REPUBLIC vs. CENTRAL REGIONAL HOUSE OF CHIEFS JUDICIAL COMMITTEE; EX PARTE AABA [2001-2002] 1 GLR 221

CASES REFERRED TO

(1) Armah v Government of Ghana [1968] AC 192; [1966] 3 WLR 828; [1963] 3 All ER 177, HL.

(2) Edwick v Sunbury-on-Thames Urban District Council (No 2) [1962] 1 QB 229; [1961] 3 WLR 553; [1961] 3 All ER 10.

(3) Boye-Doe v Teye [2000] SCGLR 255.

(4) R v Sarpong [1959] GLR 383, CA.

(5) R v Adade [1959] GLR 365, CA.

(6) Zip Zabrama alias Walla v The Republic [1967] GLR 785, CA.

(7) Poyser and Mills’ Arbitration, Re [1964] 2 QB 467; [1963] 2 WLR 1309, [1963] 1 All ER 612. [p.226] of [2001-2002] 1 GLR 221 (8) Givaudan & Co Ltd v Minister of Housing and Local Government [1967] 1 WLR 250; [1966] 3 All ER 696; 131 JP 79.

(9) Ifezue v Mbadugha [1984] NSCC 314; [1985] LRC (Const) 114.

(10) Godka Group of Companies v P S International Ltd [1999-2000] 1 GLR 413, CA. (11) Heydon’s Case (1584) 3 Co Rep 7a.

(12) Akill & Co v White Cross Insurance Co Ltd, Court of Appeal, 26 June 1967, unreported. (13) Darke IV v Darke IX [1981] GLR 144, CA.

(14) Sandama-Nab v Asangalisa [1996-97] SCGLR 302.

(15) Attorney-General v Mutual Tontine Westminster Chambers Association Ltd (1876) 1 Ex D 469. (16) Liverpool Borough Bank v Turner (1860) 30 LJCh 379.

(17) Cullimore v Lyme Regis Corporation [1962] 1 QB 718; [1961] 3 WLR 1340; [1961] 3 All ER 1008.

(18) Howard v Bodington (1877) 2 PD 203.

(19) Kyereh v Kangah [1978] GLR 83, CA.

(20) Neizer v Wood alias Afriyie [1987-88] 2 GLR 476, CA.

(21) Lawal v Dawodu [1972] 1 All NLR (Pt 2) 270.

(22) Awoyibi & Sons v Igbalaye Bros [1965] 1 All NLR 163.

(23) Akpor v Iguoriguo [1978] 2 SC 115.

(24) MV Carolie Maersil v Nokoy Investment Ltd (2000) 7 NWLR 587.

(25) Ojokolobo v Alamu (1978) 3 NWLR (Pt 61) 377.

(26) Malkwaru v Bayola (2000) NWLR 64.

(27) Mika’ Ilu v The State (2000) 8 NWLR 469.

(28) Savannah Bank of Nigeria Ltd v Starite Industries Overseas Corp (2001) 1 NWLR 1945. (29) Rossek v African Continental Bank Ltd (1993) 10 SCNJ 20.

APPEAL by the appellants to the Supreme Court from the judgment of the Court of Appeal dismissing their appeal from the decision of the High Court dismissing their application for an order of certiorari to quash the judgment of the judicial committee of the Central Regional House of Chiefs in favour of the respondents in a chieftaincy dispute. The facts are sufficiently stated in the judgments of Kpegah and Adzoe JJSC.

Dr W C Ekow Daniels for the appellants.

[p.227] of [2001-2002] 1 GLR 221

Ebow Dawson for the respondents.

Adzoe JSC. 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 the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27) 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 on 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 23 September 1996 the judicial committee of the Central Regional 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 of the Central Region House of Chiefs 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 of the Central Regional House of Chiefs 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 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 23 September 1996 expecting hearing notices for the reasons. No notice was sent to them. Then on

[p.228] of [2001-2002] 1 GLR 221

Thursday, 10 October 1996 the Daily Graphic carried a story announcing that the judicial committee had delivered its ruling in the matter on 11 September 1996. According to the Daily Graphic, the judicial committee of the Central Regional House of Chiefs 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 23 September 1996, and adjourned for reasons to be given, it could not then be true that the committee delivered a ruling on 11 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 8 November 1996 the appellants commenced proceedings before the High Court, Cape Coast seeking an order of certiorari to quash the judgment of the judicial committee of the Central Regional House of Chiefs dated 23 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 of the Central Regional House of Chiefs to announce their decision on 23 September 1996 and reserve their reasons for another date. According to counsel, rule 11 of CI 27. if properly construed, requires the judicial committee of the Central Regional House of Chiefs to state the decision with the reasons simultaneously. He argues that the failure by the judicial committee of the Central Regional House of Chiefs to state their reasons in the judgment of 23 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 of the Central Regional House of Chiefs was not bound to announce the decision together with the reasons simultaneously, the judicial committee of the Central Regional House of Chiefs was nevertheless under an obligation to give its reasons within a reasonable period. The Court of Appeal found that the judicial

