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COURT CANNOT TAKE JUDICIAL NOTICE OF A NULLIFIED JUDGEMENT NOT PRODUCED BEFORE IT

Dictum

Whether the record and contents of a nullified judgment ought formally be produced in court or extract thereof be placed before the court before the opinions expressed therein could be countenanced; or whether the Court of Appeal could have taken notice of their existence and contents by the mere fact that the nullified judgment was probably in the archives of the court. In Attorney-General v. Silem L.R. 10 H.L. Cas. 704, it was held that S.26 of the Queens Remembrance Act, 1859, which empowered the Barons of Exchequer to frame rules for making “the process, practice and mode of pleading” on the revenue side of the court uniform with that of the plea side, did not give the Judges the power of entertaining appeals on revenue cases, as they assumed. It is always necessary to exercise powers conferred by an enabling statute within the four comers of the statute: see Australian cases of Tavcar v. Tavcar (1950) A.L.R. 260; White v. White (1947) A.L.R. 342. It therefore appears to me that the power, conferred by S.73(1) of the Evidence Act, for a court to take judicial notice of its course of proceedings and rules of practice cannot rightly be invoked to take judicial notice of the contents of a nullified judgment, which the members had not earlier had an opportunity of seeing. For, true, it existed as a fact, being devoid of any legal consequences, it was then like any other opinion, say, in a textbook. I do not think that anybody can suggest that such a textbook opinion should be judicially noticed.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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JUDGEMENT IN REM VS JUDGEMENT IN PERSONAM

In Dike & Ors v. Nzeka II & Ors (1986) LPELR – 945 (SC), the Supreme Court held thusly – “It is therefore necessary to have a clear idea of the distinction between a judgment tin rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the Status of some particular thing or subject matter by a tribunal having the jurisdiction and the competence to pronounce on that Status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum binding on the whole world – parties as well as nonparties. A judgment in personam, on the other hand, is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter partes. A judgment in personam usually creates a personal obligation as it determines the rights of parties inter se to, or in the subject-matter in dispute whether it be land or other corporeal property or liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute.”

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JUDICIAL OFFICER WHO DID NOT HEAR A CASE CANNOT GIVE A JUDGEMENT OR JOIN IN GIVING OPINION ON IT

The genesis of what brought about the improper constitution of the tribunal when it sat and delivered a ruling on 9 September 2015, has been clearly set out in the lead reasoning. I only re-iterate the position of the law that a judicial officer of whatever jurisdiction, who did not participate in court in taking proceedings in respect of the suit/case in question, has no legal right or capacity to express an opinion in determining dispute between parties in that suit/case where he did not participate at the hearing level of the suit/case. If he does so, the decision delivered in which such a judicial officer participated is a nullity as the court/tribunal was not properly constituted. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Adeigbe v. Kushimo (1965) All NLR 260 at 263, Sokoto State Govt. v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 492 at 497; Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) at 4361. If a decision is a nullity, it cannot confer jurisdiction on same court/ tribunal or any other court or tribunal. One cannot put something on nothing and expect it to stand. It will collapse. See Macfoy v. United African Company Ltd (1961) 3 WLR 1405 at 1409, (1962) 5 SCNLR 152.

— I.T. Muhammad, JSC. Nyesom v. Peterside (SC.1002/2015 (REASONS), 12 Feb 2016)

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SOME PRINCIPLES ON THE NATURE OF A COURT’S JUDGMENT

1. A judgment or ruling of a competent court ought not to be illusory, but ought to have its consequences. One consequence of the Order of the Court of Appeal dated 13/11/85 is the restoration of Chief Ojukwu to his residence at No. 29 Queen’s Drive. The applicants by their delaying tactics have so far made that order illusory.

2. A judgment once given should be accepted as correct until the contrary is proved. This can only be done by and in an appropriate higher Court of Appeal – in this case the Supreme Court. This Court has not yet over-ruled or set aside the Order of the Court of Appeal of 13/11/85.

3. He who is in defiant disobedience of the law – here an Order of court – cannot appeal to the same law to help him continue in his disobedience.

4. The Applicants in this Motion are asking the court to exercise its discretion in their favour. The exercise of discretion is equitable and the function of equity is to supplement the law never to counteract or contradict the law.

– Oputa, JSC. Military Governor v. Ojukwu (1986) – SC.241/1985

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DURING JUDGEMENT DELIVERING, IT IS NOT NECESSARY FOR ALL PANEL MEMBERS TO BE PRESENT

Now, the Committee is a Tribunal and not a regular court. Even in a court that a Panel is constituted including the two Appellate Courts in this country, it has been held that, it is not necessary for all the Justices that heard the matter, to be present during the delivery of their judgment. Indeed, one of them can read out and deliver the judgment of the Court in the open court. (See the case of Okino v Obanabira & 4 others (1999) 12 SCNJ 27).

— Ogbuagu JSC. Ndukwe v LPDC [2007] – SC 48/2003

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JUDGEMENTS OF COURT MUST BE OBEYED

Unfortunately, sentiments command no place in judicial adjudication. Orders and judgments of lower courts are meant to be obeyed, and must be obeyed. – Eko JSC. Chemiron v. Stabilini (2018)

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WHAT IS A FINAL JUDGEMENT

A judgment of court which finally settles the rights of the parties in the subject matter of the claim in the sense that it was not given in default of a Statement of Defence is a final judgment.

– Karibi-Whyte, JSC. Afegbai v. A.G Edo State (2001)

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