and circumstances of the case.
If the reason is not obvious to
an appellate court, then the
magistrate must be held to have
erred in not stating it, because
the Criminal Procedure Code
requires a magistrate to state
reasons for his decision where
necessary".
See also the cases of R v. Adade
Rep. (1959) GLR 365; and Zip
Zabrama @ Walla v. Rep. (1967)
GLR 785. For the purpose of a
writ of certiorari, failure to
furnish reasons as required by
statute has been held to be an
error on the face of the record.
Vide In Re Poyser and Mills
Arbitration (1963) 2 WLR 1309,
in which an arbitrator was
appointed to determine questions
arising out of the reasons
stated in a landlord's notice to
a tenant to quit. The arbitrator
was required by the regulations
to furnish reasons, written or
oral, for his decision. He
failed to furnish his reasons in
his decision. It was held that
his failure to furnish reasons
was an error apparent on the
face of the record, and
certiorari was issued to quash
it. See also Givaudan & Co.
Ltd. v. Minister of Housing and
Local Govt & Anor. (1967) 1 WLR
250;
So the Court of Appeal was right
in saying that where a tribunal
of fact fails to make proper
findings of fact it is a matter
of appeal and not the subject of
a prerogative order unless the
decision amounts to a nullity.
The explanation is that a party
adversely affected by such a
judgment may seek two
alternative remedies. He may
appeal, or if he thinks that the
decision amounts to a nullity he
may seek an order of certiorari
to quash it. In the instant case
the appellants resorted to the
prerogative writ of certiorari.
It is for them to satisfy the
legal requirements for the issue
of an order of certiorari. This
they have sought to do by saying
that the omission of reasons for
the judgment of 23rd September,
1996, is an error on the face of
the judgment. No error appears
on the face of that judgment as
it stands. But statute
intervenes and the law requires
the Judicial Committee to
furnish reasons for its
decision. Now there are no
reasons because the reasons
given on 3rd December, 1996,
cannot be incorporated into the
decision. The judgment
therefore does not satisfy the
statutory requirements of C.I.
27. That is an error of law on
the face of the judgment. The
Court of Appeal, as rightly
contended by the appellants,
erred in not granting the
appellants' application for
certiorari. I will allow the
appeal, set aside the judgment
of the Court of Appeal and order
that the judgment of the
Judicial Committee of the
Central Region House of Chiefs
dated 23rd September, 1996 be
quashed.
KPEGAH, J.S.C.:
The result of this appeal rests
on two legal points; first on
the interpretation of Rule 11 of
the Chieftaincy (National and
Regional Houses of Chiefs)
Procedure Rules, 1972 (C.I.27)
(hereinafter referred to as Rule
11 of C.I.27); and second on the
interpretation and applicability
of Order 63 Rule 2A of the High
Court (Civil Procedure) Rules,
1954, (LN 140A) as amended by
the High Court (Civil Procedure)
(Amendment) rules, 1977, (L.I.
1107) (hereinafter referred to
as Rule 2A of L.I. 1107) to
proceedings before the Judicial
Committee of a Regional House of
Chiefs, and for that matter the
instant case before us.
As a matter of fact, the
arguments include other issues
which were argued before both
the High Court and the Court of
Appeal; but the construction to
be put on Rule 11 of C.I. 27 and
on Rule 2A of L.I. 1107 and the
applicability of the later rule
to the instant case has become,
in my view, the dominant legal
issues before us. And if the
applicability of Rule 2A of L.I.
1107 to this case is accepted
then any attempt on my part to
forge into issues of fact and
law, as urged in the High Court
and the Court of Appeal, will be
a dissipation of valuable time
and may amount to nothing more
than needless academic exercise.
It is therefore not my intention
to indulge in a detailed
analysis of the facts,
especially when they have been
adequately and lucidly set out
in the judgment of my learned
brother Adzoe, J.S.C.
However, before tackling the
main legal points involved in
this appeal, it will be
worthwhile, if not only for
completeness but also for a
better appreciation of this
opinion, to set out a brief
chronicle of events which had
brought about the need for the
interpretation of Rule 11 of
C.I. 27 and Rule 2A of L.I.
1107,and the issue of the
possible applicability of the
latter to proceedings before a
Judicial Committee of a Regional
House of Chiefs.
The instant appeal originates
from an application for an order
of certiorari to quash the
judgment of the Judicial
Committee of the Central Region
House of Chiefs dated 23rd
September, 1996 which was
delivered in a petition filed by
one Michael Conduah before the
said Committee. The petition
was against the installation of
one Joseph Cobbina Anwowin as
the Omanhene of the Edina
Traditional Area. Proceedings
before the Judicial Committee
closed, with the filing of
addresses by both Counsel, on
9th of September, 1996 and the
case was subsequently adjourned
to 23rd September, 1996 for
judgment. On the said date, the
Judicial Committee gave the
judgment but reserved its
reasons in these words:
"After listening to the parties,
their Counsel and after reading
the evidence adduced, we hold
the opinion that the petitioners
claim should be upheld Reasons
will be given later. Costs
assessed at ¢300,000.00 is
awarded against the
respondents".
However, before the reasons
could be given, the respondents
in the original petition (now
appellants) filed an application
for the prerogative order of
certiorari to quash the decision
of the Judicial Committee quoted
above. The ground for the
application was that the
Judicial Committee erred when it
failed to give its reasons for
the judgment simultaneously in
contravention of Rule 11 of C.I.
27 which provides:
"The Judicial Committee shall at
the conclusion of the hearing of
the petition deliver its
judgment, giving reasons
thereof."
Meanwhile, during the pendency
of the application for the order
of certiorari, which was
eventually disposed of on 22nd
September, 1997,the Judicial
Committee gave its reasons on
the 3rd of December, 1996. That
is to say, twelve weeks after
hearing of the petition ended on
the 9th day of September, 1996.
The application, as earlier
indicated, was premised on the
alleged breach of Rule 11 of
C.I.27 by the Judicial Committee
of the Central Region House of
Chiefs which, so was urged in
support, failed to incorporate
its reasons in the judgment of
23d September, 1996. It was
argued by learned Counsel for
the appellants that the word
"shall" as used in the said Rule
11 of C.I. 27 imposed a
mandatory duty on a Judicial
Committee of a Regional House of
Chiefs not only to give a
judgment at the conclusion of
the case before it, but also, to
do so together with its reasons
at the same time. This argument
was rejected by the High Court
which held that reasons for the
judgment could perfectly be
given later.
This is what the learned judge
said:
"The legislature simply provided
for the "giving of reasons
therefor". Without sounding
disrespectful, let me simply say
the expression cannot mean more
than giving reasons for it. In
my view, it is an unmitigated
abuse of language to construe it
as giving reasons 'forthwith, or
simultaneously' or
instantaneously. To accept it
will be throwing reason
unpardonably to the wind. I
entirely reject it."
The appellants, dissatisfied
with the decision of the High
Court appealed to the Court of
Appeal where their Counsel
re-agitated the same views on
his understanding of the
provisions of Rule 11 of C.I.
27. The Court of Appeal, in a
unanimous decision, also ruled
against the appellants. The
Court speaking per Benin, J.A.
said:
"The duty to give judgment and
to give reasons for it is
clearly imperative having regard
to the word "shall" used. But
the initial point is whether it
is to be read simultaneously
with the judgment. Could it be
said that the lawmaker intended
that a decision given by a
Judicial Committee without the
reasons being given
simultaneously be void? I do not
think so, for if that had been
the legislative intendment
express words to that effect
would have been used."
Benin, J.A. then observed that
Rule 11 of C.I. 27 does not
impose any time limit within
which the Committee is to
deliver its judgment after
concluding the hearing of a
case. He proceeded to express
the opinion, and rightly too in
my view, but subject to one
qualification which I will state
shortly, that where an enactment
does not appoint a time for
doing an act, it shall not be
right to import time into it.
The qualification I have is that
the Courts do hold, in such a
situation where no time is
stipulated, that the duty be
performed "within a reasonable
time". This, of course, depends
on the circumstances of each
case. Benin, J.A.'s statement
was in answer to a submission of
learned Counsel that if the rule
was not interpreted to mean
reasons for the judgment also be
given forthwith, "it could mean
that the Judicial Committee
could announce their decisions
and delay for as long as they
liked, and after five or it may
be ten months suddenly publish
their reasons".
The learned judge expressed
judicial sympathy for this
argument which he finds "quite
realistic" and held that
"fortunately the lawmaker did
not leave this large vacuum
unfilled". This is because the
Court of Appeal was of the view
that Rule 28 of C. 27 could be
invoked to set the time limit.
The said rule provides: "Where
no provision is expressly made
by these Rules or by any
enactment regarding the practice
and procedure to be followed in
any cause or matter before a
Judicial Committee, that
Committee shall follow such
practice and procedure as in the
opinion of the Judicial
Committee the justice of the
cause or matter may require,
regard being had to the
principle of customary law, and
the practice and procedure of
the High Court of Justice."
