• Nuhu vs. Fufore Local Government Council
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  • 2004-02-09
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Nuhu vs. Fufore Local Government Council









IGNATIUS C. PATS-ACHOLONU, JSC ( Read the Lead Judgment )

SC. 96/1998


APPEAL - Decision of appellate court - Where nature of allows a party to re-litigate claim - Whether decision ceases to be final

APPEAL - Ground of appeal - Where void of clarity - Effect

CONSTITUTIONAL LAW - Constitution of the Federal Republic of Nigeria 1979 -  Section 33(3) thereof - Purport of with respect to need for court to hold proceedings in open court

CONSTITUTIONNAL LAW - Constitution of the Federal Republic of Nigeria, 1979 - Section 33(3) thereof - Whether covers proceedings of native courts

CONSTITUTIONAL LAW - Provisions of the Constitution - Whether can be construed subject to prescriptions of an inferior statute

COURT - ‘Vague expression’ - Use of - Duty of court to entertain

COURT - Native courts - Proceedings of - Whether governed by constitutional provisions

COURT - Proceedings of - Party thereto - Right of to impugn veracity of contents of court’s record

COURT - Proceedings of the court - Constitutional requirement for holding same in open court

COURT - Record of proceedings thereof - Presumption of genuineness of Whether absolute

JUDGMENT AND ORDERS - Decision of appellate court - Where nature of allows a party to re-litigate claim - Whether decision ceases to be final

JUDGMENT AND ORDERS - Final judgment - When a decision amounts to

JURISDICTION - Fundamental essence of in litigation

JURISDICTION - Objection relating to court’s jurisdiction - Whether source or mode by which raised material WORDS AND PHRASES - ‘Vague’ - Meaning of


1.             Whether the Court of Appeal should have relied on extrinsic factors or facts outside what was contained in the records before it to hold that the judgment was given in chambers.

2.             Whether the lower court should have declared the judgment of the Ilorin Upper Area Court of 23rd January, 1996 a nullity.


The respondent was the plaintiff before the Ilorin Upper Area Court in a suit in which he claimed a parcel of land from the appellant as defendant. At the conclusion of the trial, the Ilorin Upper Area Court on 23/1/96 entered judgment in favour of the appellant.

Dissatisfied by the judgment, the respondent lodged an appeal to the High Court, Kwara State. The appeal was predicated on eight grounds of appeal and was after compilation of the record of appeal fixed to 24/4/96 for hearing on which date, however, the respondent by a motion on notice prayed the court to argue an additional ground of appeal as the 9th ground of appeal alleging that the decision of the Upper Area Court, Ilorin delivered on 23/1/96 was a nullity by reason of its having been delivered in chambers or in camera. There were affidavits in support of the motion and counteraffidavits in opposition thereto. The motion was heard and granted. Thereupon, the respondent’s counsel proceeded to argue only the additional ground, a procedure vehemently objected to by the appellant’s counsel who insisted that all the grounds of appeal should be argued. The objection was overruled by the High Court in a short ruling which it concluded thus:-

“Court: There is no doubt that the issue whether the decision of the U.A.C. (Upper Area Court) is a nullity is fundamental and its decision on it (sic) is capable of disposing of the entire appeal.

It will not make sense to hear the entire appeal and only write judgment in respect of only one ground.

We would rather confine ourselves to the additional ground and consider the same one way or the other.

Mr. Akintoye, Jr. is hereby overruled and should proceed to respond to the learned SAN’s argument”.

Upon overruling the objection, the appellant’s counsel replied to the submissions of the respondent’s counsel on the additional ground of appeal after which the High Court in its judgment delivered on 16/5/96 dismissing that ground of appeal held thus:-

“By the present position we are unable to agree with the learned Senior Advocate that the challenge of a court record may be through an affidavit. Rather we are in full agreement with the submission of the learned counsel for the defendant/respondent that it will be ultra vires for the appellate court to look outside the record of proceedings of the lower court to make a decision in the absence of a challenge of the court record. It is our considered view therefore that the proceedings of the lower court on that day of its judgment is as recorded on pages 48 to 64  of the record.

For the foregoing reasons we find that this ground of appeal has no merit and it is hereby accordingly dismissed”.

In effect, what the Appellate High Court decided was that from the record of the proceedings of the Ilorin Upper Area Court in question which must be presumed to be correct there being no formal challenge of its authenticity, there was no evidence that the Ilorin Upper Area Court delivered its judgment in chambers. The High Court accordingly dismissed the additional ground of appeal but made no order with respect to the original eight grounds of appeal, which had not been argued.

Upon the foregoing, the respondent appealed to the Court of Appeal against the dismissal of the additional ground of appeal, while the appellant cross-appealed against the overruling of his objection against the procedure adopted by the respondent in arguing only the additional ground of appeal. Before the lower court, the parties by their counsel filed and exchanged their briefs of argument and after hearing the appeal, the court below dismissed the cross-appeal and allowed the appeal. Consequently, the appellant appealed to the Court of Appeal.