[p.229] of [2001-2002] 1 GLR 221 committee of the Central Regional House of Chiefs 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 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, 1996 (CI 16) set out the appeal procedure. Rule 6 deals with notices of appeal in a case of this kind. It provides:

“(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;…

(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.

(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

[p.230] of [2001-2002] 1 GLR 221 weight of evidence;…

(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) of CI 16 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:

“(8) Where the Court intends to rest a 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) of CI 16 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 of CI 16 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 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) of CI 16. 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 the Chieftaincy (National and Regional Houses of Chiefs) Procedure Rules, 1972 (CI 27) (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

[p.231] of [2001-2002] 1 GLR 221 resulted in a substantial miscarriage of justice and therefore rendered the judgment of 23 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 CI 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 23 September 1996 a nullity.

This breakdown 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 of the Central Regional House of Chiefs was obliged by rule 11 of CI 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 of the Central Regional House of Chiefs to announce its judgment and reserve reasons for the judgment to be stated later. According to him, the rule requires the judicial committee of the Central Regional House of Chiefs 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 justices of the High Court and the Court of Appeal that such a construction cannot be placed on rule 11 of CI 27. It appears to me that the starting point in the construction of a statutory provision is a 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, the Interpretation Act, 1960 (CA 4) 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 of CI 27

[p.232] of [2001-2002] 1 GLR 221 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, I 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 of CI 27 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 R v Governor of Brixton Prison; Ex parte Armah [1966] 3 WLR 828, HL 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

[p.233] of [2001-2002] 1 GLR 221 that the judicial committee of the Central Regional House of Chiefs 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 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 12 August 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 CI 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 of the Central Regional House of Chiefs to announce its reasons within a reasonable time resulted in a miscarriage of justice and therefore rendered the judgment of 23 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 (No 2) [1962] 1 QB 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 plaintiff’s claim was upheld. The court emphasised that it was mandatory to give the notice in good time

[p.234] of [2001-2002] 1 GLR 221 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 CI 27. That rule provides:

“28. 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 to 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 (LI 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 judicial 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 of the Central Regional House of Chiefs did indeed give reasons for the judgment announced on 23 September 1996. The reasons were delivered on 3 December 1996. In my opinion, if the reasons given on 3 December 1996 could be incorporated in the deci-

[p.235] of [2001-2002] 1 GLR 221 sion announced on 23 September 1996 those reasons would lawfully complement the decision of 23 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 8 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 23 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 III (Omanhene of Twifu-Hemang Traditional Area) and the interested party filed affidavits in reply to that affidavit of 8 November 1996 but did not deny that the case closed at least two weeks before 23 September 1996. I, therefore, take it as correct and true that the hearing before the judicial committee of the Central Regional House of Chiefs closed at least two weeks before 23 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 23 September 1996. That date will be 9 September 1996. Six weeks from 9 September 1996 will take us forward to 21 October 1996. The judicial committee therefore ought to have given the reasons on or before 21 October 1996. The judicial committee defaulted in doing so. It delayed until 3 December 1996. Before then the appellants had commenced proceedings to quash the decision of 23 September 1996. It took the judicial committee twelve weeks instead of the six weeks required by the law.

In my view, the reasons given on 3 December 1996 have no validity in law. It appears to me that after the six weeks stipulated by

[p.236] of [2001-2002] 1 GLR 221 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 Order 63, r 2A as amended by LI 1107, 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, r 24(5), (6) and (7) as amended by LI 1107 which provides as follows:

“(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 judgment.

(6) Where 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.”

The clear intendment of this rule is that the court cannot proceed with the matter after the six weeks without the Chief Justice directing that the judgment be given on or by a date fixed by him. After the six weeks 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 of the Central Regional House of Chiefs on 3 December 1996, are invalid and do not form part of the judgment of 23 September 1996. See the recent decision of this court in Boye-Doe

[p.237] of [2001-2002] 1 GLR 221 v Teye [2000] SCGLR 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 CI 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 3 December 1996 are excluded the decision of 23 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 CI 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. Article 295 of the Constitution, 1992 defines “judgment” as including “a decision, an order or decree of the court.” The Courts Act, 1993 (Act 459), in section 117 defines judgment as including “a decree, order, decision or any other finding whatsoever.”