The words "as in the opinion of
the Judicial Committee the
justice of the cause or matter
may require" does not, in my
view, mean that every
consideration is left to the
subjective views of the Judicial
Committee. The test or the
consideration, in my view, has
to be an objective one: what a
reasonable tribunal exercising a
discretionary judicial power
would do in such a situation in
order to do justice in the
matter. Of course, regard must
always be had to the dictates of
customary law and the practice
and procedure in the High Court
of Justice in such a situation.
Having derived inspiration from
Rule 28 of C. 27 to draw
attention to and invoke Rule 2A
of L.I. 1107 which regulates the
time for the delivery of
judgment in the High Court to
six weeks, the Court of Appeal,
again speaking per Benin, J.A.
said:
"By this provision though no
time limit is imposed, the
Judicial Committee may be
enjoined to follow the practice
and procedure prevailing in the
High Court whereby six weeks is
imposed by law as the period
within which judgment shall be
delivered. And my understanding
of these statutory time limits
is that both the judgment and
the reason for it should be
delivered within six weeks after
the close of case.
In conclusion I hold that by
Rule 11 of C.I. 27 a Judicial
Committee of a Regional House of
Chiefs is not enjoined to give
reasons for a judgment
simultaneously with it, reasons
may be given subsequently to the
judgment."
The appeal was, accordingly,
dismissed by the Court of
Appeal. Certain important
deductions can properly be made
from this dictum which can be
described as the RATIO DECIDENDI
of the case. I must say that I
perfectly agree with both the
High Court and the Court of
Appeal's interpretation of, Rule
11 of C.I. 27 which was
specifically involved in the
High Court, and Rule 2A of
L.I.1107 which was considered
alongside Rule 11 of C.I.27 by
the Court of Appeal.
The deductions which can
legitimately be drawn from the
dictum above are;although Rule
11 of C. I. 27,properly
interpreted, only requires a
Judicial Committee of a Regional
House of Chiefs to deliver
judgment after hearing a
petition, it does not require
the delivery of a reasoned
judgment immediately. Judgment
can be announced and the reasons
reserved to be given later.
However, by the operation of
Rule 28 of C.I. 27, Rule 2A of
L.I. 1107 which limits the time
for the delivery of judgment at
the High Court of Justice to six
weeks can be invoked to apply to
a Judicial Committee of a
Regional House of Chiefs which,
though not bound to give reasons
immediately for its judgment,
must do so within six weeks from
close of case; ipso facto, the
Judicial Committee of the
Central Region House of Chiefs
in the instant case was required
to give reasons for its decision
of 23rd September, 1996 within
six weeks from the 9th day of
September, 1996 when the hearing
of the case was concluded. This
would have meant giving the
reasons on or before the 21st of
October, 1996. So that for the
said Judicial Committee to give
its reasons on 3rd day of
December, 1996 for a case which
was concluded on 9th September,
1996 was well outside the six
weeks period.
But unfortunately, however, the
Court of Appeal stopped short of
considering the effect of
non-compliance with this
statutory requirement on the
proceedings before the Judicial
Committee of the Central Region
House of Chiefs. Because in
procedural law when a time is
fixed for the performance of an
act or the taking of a step in
the course of proceedings,
unless there is power for
extension of time for the act to
be done or the step to be taken
and the time has indeed been
extended, anything done or any
step taken in the proceedings
outside the fixed period is null
and void. Indeed the failure of
the Court of Appeal to give
consideration to the possible
effect of the non-compliance by
the Judicial Committee of the
Central Region House of Chiefs
with Rule 2A of L.I. 1107
coupled with the dismissal of
the appeal of the appellants
could be tantamount to upholding
a void judgment delivered by the
said Judicial Committee. Rule 2A
of L.I. 1107, as stated,
provides a specific time for the
delivery of judgment and fixes
the cut-off point at six weeks
after close of case. Before
then, it had often been assumed
that the delivery of judgment
after close of case must be
within a reasonable time. This
is because delivery of judgment
is regarded as the last act of
the judge to finally bring the
process of adjudication to a
solemn end. The possibility that
the judgment of the Judicial
Committee could be in
contravention of Rule 2A of L.I.
1107, and therefore possibly a
nullity, was raised by the Court
of Appeal itself. The point is
not only one which should be of
some legal interest or
significance and therefore only
worth mentioning casually, but
also it is a point of law which
goes to the fundamental issues
of jurisdiction and, therefore,
competence of the Chieftaincy
Tribunal which heard the
original petition. This
certainly, demands judicial
attention. The Court of Appeal,
in my humble view, should have
expressed the view it held in
respect of the resultant
judgment - was it a nullity or
not?
And in expressing this view it
cannot do so without first
indicating whether it construes
the provisions of Rule 2A of
L.I. 1107 to be mandatory or
directory only. This serious
lapse on the part of the Court
of Appeal, however, only
attracted a coy reaction from
Dr. Ekow Daniels, learned
Counsel for the appellants, who
in his brief to this Court said:
"The decision of the Court of
Appeal proceeded on the footing
that if there is no time limit
for the giving of reasons, it
will be reasonable to do so
within six weeks after the
judgment; as laid down by the
High Court Rules. However, it
escaped the Court to comment on
the fact that the reasons were
given 10 weeks after judgment."
(Emphasis mine).
The only argument Mr. Ebow
Dawson, learned Counsel for the
interested parties (the
respondents in this appeal) can
be said to have made in this
connection in his brief of
argument is as follows:
"It is submitted that the only
duty imposed on the Regional
House of Chiefs was to give a
decision after hearing a
petition and give reasons for
the decision and this they
discharged.
I am submitting therefore that
the Judicial Committee of the
Central Regional House of Chiefs
giving their decision on 23/9/97
(sic) was well within the law
and it is not unexceptional.
Between 23rd September, 1997
(sic), and 3rd December, 1997
(sic) a period of a little more
than 2 months is not what can
make the act of the House not be
in accordance with the
provisions of the law and
therefore the judgment void as
is being contended."
It does appear therefore, does
it not, that Mr. Ebow Dawson
completely avoided the issue of
non-compliance with Rule 2A of
L.I.1107 which is central to
this appeal.
My Lords, the two most important
questions in the appeal before
us are: (a) is it proper to
invoke Rule 28 of C.I. 27 to
enable us apply Rule 2A of L.I.
1107 to proceedings before a
Chieftaincy Tribunal; and (b)
the legal effect of
non-compliance with the said
Rule 2A of L.I. 1107, if held to
be applicable, to a judgment
given outside the statutory
period of six weeks. The answer
or solution to the latter
question will involve the
determination whether Rule 2A of
L.I.1107 is to be construed as a
mandatory legislation with its
attendant implications for
non-compliance, or as directory
legislation only.
The provision of Rule 2A of
L.I.1107 which is under
consideration is procedural in
nature and belongs to the area
of law known as adjectival law
rather than the area often
referred to as substantive law.
Procedural requirements often
pose the question of the
consequence of non-compliance,
or partial or substantial
compliance. Under the
sub-heading "Procedural
Requirements" the learned
authors of Halsbury's Law of
England (4th Ed.) paragraph 25
of Vol. 1, had this to say:
"The question whether
non-compliance with procedural
or formal requirements renders
nugatory the purported exercise
of a statutory power has been in
issue in a large number of
reported cases, from which but
few principles can be elicited.
The normal consequence of
non-compliance with the
requirement is invalidity. These
requirements are, however,
classifiable as mandatory or
directory, and, where a
provision is merely directory,
substantial compliance will be
sufficient, and in some cases
total non-compliance will not
affect the validity of the
action taken. It is broadly true
that such provisions will more
readily be held to be directory
if they relate to the
performance of a statutory duty,
especially if serious public
inconvenience would result from
holding them to be mandatory,
rather than to the exercise of a
statutory power affecting
individual interests, and that
the more severe the potential
impact of the exercise of the
power on individual interests,
the greater the likelihood of
the procedural or formal
provisions being held to be
mandatory."
Thus from the above a
distinction is made between
public interest and individual
interest: Where in the case of
the former an insistence on
complete compliance will
seriously compromise public
convenience, the provision is
often held as directory; but in
the case of the latter, that is
where individual interest is
involved, complete compliance is
often insisted on. To which
category shall we place the
provisions of Rule 2A of L.I.
1107 which we are considering in
these proceedings?
This is because the Rule does
not itself indicate what
non-compliance will entail for a
judgment delivered, after the
close of case, outside the
statutory period of six weeks.
A similar provision on time for
the delivery of judgment in the
Nigerian Constitution fell for
interpretation in the case of
IFEZUE VRS. MBADUGHA (1984)
N.S.C.C. 314. Section 258 (1) of
the Nigerian Constitution
provides:
"Every Court established under
this Constitution shall deliver
its decision in writing not
later than 3 months 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 on the date of the
delivery thereof."
It was held by the Supreme Court
that failure to give judgment as
required by the relevant
provision of the Constitution
(i.e. S.258 (1) violated the
said provision and the so-called
judgment delivered outside the
period was no judgment at all,
but null and void and of no
legal effect. The action which
led to the interpretation of S.
