⦿ CASE SUMMARY OF:
Obianwuna Ogbunyiya & 5 Ors v. Obi Okudo & Ors (1979) – SC
– Proper Custody;
– Elevation of a judge;
Obianwuna Ogbunyiya & 5 Ors
Obi Okudo & Ors
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– FRA Williams.
* FOR THE RESPONDENT
– Mr. Afolabi
⦿ FACT (as relating to the issues)
The appellants were the defendants in the Onitsha Judicial Division of the High Court of Anambra State where honourable Mr Justice Nnaemeka- Agu delivered a judgment in favour of the respondents on the 17th day of June 1977. The respondents as plaintiffs claimed against the appellants as defendants a declaration of title to land situate at Aboh Ogidi in Anambra State, damages for trespass thereon and an injunction restraining the appellants from further interference with the respondents ownership of the said land.
The appellants were dissatisfied with the judgment of the trial Court contending at the Court of Appeal that the trial is null and void, the same having been delivered by the trial Judge when he had no jurisdiction so to do.
Counsel for the appellant produced a copy of the official Gazette of the Federal Republic of Nigeria No. 48 of 6th day of October, 1977 from which he read from the Bar, a Government Notice No 1258 at page 1478 issued under the seal of the then Head of the Federal Military Government of Nigeria in which it was stated that the Supreme Military Council acting after consultation with the Advisory Judicial Committee has appointed Mr Philip Nnaemeka-Agu a Justice of the Federal Court of Appeal with effect from the 15th day of June 1977.
Thereafter counsel for the appellants urged the Court to hold on the 17th June 1977, Nnaemeka-Agu, J had ceased to be a Judge of the High Court of Anambra State, and therefore had no jurisdiction to deliver the judgment which is the subject of the appeal.
The Court of Appeal rejected the contention of learned Counsel for the appellants and in dismissing the appeal held inter-alia that there is neither evidence on record nor any produced to us beyond the reference to the Government Notice in the Gazette, of which we are not bound to take judicial notice.
The Appellant has herein further appealed to the Supreme Court
Whether the trial court judge had jurisdiction to deliver the judgement despite his promotion?
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. What after all, is meant by the expression “proper custody” of a document? It means no more than “its deposit with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found” and “proof of production from proper custody is required not as a ground for reading the document” (as appears from the judgement of the Court of Appeal to be in their contemplation) “but to afford the Judge reasonable assurance of it as being what it purports to be”…Had the Court of Appeal addressed its mind adequately to the issue of “proper custody” of documents it would certainly have come to the conclusion that the prerequisite of production from proper custody cannot properly apply to a Government printer’s copy of the Official Gazette and that it could not be a sine qua non to the application of the rebuttable presumption of genuineness to the Government Notice in the Official Gazette aforesaid.
ii. It is perhaps just as well to point out here that since the Notice No. 1258 in the October Gazette dealt with facts of a public nature and of which it was the intention of Government to notify the public, once the document (i.e. the October Gazette containing the said notice) was produced before a court-whether of first instance or Appellate grade then unless the contents of the notice aforesaid are irrelevant to the matter in issue that court, having the document before it, ought to take account of the same and, if need be, admit the same in evidence under sections 115 (limb A) and 112 (a) (1) of the Evidence Law.
iii. That notice states that: “…The Supreme Military Council.. do hereby appoint Mr Justice Philip Nnaemeka-Agu as a Justice of the Federal Court of Appeal with effect from the 15th day of June, 1977.” It cannot possibly admit of any argument from the italic portion of the said notice that the appointment of Nnaemeka-Agu J. as a judge of the Federal Court of Appeal was intended to and did take effect from the 15th June, 1977. One on the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the context which shows that such a course would tend to derogate from the exact meaning of the words. On the above principles on construction of written instruments, the contents of Exhibit SC (1) can have no other meaning than that the appointment of Nnaemeka-Agu J. as a Judge of the Federal Court of Appeal was intended to and did, take effect from the 15th day of June, 1977 … In the circumstances, there is no room for the view, in the face of the express language (of Exhibit SC (1)). that the appointment of Nnaemeka-Agu J. as Judge of the Federal Court of Appeal was intended to take effect at a date subsequent to the 15th June, 1977, or that as a measure of convenience the Judge was to continue to function as a High Court Judge until such time as he may conveniently function in his new office in the Federal Court of Appeal…From the foregoing observations, we are satisfied that (1) it was the intention of the Supreme Military Council-as expressed in Exhibit SC (1)- that (1) the appointment of Nnaemeka-Agu J as a Judge of the Federal Court of Appeal should, and did, take effect from the 15th June, 1977, and, (2) on that date (15th June, 1977) he ceased to be a Judge of the High Court of Anambra State, and (3) when, therefore, on the 17th day of June, 1977, he gave the judgment now on appeal he did so without jurisdiction.
Accordingly, the Court of Appeal erred in Law in rejecting the contention of the appellants that the judgment in these proceedings is null and void.
⦿ SOME PROVISIONS
S. 115 Evidence Act Cap. 62 in Volume II of the Laws of the Federation of Nigeria (1958 Edition) reads: “The court shall presume the genuiness of every document purporting to be the London Gazette or the Official Gazette of Nigeria or of a Region or the Gazette of any British Possession or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by the Queen’s Printer, and every document purporting to be a document directed by law to be kept by any person if such document is kept substantially in the form required by law and is produced from proper custody.”
S. 112 Evidence Act Cap. 62 in Volume II of the Laws of the Federation of Nigeria (1958 Edition) reads: The following public documents may be proved as follows: (a) all proclamations, Acts of State, orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or the Government of Nigeria in any Region thereof or of any local Native authority… (i) which appear in the Official Gazette of Nigeria or of a Region, by production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.”
Section 128 of the Constitution (No 20 of 1963) as amended by the Schedule to Decree No 42 of 1976: “A judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos NOT a person appointed to be a Judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos shall not enter upon the duties of his office unless he has taken or subscribed the Oath of Allegiance and such oath for the due execution of his office as may be prescribed by Parliament.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
An express provision in an instrument excludes any stipulation which would otherwise be implied with regard to the same subject matter-expressum facit cessare tacitum. – Idigbe, JSC. Obianwuna v. Okudo (1979)