[p.238] of [2001-2002] 1 GLR 221

The two definitions, on their faces, 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, CA, 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, s 300(2) was that after the assessors had stated their opinions:

“The Judge shall then give judgment, and in so doing shall not be bound to conform with the opinions 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 the reasons for the decision, 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 sec. 300(2) of the Criminal Procedure Code, vitiates a conviction.”

The conviction was quashed and Granville Sharp JA delivering the judgment of the court observed at 386 as follows:

“[That] reasons are necessary even in the case of a magistrate

[p.239] of [2001-2002] 1 GLR 221 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 section 173 of the Criminal Procedure Code requires a magistrate to state reasons for his decision ‘where necessary.’”

See also the cases of R v Adade [1959] GLR 365, CA and Zip Zabrama alias Walla v The Republic [1967] GLR 785, CA. 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 Government [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 23 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 3 December 1996 cannot be incorporated into the decision. The judgment therefore does not satisfy the statutory requirements of CI 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 Regional House of Chiefs dated 23 September 1996 be quashed.

[p.240] of [2001-2002] 1 GLR 221

Kpegah JSC. 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 (CI 27) and secondly, 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 (LI 1107) (hereinafter referred to as rule 2A of LI 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 CI 27 and on rule 2A of LI 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 LI 1107 to this case is accepted then any attempt on my part to forage 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 JSC.

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 the events which had brought about the need for the interpretation of rule 11 of CI 27 and rule 2A of LI 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 Regional House of Chiefs dated 23 September 1996 which was delivered in a petition filed by one Michael Conduah before the said judicial 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 9 September 1996 and the case was subsequently adjourned to 23 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

[p.241] of [2001-2002] 1 GLR 221 evidence adduced, we hold the opinion that the petitioners’ claim should be upheld. Reasons will be given later. Costs assessed at ¢300,000 is awarded against the respondents.”

However, before the reasons could be given, the respondents in the original petition (now the 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 CI 27 which provides: “The Judicial Committee shall at the conclusion of the hearing of the petition deliver its judgment, giving its reasons therefor.” Meanwhile, during the pendency of the application for the order of certiorari, which was eventually disposed off on 22 September 1997 the judicial committee gave its reasons on 3 December 1996. That is to say, twelve weeks after hearing of the petition ended on 9 September 1996.

The application, as earlier indicated, was premised on the alleged breach of rule 11 of CI 27 by the judicial committee of the Central Regional House of Chiefs which, so was urged in support, failed to incorporate its reasons in the judgment of 23 September 1996. It was argued by learned counsel for the appellants that the word “shall” as used in the said rule 11 of CI 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 CI 27. The Court of Appeal in a unanimous decision, also ruled against the appellants. The court speaking per Benin JA said:

[p.242] of [2001-2002] 1 GLR 221

“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 JA then observed that rule 11 of CI 27 does not impose any time limit within which the judicial 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 JA’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 its decisions and delay for as long as it liked, and after five or it may be ten months suddenly publish its 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 CI 27 could be invoked to set the time limit. The said rule provides:

“28. 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 to 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

[p.243] of [2001-2002] 1 GLR 221 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 CI 27 to draw attention to and invoke rule 2A of LI 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 JA 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 CI 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 CI 27 which was specifically invoked in the High Court, and rule 2A of LI 1107 which was considered alongside rule 11 of CI 27 by the Court of Appeal. The deductions which can legitimately be drawn from the dictum above are: although rule 11 of CI 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 CI 27, rule 2A of LI 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 the close of the case; ipso facto the judicial committee of the Central Regional House of Chiefs in the instant case was required to give reasons for its decision of 23 September 1996 within six

[p.244] of [2001-2002] 1 GLR 221 weeks from 9 September 1996 when the hearing of the case was concluded. This would have meant giving the reasons on or before 21 October 1996. So that for the said judicial committee to give its reasons on 3 December 1996 for a case which was concluded on 9 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 Regional 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 Regional House of Chiefs with rule 2A of LI 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 LI 1107, as stated, provides a specific time for the delivery of judgment and fixes the cut-off point at six weeks after close of a case. Before then, it had often been assumed that the delivery of judgment after close of a 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 LI 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 LI 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:

[p.245] of [2001-2002] 1 GLR 221

“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 ten weeks after judgment.”