258(1) of the Constitution was
for declaration that the
purported sale of the Plaintiffs
property by the 2nd Defendant to
the lst Defendant was null and
void; an injunction restraining
the Defendants from interfering
with the Plaintiffs right over
the property. Judgment was given
to the Plaintiff and the 1st
Defendant appealed. The Court of
Appeal concluded the hearing of
Counsel's addresses on 23rd
March, 1981 and reserved
judgment which it eventually
delivered on 23rd November,
1981. The Plaintiff appealed to
the Supreme Court, contending
INTER ALIA, that the Court of
Appeal erred in law in giving
judgment beyond the three months
period allowed in S.258 (1) of
the Constitution. It also came
out that the Court of Appeal,
had, suo motu, re-opened the
case, outside the three months
period, for further argument.
Several issues came up for
determination, among which were:
(i) Whether the Court of
Appeal can suo motu assume
jurisdiction to ''re-open" an
appeal after the expiration of
the three months stipulated in
the Constitution for the
delivery of judgments.
(ii) What is the effect of a
judgment delivered outside the
period prescribed under S.258(1)
of the Constitution?
(iii) What is the correct
interpretation of Section 258(1)
of the Constitution, is it
mandatory or directory?
(iv) What are the legal
consequences of the breach of
the provision?
Chief F.R.A. Williams, S.A.N.
appeared with leave of the
Supreme Court as AMICUS CURIAE
and submitted a brief of
argument. Although Chief
Williarns supported the view of
Counsel for the Respondents,
Professor Kasunmu, that Section
258(1) of the Nigerian
Constitution which came up for
interpretation was not mandatory
but directory only, he, however,
in a brilliantly written opinion
discussed the subject from a
wide perspective and treated the
fundamentals also. The brief was
given a place of honour in the
judgment of Aniagolu, J.S.C. At
page 2, paragraph 1.2 of the
brief learned Counsel submitted:
"EFFECT OF CONTRAVENTION OF
STATUTES GENERALLY: The
provision of section 258(1) of
the Constitution which is to be
considered in this brief require
all courts established by the
Constitution to deliver their
judgments within a period of 3
months after the conclusion of
evidence and final addresses.
There can be no doubt that the
provisions of the section are
meant to be obeyed and complied
with. But there is no such thing
as an unbreakable law. A law may
be disobeyed or contravened for
good reason or for bad reason or
for no reason. The question
which the courts have to face
and determine include the
following: What are the legal
consequences of the breach or
contravention of the law. Does
the breach or contravention
render what was done by the
public authority or other person
null and void or does it leave
what was done as aforesaid
unimpaired or does it render it
voidable at the instance of a
person interested? Is the person
who contravened the law liable
to a penalty? And so on and so
forth. Lawyers have to consider
such questions because,
unfortunately, in our imperfect
world, breaking or
contraventions of laws occur
often enough and it would be
unrealistic to ignore them. The
authorities show that there are
situations in which the law says
that what was done by a public
authority in breach of a statute
was null and void. There are yet
other situations in which the
law says that what was done by a
public authority in breach of a
statute leaves the act performed
unimpaired. In the latter case
it is a misconception to suppose
that the application of the rule
which leaves the act of the
public authority unimpaired
tends to render the law useless
and ineffective. It will be seen
that in cases where the courts
have reached this conclusion, an
interpretation which would
invalidate the act of the public
authority concerned is apt to
defeat the intention of the law
maker or to lead to injustice or
absurdity or to advance rather
than suppress the mischief aimed
at by the law in question. If
the law maker or the Legislature
feels strongly enough about
possible contraventions, it can
and often does impose a penalty
as sanction. But where no
penalty is imposed the
stipulation remains nonetheless
binding like any other law. Like
any other law however, it is
liable to be breached. In this
case the Supreme Court is faced
with the legal consequence of a
breach or contravention of the
statute which happens to impose
no penalty."
Chief Williams further submitted
that the practice has always
been to interprete statutory
provisions as no more than only
directory if the provisions
concern the performance of a
public duty, and the case is
such that to hold the act done
in violation of the law void,
would only inconvenience or work
injustice to those who have no
control over the officials
entrusted with the performance
of the duty under the law. And,
that it is not only desirable
that the Courts give judgments
as expeditiously as possible,
but of more value is the
consideration that the Courts
give correct decisions than that
they do so within a prescribed
period. He therefore opted for
the view that the provision be
interpreted as directory only,
Bello, J.S.C. in his dissenting
judgment appears to support this
view when he, at page 338, said:
"It seems to me .... to construe
the subsection mandatory will
not promote but will frustrate
its objects and purpose. Instead
of being a vehicle for
expeditious administration of
justice, it will be a shackle to
the administration of justice
and hinder its speed with the
consequential inconveniences and
inflation in the costs of
litigation. On the other hand,
to construe the subsection
directory will be a panacea for
all the malaise and ills of its
mandatory meaning."
The underlying justification for
these arguments is that if the
subsection is construed as
mandatory, then any judgment
delivered outside the period
even for one day, will be void.
A decision which will entail
considerable inconvenience to
the parties and their witnesses,
and extra costs of litigation
when the parties have no control
over the judge. In rejecting
this line of argument in the
case of IFEZUE VRS. MBADUGHA
(SUPRA), Aniagolu, J.S.C. (who
wrote the leading judgment for
the majority) at page 328 said:
"It has been argued that to
nullify such a judgment is to
punish innocent parties. That
argument is unacceptable because
in any case where a judgment is
set aside by an appellate Court,
some losing party suffers, by
the appeal being decided against
him. Such a subjective
consideration should not, and
will not deter an Appeal Court
from deciding an appeal
accordance to legal justice."
Moreover, in our jurisdiction
judicial power must be conceived
of as a special type of public
duty imposed upon the judge by
our Constitution which vests the
judicial power of the state in
the Judiciary. This power is to
be exercised on behalf of the
people from whom justice
emanates. And, we the judges
are obliged to exercise this
power, in the performance of our
judicial duties, for the
attainment of "Freedom and
Justice" for our people. This
duty must be seen as special and
not, therefore, be equated to
other types of duties which may
be imposed on other categories
of public officers under any
law. The primary responsibility
of a Court, as I see it, is to
do justice to those who appear
before it according to law.
And, any conduct on its part
which is subversive of, or tends
to undermine, this primary duty
is to be decried. I conceive of
failure to deliver judgment
within a stipulated statutory
period as a conduct likely to
undermine this duty because of
its potential in depriving a
Court of certain advantages
gained at the trial but which
could be eroded by the passage
of time and any inordinate delay
in the delivery of judgment.
Needless to say that one of the
cardinal principles of law, and
a clarion call to judges, is
that Justice delayed is Justice
denied.
In rejecting the argument that a
law which imposes a public duty
on officials over whom the
parties have no control is often
interpreted as directory,
Obaseki, J.S.C. in the case of
IFEZUE VRS. MBADUGHA (SUPRA) at
page 346, said:
"I venture to say that the duty
of adjudication is in a class by
itself and should not be placed
in the same category as simple
executive public duties. The
presumption that necessarily
arises from the failure to
perform the public duty of
adjudication within the time
prescribed is that of
miscarriage of justice. Justice
delayed is justice denied is the
favourite song of today. Any act
or conduct of a judge which
denies justice to the parties
within the time stipulated by
the Constitution amounts to
miscarriage of justice in the
determination of a case. This
miscarriage cannot but be fatal
to the decision and renders it
null and void. Rather than bring
inconvenience and injustice to
parties in a case to hold null
and void a decision delivered in
contravention of section 258(1)
of the 1979 Constitution, it
brings justice or an opportunity
to see that justice is done to
the parties."
It is true that the above dictum
related to a constitutional
provision; it should no less be
relevant if the law concerned
were an ordinary enactment;
provided, of course, the
language employed enables it to
be construed as absolute or
imperative.
Despite strong arguments urged
for a directory construction be
put on the section, the majority
of the Court, considered the
language used in the provision
and held that the sub-section
was mandatory and any judgment
delivered outside the three
months period of limitation was
null and void. However, this
interpretation is not
necessarily shared. It was
common ground between all the
Counsel in the case and the
Court that a Court could, after
reserving judgment, re-open case
and hear further argument; but
that this must be within the
three months period for the
delivery of judgment and not
beyond it.
But before dealing with the
issues raised by this appeal,
would like to crave indulgence
and digress to make a comment on
the standard of scholarship
displayed in the briefs
submitted in this case. Although
a Court is not justified in
criticizing Counsel for taking a
wrong point of law, this Court
must be frank and honest to say
that it has had no meaningful
assistance from both Counsel;
particularly, learned Counsel
for the respondents in the
briefs submitted in the instant
case. Although Rule 2A of
L.I.1107 was applied in the
Court of Appeal case of P.S.
INTERNATIONAL VRS. GODKA GROUP
OF COMPANIES (CIVIL APPEAL NO.
27/98) dated 15th April, 1999
(UNREPORTED), this is the first
time this Court is being called
upon, as the highest Court, to
give an authoritative
interpretation of the Rule and
to determine its applicability
to proceedings before
Chieftaincy tribunals.
The seismic effect of such a
decision on the Judicial
landscape must be obvious to
merit a high level of
scholarship rather than the
laisser-faire approach which is
obvious in the briefs submitted.
I think for far too long this
Court has had to tolerate
"make-do briefs" from Counsel
without complaining, so that
paying tribute to or
acknowledging the assistance of
Counsel in a judgment because of
the quality of briefs submitted
has become rare these days. I
think I will be speaking for the
Court when I say that whenever a
recondite or novel point of law
likely to have a profound impact
on or serious implications for
the administration of justice
arises in a case before us, we
have a right to expect, and
indeed demand, a lucid and well
written brief for our
consideration before we make up
our minds.
In a case like the instant one,
one would have expected an
instructive examination of the
role and attitude of the Courts
in the interpretation of
statutes, especially with regard
to the principles of
interpretation in cases like the
HEYDON's case where the mischief
rule was stated and any
subsequent decisions, both by
our Courts and those of other
common law jurisdictions; the
jurisprudential considerations
which should underpin our
consideration to apply Rule 2A
of L.I. 107 to Chieftaincy
Tribunals. Finally, whether Rule
2A of L.I.1107 is to be
interpreted as mandatory or
directory and the considerations
a Court takes into account in
such determinations. A poorly
written brief impinges upon the
quality of a judgment while a
well written and lucid brief is
not only a joy to the judge but
also enhances the quality of the
judgment.
Now, back to the issues I
perceive as relevant in this
case. To start with I give full
weight to the unanimity of views
expressed in the Courts below
and do agree with the
interpretation put on Rule 11 of
C.I. 27 by both the High Court
and the Court of Appeal: that
is, that the delivery of a
judgment after hearing a
petition is imperative under the
Rule but a reasoned judgment
immediately after hearing a
petition is not required. It
will be perfectly legitimate for
a Regional Chieftaincy Tribunal
to give its judgment
immediately, and reserve reasons
to be given later. Apaloo, J.A.
(later C.J) did point out in the
case of AKILL VRS. WHITE CROSS
INSURANCE CO. LTD., C.A. 73/66,
judgment of the Court of Appeal,
26 June, 1967 (unreported) that:
"Trial Courts should assign
reasons for their conclusions.
Judges and Magistrates cannot be
too often reminded that what the
parties submit their differences
to, is, the reasoned
determination of a human
judicial tribunal not to the
oracular pronouncement of any
deity. Where the conclusion is
reasoned, it will, even if
erroneous dispel any suspicion
of arbitrariness which an
unreasoned conclusion is likely
to engender in the minds of
unsuccessful litigants."
Although the above dictum may
appear to emphasise the need to
immediately give a reasoned
judgment after the hearing of a
case, the requirement that
reasons are a necessary
component of a judgment is
certainly implied Apaloo, J.A.
(as he then was) delivered the
above dictum at a time when
there was no statutory provision
limiting the time for the
delivery of a judgment after
hearing of a case. The dictum
must therefore be read subject
to Rule 2A of L.I. 1107 and
other similar legislative
provisions on time for the
delivery of judgment. So that
if it becomes necessary for such
a tribunal to give judgment and
reserve the reasons, it must
give the reasons within the time
limited for the delivery of
judgments by that tribunal.
Because, as already pointed out,
reasons are a necessary
component of a judgment. This is
what my learned brother Adzoe,
J.S.C. meant when, in his
judgment, he said reasons are
essential to give juridical
efficacy to the judgments of the
Courts, especially in contested
cases." DARKE IV VRS. DARKE IX
(1981) GLR 144 and SANDEM NAB
VRS. ASANGALISA (1996-97) SCGLR
302 are cases in which it has
been emphasised that reasons are
essential to a judgment.
Elsewhere in this opinion it has
been pointed out that the Court
of Appeal failed to apply Rule
2A of L.I. 1107 which it had
identified as a rule of practice
in the High Court which was
applicable to the case. Thus
the Court left a very vital
issue between the parties
unresolved. The only reason I
can offer for the Court of
Appeal's error is to blame it on
that Court's view as to the
meaning and import of Rule 2A of
L.1107 and its effect on a
judgment delivered outside the
statutory period of six weeks.
The Court of Appeal in a
previous decision in the case of
P.S. INTERNATIONAL LTD. VRS.
GODKA GROUP OF COMPANIES, C.A.
27/98, dated 15th April, 1999
(unreported) declined to place a
mandatory construction on the
said Rule 2A of L.I. 1107 and
described it as "purely
administrative". The Court
therefore refused to invalidate
a judgment although it was given
over one year above the
statutory time limit of six
weeks. The Court of Appeal may,
therefore, have found itself
constitutionally hamstrung to
follow its own previous
decision. Article 136(5) of the
Constitution provides that "the
Court of Appeal shall be bound
by its own previous decision"
It could be the Court of Appeal
might have had a change of mind
as to the construction it had
earlier placed on this rule in
the case of P.S. INTERNATIONAL
VRS. GODKA (SUPRA) and decided
to leave the issue to this Court
for an authoritative
pronouncement, as it found
itself constitutionally obliged
to follow the P.S. INTERNATIONAL
LTD. case. This is because
Benin, J.A., who wrote the
judgment in this case, was a
member of the Court when it gave
the decision in the P.S.
INTERNATIONAL LTD case. In P.S.
INTERNATIONAL VRS. GODKA GROUP
OF COMPANIES (Supra), the Court
of Appeal was urged by learned
Counsel for the Appellant to set
aside the judgment of the trial
High Court, because it was
delivered one year after the
close of case contrary to Rule
2A of L.I. 1107. It was agreed
between the parties that the
case was concluded on 25th
March, 1994 and the judgment was
not given until on 17th May
1995. However,the court declined
to set aside the judgment and
held that Rule 2A of L.I. 1107
was" purely administrative".
The use of this phrase coupled
with the rejection of the
argument of Counsel makes me
conclude the phrase was intended
to mean that the Rule was
directory only.
This is how the Court of Appeal
disposed of the argument of
Counsel:
"Counsel also urged the Court to
declare the judgment null and
void on the grounds that it was
delivered on 17th May, 1995, one
year after the conclusion of the
trial and contrary to the
provisions of Order 63 rule 2A
of the High Court (Civil
Procedure) Rules, 1954 (LN 140A)
as amended by L.I. 1107.
Evidence in the case closed on
25th March, 1994, and Counsel
was right that the judgment was
delivered one year thereafter on
17th May, 1995.
L.I. 1107 provides for 'Time
Limit for delivery of
judgments', in r 2 of Order 63
as amended by the instrument.
Under r 2A (3), (sic) the court
is required 'to deliver judgment
as soon as possible after the
close of each case before it,
and in any event not later than
six weeks after the close of any
such case."
And commenting on the Nigerian
case of IFEZUE VRS. MBADUKHA
(SUPRA) and together with a
commentary on the said case in
the GHANA LAW REVIEW (1983 - 86)
VOL. 15, p.221 by Mr.
Bimpong-Buta, which was relied
upon by Counsel in his argument,
the Court said:
"Counsel drew our attention to a
similar limitation period for
delivery of judgments in the
Nigerian Constitution. He
pressed us to follow or be
persuaded by the view of the
Nigerian Supreme Court in the
case of IFEZUE V. MBADUGHA,
reported in (1985) LRC (CONST)
114. Neither the facts nor the
relevant constitutional
provision was made available to
this court, except that
according to counsel, the
Supreme Court of Nigeria
declared the judgment of the
lower court a nullity because
the judgment was delivered
outside the prescribed period.
Counsel further referred to a
commentary on that case by Mr.
Bimpong-Buta, Director of the
Ghana School of Law, in the
Review of Ghana Law 1983 - 86,
Vol. 15, p.221. The commentator
suggested that the courts of
this country ought to construe
Rule 2A of Order 63 as a
mandatory provision, so that
where it is not complied with
the courts must declare the
judgment in question a nullity.
I am not in the least persuaded
by counsel. In Nigeria the
period of limitation is a
constitutional provision and
therefore probably couched in
mandatory terms. There is
nothing in the character of L.I.
1107 that even remotely implies
nullification of a judgment that
is delivered outside the
prescribed period. It seems to
me that the provisions of the
Instrument are purely
administrative."
Finally, giving reasons why it
felt the rule was not mandatory
but rather directory only, the
Court of Appeal had this to say:
"In terms of paragraph (6) of
Rule 2A of Order 63, as inserted
by L.I. 1107, where a judgment
is not delivered within six
weeks a party may notify the
Chief Justice and request that a
date be fixed for delivery of
the judgment. And under para.
(7) the Chief Justice may fix a
date for the delivery of the
judgment and the court has a
duty to comply with the
directive accordingly. The rules
do not provide that a judgment
delivered outside the six weeks
period shall be declared null
and void. And think that, while
not disputing the force of the
Nigerian authority in its own
judicial environment, that
judgment has not the least
persuasive authority in our
courts, where no such mandatory
character is expressed or
implied under Order 63 r 2A of
the High Court Rules, nor under
the Constitution of Ghana. And
indeed, litigation as it is at
the present is already expensive
enough. To construe the local
rules in conformity with
Counsel's submission and declare
null and void a whole judgment
obtained after years of
litigation would be most unjust
and unfair to the parties, who
have no control over the
delivery of judgments by the
courts. The parties would
thereby be punished for the
indolence and neglect of
judicial officers but the real
culprits pay no price.
I think, short of a mandatory
provision, the disciplinary
power of the Chief Justice over
offending judges is reasonably
deterring enough to keep the
judges on their toes. I do not
therefore accept the invitation
of counsel that the judgment
ought be declared a nullity."
Thus the Court of Appeal did not
even consider what possible
mischief the rule is intended to
cure; let alone the effects of a
whole year's delay would have
had on the appreciation by the
judge of the evidence led before
him, Certainly, the judge would
have lost the advantage of
having seen and heard the
witnesses, observed their
demeanour for the purpose of
assessing their credibility.
Especially when there had been
several intervening cases, with
its attendant witnesses, to be
assessed by the judge. This will
fracture the law that when it
comes to the credibility of
witnesses and findings of fact,
the appellate tribunal is bound
unless it has very strong
reasons to the contrary.
Since the case of P.S.
INTERNATIONAL VRS. GODKA GROUP
OF COMPANIES (Supra) appears to
be the first case in which Rule
2A of L.I. 1107 was invoked and
the Court of Appeal urged to
interpret the provisions as
imperative, the non-compliance
with which will render a
judgment void; and coupled with
paucity of argument in the
briefs submitted by both
Counsel, I find it convenient to
begin my views on the rule with
a consideration of the reasoning
of the Court of Appeal in the
P.S. INTERNATIONAL case. The
reasoning of the Court of Appeal
has been quoted above in full.
It is now a proposition familiar
to all lawyers that our Courts
are not bound to follow the
decision of Courts in other
jurisdictions. Such cases are
of persuasive authority only.
I, therefore, want to think that
the Nigerian case of IFEZUE VRS
MBADUGHA (supra) was cited to
the Court of Appeal for that
purpose only. And, I think, the
commentary on that case by Mr.
Bimpong-Buta, published in the
REVIEW OF GHANA LAW (1983-86)
Vol. 15 page 221 was also cited
to the Court for the same
purpose. The Court of Appeal
was perfectly within its rights
when it rejected not only the
authoritative nature of the
decision in the IFEZUE case, but
also when it refused to be
persuaded by that decision. In
doing so, however, I thought the
Court of Appeal ought to have
premised its decision on legal
grounds rather than on the mere
fact that "in Nigeria the period
of Limitation is a
constitutional provision and
therefore probably couched in
mandatory terms". With much
respect, an ordinary enactment
or legislation, like the one in
question, can also be couched in
mandatory terms; just as a
constitutional provision, which
imposes a duty on a person can
be framed, not in imperative
terms only, but also in
directory terms. To determine
whether the provisions of a law
is absolute or not does not
depend on the gender of the law
concerned: that is to say,
whether it is a Constitution or
an ordinary enactment since
there is no rule of
interpretation which presumes
such a meaning in favour of any
type of enactment. The function
of interpretation is discovery
of the intentions of the law
maker taking into consideration
the language used.
And as was pointed out by
Aniagolu, J.S.C. in the IFEZUE
case at page 324:
"The object of all
interpretation is to discover
the intention of the law makers
which is deducible from the
language used." ('Emphasis
mine).
In construing the provisions of
an enactment, whether it is a
Constitution or an ordinary Act
must apply the canons of
construction to find the
intentions of the Legislature.
This has no relation to the
gender of the enactment - a
Constitution, an Act of
Parliament, a Decree or a
Legislative Instrument etc. It
is therefore important that the
Courts do not defeat the plain
meaning of an enactment either
by introducing their own words
(judicial legislation) or by any
extraneous considerations beyond
a consideration of the mischief
intended to be cured. Therefore
in construing an enactment like
Rule 2A of L.I. 1107, we must
use the rules of interpretation
which will assist us arrive at
the true intentions of the
lawmaker as embodied in the
provisions. And one of the
first rule is that if there is
nothing to modify, vary or
qualify the language of the
enactment concerned, it has to
be construed in the ordinary and
natural meaning of the words
used.
This was emphasised in the case
of ATTORNEY-GENERAL VRS. MUTUAL
TONTINE WESTMINISTER CHAMBERS
ASSOCIATION (1876) 1 Ex.D. 469
by Jessel, M.R. when he said at
page 475 - 476 as follows:
"Before considering the statute,
it may be as well to say a word
or two upon what I think are
established rules of
construction, which, whether
forgotten or not, are often
disregarded in argument, and I
am afraid sometimes even in
judgments. Those rules, I take
it, are these: In construing
legal instruments, whether Acts
of Parliament or not, it is the
duty of the Court to give to
every term used its ordinary and
legal meaning, unless there is
something either in the nature
of the subject-matter or in the
context which compels the Court
to come to a different
conclusion."
Alongside this is the corollary
rule that the provisions of the
enactment must be read, not in
isolation, but as a whole. "It
is the duty of Courts of
justice", so advises Lord
Campbell, V.C. "to try to get
at the real intention of the
legislature by carefully
attending to the whole scope of
the statute to be construed".
See LIVERPOOL BOROUGH BANK VRS.
TURNER 30 L.J. (Ch.) 379 at page
380 - 381, where Lord Campbell,
then sitting as Lord Chancellor,
felt compelled to give this
advice because he held the view
that no universal rule could be
laid down for the constructions
of statutes, as to whether
mandatory enactments should be
considered directory only or
obligatory, with an implied
nullification for disobedience.
And in the case of CULLIMORE
VRS. LYME REGIS CORP. (1961) 3
W.L.R. 1340 at page 1342, Edmund
Davis, J. re-echoed the same
principle when he said:
"The conclusion I have quite
firmly come to is that the
plaintiff is entitled to each
and every one of the
declarations he has asked for.
In coming to that conclusion, I
have directed myself, as Deman,
J. did in CALDOW VRS. PIXELL
(1877) 2 C.P.D. 562 at 566,
that, in determining the sort of
questions which are raised by
these proceedings, the whole
scope and object of the
particular piece of legislation
under consideration requires to
be locked at, and I accordingly
turn to consider the Act of
Parliament, Coast Protection
Act, 1949, with which we are
here concerned, though
fortunately not with every
portions of that Act of
Parliament." (Emphasis mine).
The Court of Appeal, with much
respect, failed to adhere to
these basic rules of
construction. For example, Rule
2A of L.I. 1107 consists of
seven sub-rules or paragraphs
but it only considered sub-rule
(2), rather than reading the
provisions as a whole, before
concluding that "there is
nothing in the character of L.I.
1107 that even remotely implies"
it is an imperative piece of
legislation, non-compliance with
which can lead to a
"nullification of a judgment
that is delivered outside the
period". It then proceeded to
also consider sub-rules (6) and
(7) in isolation. This is not
good enough. Even if it had read
sub-rules (1) and (2) together,
the Court of Appeal would have
discovered the scheme of the law
and true intentions of the
lawgiver. The approach of the
Court of Appeal for the
interpretation of the rule has
everything in the books to fault
it.
My Lords, the issue as to the
meaning and scope of Rule 2A of
L.I. 1107 is very much alive in
this case and we are obliged to
give an interpretation which
should be placed on Rule 2A of
L.I. 1107 and its effect on a
judgment delivered outside the
six weeks time limit, and its
possible application to
Chieftaincy tribunals.
The relevant provisions of Rule
2A of L.I. 1107 state:
"2A. (1) At the close of a case
before it the Court shall fix a
date, which shall not be later
than six weeks after the close
of that case, for the delivery
of judgment thereon.
(2) It shall be the duty of the
Court to deliver judgment as
soon as possible after the close
of each case before it, and in
any event not later than six
weeks after the close of any
such case.
(3) For the purposes of this
rule a case shall be deemed to
be closed when the evidence has
been given to the Court and the
speeches subsequent thereto have
been concluded
(4) The times of the vacations
in any year shall not be
reckoned in the computation of
the period of six weeks referred
to in this rule."
(5) Where for any reason
judgment has not been delivered
with the period of six weeks
referred to in the rule, the
Court shall forthwith inform the
Chief Justice in writing of that
fact and shall state the reasons
for the delay in so delivering
judgment and the date upon which
it is proposed to deliver
judgment.
(6) Where the judgment has not
been delivered within the period
of six weeks referred to in this
rule, any party to the
proceedings may in writing
notify the Chief Justice of that
fact and request that a date be
fixed for the delivery of
judgment.
(7) Upon receiving a
notification from the Court or a
party under paragraph (5) or (6)
the Chief Justice may fix a date
for the delivery of judgment by
the Court and notify the Court
accordingly, and it shall be the
duty of such Court to ensure
that judgment is delivered upon
the date so fixed by the Chief
Justice."
My Lords, we should by now be
aware that whenever a law, like
Rule 2A of L.I . 1107, provides
a period within which a public
duty is to be performed, the
issue which invariably arises is
the effect of non-compliance
with the law: whether it renders
the act void or not. The answer
to this question, we have seen,
depends upon the law being
considered MANDATORY or
DIRECTORY Lord Penzance, faced
with a similar situation in the
case of HOWARD VRS, BODINGTON
(1977) 2 P. D. 203, asked
himself the question "what is
the consequence of so wide a
departure from this provision of
the statute?" This was a case
involving the Public Worship
Regulation Act, 1874 which
provided that a person against
whom a representation of an
illegal conduct had been
levelled must be served within
21 days upon receipt of the said
complaint. A copy must also be
served on the Archbishop of the
Diocese who should then require
a judge to hear the complaint.
The "accused" was served beyond
the stipulated 21 days after
which the Archbishop requested a
judge to hear the complaint. It
was held that the proceedings
were void, and must be dismissed
by the judge; for the provisions
as to the time within which a
copy of representation should be
transmitted to the party
complained against was
imperative, and had not been
complied with. Lord Penzance
captured nicely in his judgment
the problem a judge is faced
with in such a situation. He
said at page 210 - 211
"The real question in all these
cases is this: A thing has been
ordered by the legislature to be
done. What is the consequence if
it is not done? In the case of
statutes that are said to be
imperative, the Courts have
decided that if it is not done
the whole thing fails, and the
proceedings that follow upon it
are null and void. On the other
hand, when the Courts hold a
provision to be ..........
directory, they say that,
although such provision may not
have been complied with, the
subsequent proceedings do not
fail. Still, whatever the
language, the idea is a
perfectly distinct one. There
may be many provisions in Acts
of Parliament which, although
they are not strictly obeyed,
yet do not appear to the court
to be of that material
importance to the subject-matter
to which they refer, as that the
legislature could have intended
that the non-observance of them
should be followed by a total
failure of the whole
proceedings. On the other hand,
there are some provisions in
respect of which the Court would
take an opposite view, and would
feel that they are matters which
must be strictly obeyed,
otherwise the whole proceedings
that subsequently follow must
come to an end. Now the question
is, to which category does the
provision in question in this
case belong?" We may pause to
observe: Precisely the same
questions we have to determine
in respect of Rule 2A of L.I.
1107.
If therefore, the true intention
of the lawmaker embodied in Rule
2A of L.I. 1107 is the
invalidation of judgments
delivered more than six weeks
after the close of case, then
any construction by us which
makes it easy to evade the law
will certainly not promote that
intention and purpose of the
law, and will be unjust and
amount to a miscarriage of
justice. And if it is not the
intention of the lawgiver to
have judgments delivered beyond
the six weeks period
invalidated, an interpretation
which imposes such an unintended
result will equally be unjust
and amount to a miscarriage of
justice and therefore
unacceptable.
For me, therefore, the need to
avoid an interpretation which
would have the effect of
reducing the law to futility or
stripping it of its potency, and
rather accept a construction
which would lead to an effective
result appeals to me. This
attitude is based upon the
premise that the legislature
could not legislate only to
bring about a futile result.
Because some of our judges, as
Chief Williams put it, are still
in the habit of "preserving"
their judgments instead of
"reserving" them. This group of
judges may be few in the system
but the law should not be
interpreted to allow them to
easily evade its operation.
So that although there may not
be any single universal rule for
the determination whether a
particular enactment is
mandatory or directory, I
consider it safe, and therefore
intend to follow, the principle
enunciated by Lord Penzance in
HOWARD VRS. BODINGTON (SUPRA):
to look at the subject-matter of
Rule 2A of L.I. 1107,
considering the importance of
the provision that has been
violated by the Court and relate
the said provision to the
general object and intendment of
the law. We must do this in an
effort to determine whether the
requirement that judgment be
given within six weeks after
close of case before a Court is
of such material importance to
the Court's business so that the
lawmaker could have intended
that the non-observance of that
provision should be followed by
total failure of procedure. We
may then be in a relatively safe
position to determine if the law
is imperative or directory. And
in trying to isolate the purpose
or object of Rule 2A of L.I.
1107, we must have regard to the
"Mischief Rule" as was
formulated in the HEYDON'S CASE
3 Co. Rep. 7. At 7b the rule
provides:
"For the sure and true
interpretation of all statutes
in general (be they penal or
beneficial, restrictive or
enlarging of the common law)
four things are to be discerned
and considered - (1st) What was
the common law before the making
of the Act. (2nd) What was the
mischief and defect for which
the common law did not provide.
(3rd) What remedy the
Parliament hath resolved and
appointed to cure the disease of
the Commonwealth. And (4th) The
true reason of the remedy; and
then the office of all judges is
always to make such construction
as shall suppress the mischief,
and advance the remedy, and to
suppress subtle inventions and
evasions for continuance of the
mischief, and PRO PRIVATO
COMODO, and to add force and
life to the cure and remedy,
according to the true intent of
the "makers of the Act, PRO BONO
PUBLICO". (Emphasis supplied).
The above rule of construction
naturally directs that a judge,
faced with a problem as in the
instant case, must be guided by
the historical background of the
statute - what evil it is
intended to cure and the remedy
the law seeks to put in place to
secure the intended result; and
whether the intended
interpretation will give premium
to curing the disease or not.
That there has been a general
public outcry against delays in
the administration of justice
before the amendment to Order 63
r 2 which deals with "Order of
Business at Sittings" by the
addition of Rule 2A by Section 7
of L.I. 1107 specifying "Time
for Delivery of Judgments", is
beyond dispute; and that part of
this public criticism was
directed at the inordinate
delays in the delivery of
judgments also cannot be
denied. We can therefore say,
without fear of contradiction,
that Rule 2A of L.I. 1107 was
aimed at securing the delivery
of judgments within six weeks
rather than leaving it to the
discretion of the judge to do so
"within reasonable time" which
had been the case before. The
enactment under consideration
has spent over two decades on
the books but for the Courts,
the custodians of the law, it
had been business as usual with
the continued criticism of delay
in the administration of
justice. And when the Court of
Appeal was eventually called
upon to enforce the provisions
of the law in the case of P.S.
INTERNATIONAL VRS. GODKA GROUP
OF COMPANIES (supra) it
developed cold feet possibly
because the fall out from such a
judgment might have been too
much to contemplate.
I have already set out in detail
the provisions of Rule 2A of
L.I.1107. Despite this I will
again set out sub-rules (1) and
(2) which I consider as
essential in the scheme of the
rule and also as the controlling
provisions of the rule as a
whole. But I can say now that
looking at the scheme and
language of the rule, a clear
reading of the rule, especially
sub-rules (1) and (2) does not
disclose any ambiguity in
language; and since the words
are not ambiguous it may not be
necessary for us to even
consider the consequence which
will flow from a particular
construction, bearing in mind
the mischief which the rule is
intended to cure.
Sub-rule (1) provides:
"(1) At the close of a case
before it the Court shall fix a
date, which shall not be later
than six weeks after the close
of that case, for the delivery
of judgment thereon."
This is not a negative provision
but is effectively positive in
that it imposes on the Court the
duty to fix a date for its
decision. And in fixing a date
for the delivery of its judgment
a positive duty is again imposed
on the Court that the date so
fixed "shall not be later than
six weeks after the close of
that case". The necessary
implication of sub-rule (1), in
my view, is that the High Court
cannot any longer adjourn a case
"SINE DIE for judgment" and add
a rider that "parties to be
notified" or "parties to be
served". In simple language a
case cannot now be adjourned,
after conclusion, CURIA
ADVERSARI (CAV.) Rather the
Court is under a duty to fix a
definite date for judgment which
must not be beyond six weeks.
And if sub-rule (1) is read
together with sub-rule (2) the
true intentions of the lawgiver
begins to crystallize and become
evident.
Sub-rule (2) provides:
"(2) It shall be the duty of the
Court to deliver judgment as
soon as possible after the close
of each case before it, and in
any event not later than six
weeks after the close of any
such case."
This provision, like that of
sub-rule(1), in my view,is also
not ambiguous for it to be
susceptible to more than one
interpretation.
The simple meaning of this
provision is that after the
close of a case before the High
Court, it shall be its duty to
deliver its judgment as soon as
possible but not later than six
weeks. Thus sub-rule (2), just
as sub-rule (1), also imposes a
positive duty on the High Court,
after close of case before it,
not only to deliver its judgment
but also to do so not later than
six weeks.
My Lords, the language employed
in the sub-rules are very
direct, clear and unambiguous
and must be given their ordinary
literal meaning. The provisions
of sub-rule (1) and (2) cannot
be said to be negative but
rather very positive; and their
cumulative effect is that they
impose on the Court not only a
duty to deliver its judgment as
soon as possible, but also to do
so within the prescribed period
of six weeks. The words used
are commanding and prohibitory
enough to enable the provisions
of sub-rule (1) and (2) to be
regarded as mandatory rather
than directory or "purely
administrative" as the Court of
Appeal put it in P.S.
INTERNATIONAL VRS. GODKA GROUP
OF COMPANIES (supra).
As if to put the issue of time
beyond doubt, the lawgiver in
sub-rule (4) provides that the
period of vacation shall not be
used in the computation of the
six weeks. This, to me, shows
that time is of the essence in
the scheme of Rule 2A of L.I.
1107, like any other rule on
time. Sub-rule (5) of the rule
stipulates that where for any
reason a Court is unable to
deliver the judgment within six
weeks it is the duty of that
Court to inform the Chief
Justice "forthwith" in writing,
stating the reasons for the
delay and the proposed date the
Court intends to deliver the
judgment. The Chief Justice
under sub-rule (7) may either
agree to the proposed date or
fix any date for the delivery of
the judgment and it "shall be
the duty of [The] Court to
ensure that judgment is
delivered upon the date so
fixed". This provision is to
enable the Court itself to ask
for extension of time from the
Chief Justice within which to
deliver the judgment. The
parties may also do the same
under sub-rule (6). This is
because the Court loses its
jurisdiction in a case six weeks
after the close of that case
before it and unless the
jurisdiction is restored by
extension of time, whatever
judgment it delivers beyond the
six weeks period is invalid. I
do not think, therefore, that if
the delivery of judgment within
the six weeks period is even
prevented by the difficulties of
the Court itself; like the Court
being unable to cope with its
business, that would not be
sufficient grounds to infringe
the rule. In any case the Court
will not find itself in such a
difficulty if only it obeys a
Judicial Service Circular
directing all Judges not to have
more than three part-heard cases
on their cause list at any
particular time. Where the
words of a statute so permit -
we could do equitable justice by
giving a liberal interpretation
to the provisions in question.
However, where the words are
clear and unambiguous, and there
is nothing compelling us, from
the subject-matter, to do
otherwise, then we have a duty
to give the provision the
literal construction, the
consequences notwithstanding. I
have no doubt in my mind that
the framers of our Rule 2A of LI
1107 intended the rule to be
binding on the Courts because of
the obvious reason that the
Courts have often inflicted on
parties interminable delays in
the delivery of judgments. lt is
the same thing as justice being
delayed,which is usually
referred to as a denial of
justice.
I have no doubt that any
judgment delivered outside the
mandatory six weeks period,
without extension of time by the
Chief Justice, will be null and
void, and of no effect.
The last issue, but by no means
the least, which needs to be
considered in this opinion is
whether it will be proper to
invoke Rule 28 of C.I. 27 and
apply Rule 2A of L.I. 1107 to
proceedings before a regional
chieftaincy tribunal. This
issue is important.
In determining the issue whether
Rule 2A of L.I. 1107 should be
applied to a chieftaincy
tribunal of a Regional House of
Chiefs, we cannot ignore the
nature and character of a
dispute before such a tribunal.
In the case of KYEREH VRS.
KANGAH (1978) 1 G.L.R. 83, C.A.
(FULL BENCH), SOWAH, J.A. (as he
then was) delivering the
majority decision said at page
91 thus:
"I think, broadly, the trial of
a dispute involving Chieftaincy
is more in the nature of a
fact-finding inquiry ..........
If the case involves
enstoolment, the burden rests
with both parties to lead
evidence and establish the
customary or constitutional
process by which the Chief in
the area is nominated, elected
and enstooled; it becomes the
duty of the tribunal to test the
validity of the nomination by
what has been established to be
the constitutional process..."
(Emphasis supplied).
And if the eligibility of a
candidate is involved it behoves
on both sides to lead evidence
as to the family or families
from which a candidate is to be
nominated; if rotatory the
family whose turn it is and
whether the candidate comes from
the appropriate lineage.
All these issues involve
findings of fact. A stream of
decided cases, after KYEREH VRS.
KANGAH (Supra) have held that a
Chieftaincy tribunal is
essentially a fact-finding
tribunal. When the issue,
therefore, is assessment of
evidence to make findings of
fact, human memory is not
evergreen but has tremendous
limitations. It is particularly
limited by time so that one's
impressions about or knowledge
of persons and things are
normally eroded by the passage
of time; and such passage of
time has an arithmetical
progression relationship on the
memory loss. The Court of Appeal
case of NEIZER VRS. WOOD @
AFRIYIE (1987-88) 2 G.L.R. 476
provides a classic example. The
plaintiff in that case sued her
husband's successor on 8th May,
1973 for certain reliefs.
Evidence was heard up to 5th
March, 1975 before
Koranteng-Addow, J. (as he then
was). He was subsequently
appointed as Attorney of Ghana.
He retired voluntarily from the
Judiciary at 60 years in May,
1979. But following a request
from the Chief Justice he
delivered his judgment in the
case on 6th May, 1985 and
allowed the plaintiffs claim.
The defendant appealed against
the said judgment on the
grounds, inter alia, that since
Mr. Justice Koranteng-Addow had
retired he lacked jurisdiction
to deliver the judgment he
purported to have done. The
Court of Appeal allowed the
appeal. And speaking per
Francois, J.S.C. at page 480-481
said:
"The judgment in this appeal was
however delivered in 1985, when
he was past his compulsory
retiring age. In the normal
course of events he would have
retired compulsorily in 1984.
Moreover the interval of time
between the last hearing of the
matter and the delivery of
judgment, computed at ten years,
is unreasonable by any standard,
and clearly subversive of the
spirit and intendment of the
Constitution. In practical terms
also, the learned judge would
have lost all familiarity with
the essential details of the
matter in dispute which would
make relevant and unimpeachable
his findings thereon." (Emphasis
supplied).
Although the Court of Appeal
commented adversely on the
inordinate delay in the delivery
of judgment and its blurred
effect it might have had on the
overall perception of witnesses
and analysis of their evidence,
the Court failed to discuss the
implications of non-compliance
with Rule 2A of L.I. 1107 by the
learned trial judge because the
judge retired under the 1979
Constitution, two years after
the rule came into effect and
after the grace period had
expired on the 31st 1day of
July, 1979. Evidence in the
case was completed on 5th March,
1975.
Also in the recent case of
BOYE-DOE VRS. TEYE & ANOR.
(2000) SCGLR 255, this Court set
aside a judgment on similar
grounds. This case came before
the Supreme Court from an appeal
from the Court of Appeal which
had affirmed the trial High
Court decision. The evidence
before the Supreme Court was
that the judgment of the High
Court was delivered, though by a
sitting judge, two years after
the trial judge had retired. The
Constitution allowed a retired
Superior Court Judge to continue
in office for a period not
exceeding six months as may be
necessary for him to deliver
judgment or do anything in
relation to the proceedings that
commenced before him previous to
his attaining the age of
retirement. The ground for
setting aside the High Court
judgment was that it was
delivered outside the
constitutionally permissible
period, albeit by another judge
who was a sitting judge; that
outside the six months period no
judge had jurisdiction to
deliver the judgment on behalf
of a retired judge. In this
case also Rule 2A of L.I. 1107
received the highest judicial
disregard, by default, without
even a comment on what the
excessive delay could have had
on the judges memory and his
subsequent analysis of evidence
and finding of facts.
In contrast the Nigerian Courts
have a clear-cut judicial policy
on such inordinate delays and
the effect on the judge's
recollection of the nuances of
the case. So that appeals were
being filed on that ground even
before the provision in Section
258(1) of the 1979
Constitution. The case of LAWAL
VRS. DAWODU & ANOR. (1972) 1 All
N.L.R. (PART 2) 207 is an
example where a ground of appeal
complained about the delay in
delivering the judgment. Coker,
J.S.C. who delivered the
judgment of the Court said at
page 279:
"Before considering the
arguments on appeal, we think it
appropriate at this juncture to
comment on the inordinate delay
in giving the judgment of the
High Court in this case.
Learned Counsel appearing for
the parties concluded their
addresses before the learned
trial judge on the 4th June,
1969 on which date the judge
announced and recorded that
judgment was reserved SINE DIE.
Judgment was not given in the
case until the 17th day of
April, 1970. One of the grounds
of appeal filed against the
judgment complains of the
inability of the learned trial
judge after such a long period
of delay to appreciate in their
proper Foci the issues raised or
to remember clearly his own
impressions of the witnesses
and/or their evidence. This is
not the first occasion when we
have to express the disapproval
of this Court of such
inexcusable delay in writing
judgment but it is well worth
consideration by all Courts that
human recollections may lose
their strength with the passage
of time and that justice delayed
is as bad as justice denied and
may even under certain
circumstances be worse."
(Emphasis mine).
And earlier on, in the 1965 case
of AWOBIYI & SONS VRS. IGBALAIYE
BROTHERS reported in (1965) 1
All N.L.R. 163 the Supreme Court
had had the occasions to
deprecate delays in the delivery
of judgments and commented
negatively on the effects such
delays have on the trial judge's
recollection of some essential
aspects of the proceedings. The
Court at page 165 made the
following observations:
"We agree with the Chief Justice
as to the impression created by
reading the transcript, but we
are, with respect, unable to
share his view that the
magistrates' decision ought not
to be disturbed .... The
presumption which the Chief
Justice felt justified in making
is further weakened by the lapse
of time between 21st September,
when Awokoya gave evidence, the
12th October, when the appellant
gave evidence and 7th November,
when judgment was delivered.
During these intervals, the
magistrate must have had to
direct his mind to numerous
other cases, and in such
circumstances, he must be
regarded as having lost much of
the advantage which he might
otherwise be supposed to have
derived from seeing and hearing
the witnesses, so that an Appeal
Court is in almost as good a
position as he is to form an
opinion of their reliability.
This ground of appeal is well
founded, and if it stood alone,
the question would be whether to
dismiss the plaintiffs' claim or
send the case back for retrial
so that an express finding might
be made by someone who heard the
evidence." (Emphasis supplied).
Again, in the case of CHIEF
JUSTUS UDUEDO AKPOR VRS, ODHOGU
IGUORIGUO (1978) 2 S.C. 115, the
Supreme Court of Nigeria took
the opportunity presented it in
that case and stressed the
importance of evaluating the
evidence of witness before the
memory of their demeanor and
credibility fades into
oblivion. In that case the
trial judge, following the
directives of the Chief Justice,
took leave of his normal duties
in one Judicial Division to
return to another division to
continue the hearing of a case
which he left uncompleted some
twenty-two months earlier while
working there. When the case
eventually came before the
Supreme Court, ldige, J.S.C.
asked a very pertinent question
"Can it be seriously contended
that even at this stage he
undoubtedly had a complete
impression of the demeanour of
the witness he saw some twenty
months ago and during which
period he had had to watch the
demeanour of other witnesses who
gave evidence in a variety of
other cases?" His Lordship
himself provided the answer when
he observed thus:
"Let it be remembered that in
assessing the relative value of
witnesses in order to reach a
decision on their credibility a
judge dealing with any given
proceedings has quite often to
consider INTER ALIA not only
their demeanour but sometimes
their personality, their
reactions to questions from both
Counsel in the course of
examination in chief and under
the 'fire of cross-examination',
all these go to leave a
cumulative impression with any
trial judge. Then, can it be
seriously expected that these
cumulative impressions will
necessarily remain over a period
of over two years in the face of
intervening hearing of evidence
from other witnesses in various
other cases in two judicial
divisions?"
The implied criticism of the
Chief Justice by his colleagues
cannot escape attention. The
principle deducible from all
these cases is that any
inordinate delay or long
interval either between the
reception of evidence of
witnesses in a proceeding, or
any such excessive delay or
interval between the close of a
case and the delivery of a
judgment should raise, before an
appellate tribunal, a strong
presumption that the trial court
had been denied the opportunity
to make any good use of its
advantage in seeing and
observing the demeanour of the
witnesses who appeared before
it; unless, of course, it is
clear from a thorough reading of
the record of proceedings that
the decision did not depend
solely on the analysis of the
evidence based on the
credibility of the witnesses
alone but on some other grounds
as well and that the delay or
long interval does not warrant
any interference with the
judgment by the appellate Court.
These considerations should be
more relevant to a Chieftaincy
tribunal which, as we have seen,
is essentially a fact-finding
tribunal. I do not have any
meaningful or useful
jurisprudential justifications
for exempting these tribunals
from the operations of Rule 2A
of L.I. 1107 (that is for
Judicial Committees of Regional
Houses of Chiefs).
Considering all that I have said
so far, I hold that Rule 2A of
L.I. 1107 should be applicable
to proceedings before the
Judicial Committees of the
various Regional Houses of
Chiefs. It was therefore
unlawful for the Judicial
Committee of the Central Region
House of Chiefs to have given
its reason for a judgment it had
earlier delivered beyond the six
weeks statutory period. This
renders null and void the
judgment it had given on 23rd
September, 1996 and reserved its
reasons. I will, therefore, for
the reasons stated in this
opinion and the view taken that
a Chieftaincy tribunal of a
Regional House of Chiefs falls
under the purview of Rule 2A of
L.1107, allow the appeal and set
aside both the judgment of the
High Court and that of the Court
of Appeal affirming same, and
grant the application for an
order of certiorari quashing the
decision of the judicial
committee of the Central Region
House of Chiefs dated 23rd
September, 1996.
Even though no provision exists
in Chieftaincy (Proceedings and
Functions) (Traditional
Councils) Regulations, 1972 L.I.
798 which is similar to Rule 28
of C.I. 27 to make Section 1 (1)
of the District Court Amendment
Rules, 1977, L.I. 1127, which
regulates time for the delivery
of judgment, applicable to the
judicial committees of
Traditional Councils, their
judgments can be set aside on
grounds of any inordinate delay
either between the reception of
evidence of witnesses, or
between the close of a case and
delivery of judgment if the
delay is likely to adversely
affect the tribunal's perception
of the credibility of witnesses
and the assessment of their
evidence.
However, without any intention
of derogating in any way from
all that I have said in this
judgment, it must be pointed out
that the legal position, after
IFEZUE VRS. MBADUGHA (SUPRA),
has been changed by the
CONSTITUTION (SUSPENSION AND
MODIFICATION) (AMENDMENT) DECREE
NO. 17 of 1985 which amended
Section 258 of the 1979
Constitution of Federal Republic
of Nigeria by the addition of a
new sub-section (4) which
provided thus:
"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 this section
unless the Court exercising
jurisdiction by way of appeal
from or review of that decision
is satisfied that the party
complaining of such
non-compliance has suffered a
miscarriage of justice by reason
thereof."
Then, there is also a provision,
which is PARI MATERIA, in
Section 294 (5) of the
CONSTITUTION OF THE FEDERAL
REPUBLIC OF NIGERIA
(PROMULGATION) DECREE NO. 24 of
1999. By these provisions
merely delivering a judgment
outside the statutory period of
three months after close of case
does not automatically render
the decision null and void as
was the case under Section 258
(1) of the 1979 Constitution as
interpreted in the case of
IFEZUE VRS. MBADUGHA (SUPRA).
The amendments now require the
appellant to satisfy the
appellate Court that failure to
deliver the judgment within the
statutory period has occasioned
a miscarriage of justice to him.
See the following cases in which
the various amendments were
applied. They are: THE M.V. "CAROLIE
MAERSIL" & 2 ORS. VRS. NOKOY
INVESTMENT LTD. (2000) 7 N.W.L.R.
587; LAMIKORO OJOKOLOBO & ORS.
VRS. LAPADE ALAMU & ANOR. (1978)
3 N.W.L.R. (PART. 61) 377;
MALKWARU VRS. BAYOLA (2000)
N.W.L.R. 64; AMINU MIKA' ILU VRS.
THE STATE (2000) 8 N.W.L.R. 469;
SAVANNAH BANK OF NIGERIA LTD.
VRS. STARITE INDUSTRIES OVERSEAS
CORP. & ORS. (2001) 1 N.W.L.R.
1945; VICTOR J. ROSSEK & 2 ORS.
VRS. AFRICAN CONTINENTAL BANK
LTD. & 2 ORS. (1993) 10 S.C.N.J.
20.
These are a few of the cases
where the sting in the RATIO OF
IFEZUE VRS. MBADUGHA (SUPRA)
removed by the amendments, had
been applied to ameliorate the
effect of non-compliance with
the statutory period for the
delivery of judgments.
Of course the Courts in Nigeria
might have experienced some
unpleasant effects of the
decision in IFEZUE case, hence
the amendments. Our situation
may be different for one,
possibly two, reasons. The
primary reason is that our rule
2A of L.I.1107, unlike Section
258 (1) of the Nigerian
Constitution, allows the judge
to apply for extension of time
under sub-rule (5) of Rule 2A of
L.I. 1107; and the parties
themselves could also do the
same under sub-rule (6).
The second reason why one cannot
now recommend such an amendment
in our circumstance is that,
after over two decades on the
statute books, this is the first
time the rule is being applied.
We must allow it to work for a
while, and hopefully, in
conjunction with the Judicial
Circular on part-heard cases,
before any useful evaluation can
be made whether the law is
achieving the intended
objectives or resulting in
miscarriage of justice. Even in
such a situation the
responsibility should not be
ours but that of the
legislature. I am, however,
confident that if the Courts can
adhere to the Judicial Circular
on part-heard cases, it will
compel legal practitioners to
discipline their diaries also.
This co-operation will go a long
way to enable the objectives of
the lawmaker to be achieved.
AMPIAH, J.S.C.:
I agree.
ADJABENG, J.S.C.:
I agree.
LAMPTEY, J.S.C.:
I also agree.
COUNSEL
Dr. Ekow Daniels for Appellants.
Ebow Dawson for Respondents.
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