(The emphasis is 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 September 1997 (sic) was well within the law and it is not unexceptional. Between 23 September 1997 (sic), and 3 December 1997 (sic) a period of a little more than two 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 LI 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 CI 27 to enable us apply rule 2A of LI 1107 to proceedings before a chieftaincy tribunal? and (b) what is the legal effect of non-compliance with the said rule 2A of LI 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 LI 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 LI 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

[p.246] of [2001-2002] 1 GLR 221

Laws of England (4th ed), Vol 1, para 25, p 27 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 very large number of reported cases, from which but few principles can be elicited. The normal consequence of non-compliance with the requirements 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 power on individual interests, the greater is the likelihood of 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 LI 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 a 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 v Mbadugha (1984) NCSS 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 (ie section 258(1))

[p.247] of [2001-2002] 1 GLR 221 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 section 258(1) of the Nigerian Constitution was for the declaration that the purported sale of the plaintiff’s property by the second defendant to the first defendant was null and void; an injunction restraining the defendants from interfering with the plaintiff’s right over the property. Judgment was given to the plaintiff and the first defendant appealed. The Court of Appeal concluded the hearing of counsel’s addresses on 23 March 1981 and reserved judgment which it eventually delivered on 23 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 section 258(1) of the Nigerian Constitution. It also came out that the Court of Appeal had suo motu reopened 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 “reopen” 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 section 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, SAN, appeared with leave of the Supreme Court as amicus curiae and submitted a brief of argument. Although Chief Williams 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 JSC. At page 2, para 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 requires all courts established by the Constitution to deliver their judgments within a period of three

[p.248] of [2001-2002] 1 GLR 221 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 lawmaker or to lead to injustice or absurdity or to advance rather than suppress the mischief aimed at by the law in question. If the lawmaker 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 interpret 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

[p.249] of [2001-2002] 1 GLR 221 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 JSC in his dissenting judgment appears to support this view when he, at 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 v Mbadugha (supra), Aniagolu JSC (who wrote the leading judgment for the majority) at 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 according 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, 1992 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

[p.250] of [2001-2002] 1 GLR 221 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 JSC in the case of Ifezue v Mbadugha (supra) at 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 to be put on the section, the majority of the court considered the language used in the provision and held that the subsection 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, reopen the case

[p.251] of [2001-2002] 1 GLR 221 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, I 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 criticising 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 LI 1107 was applied in the Court of Appeal case of Godka Group of Companies v P S International Ltd [1999-2000] 1 GLR 413, CA 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 (1584) 3 Co Rep 7a 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 LI 1107 to chieftaincy tribunals. Finally, whether rule 2A of LI 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.

[p.252] of [2001-2002] 1 GLR 221

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 CI 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 JA (as he then was) did point out in the case of Akill & Co v White Cross Insurance Co Ltd, 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 JA (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 LI 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 JSC meant when, in his judgment, he said “reasons are essential to give juridical efficacy to the judgments of the courts, especially in contested cases.” See Darke IV v Darke IX [1981] GLR 144, CA and Sandem v Asangalisa [1996-97] SCGLR 302 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 LI 1107 which it had identified as

[p.253] of [2001-2002] 1 GLR 221 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 LI 1107 and it’s effect on a judgment delivered outside the statutory period of six weeks.

The Court of Appeal in a previous decision in the case of Godka Group of Companies v P S International Ltd (supra) declined to place a mandatory construction on the said rule 2A of LI 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, 1992 provides that “. . . the Court of Appeal shall be bound by its own previous decision. . .” It could be that 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 Godka Group of Companies v P S International Ltd (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 (supra) case. This is because Benin JA, who wrote the judgment in this case, was a member of the court when it gave the decision in the P S International Ltd (supra) case. In Godka Group of Companies v P S International Ltd (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 LI 1107. It was agreed between the parties that the case was concluded on 25 March 1994 and the judgment was not given until on 17 May 1995. However, the court declined to set aside the judgment and held that rule 2A of LI 1107 was “purely administrative.”

The use of this phrase coupled with the rejection of the argument of counsel makes me conclude that 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 at 429:

“Counsel also urged the court to declare the judgment null and void on the grounds that it was delivered on 17 May 1995, one year after the conclusion of the trial and contrary to the provisions of Order 63, r 2A of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107). Evidence in the case closed

[p.254] of [2001-2002] 1 GLR 221 on 25 March 1994, and counsel was right that judgment was delivered one year thereafter on 17 May 1995. LI 1107 provides for ‘Time Limit for delivery of judgments’, in Order 63, r 2 as amended by the instrument. Under Order 63, r 2A (3), the court is required ‘to deliver judgment as soon as possible after the close of 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 v Mbadugha (supra) and together with a commentary on the said case in the (1983-86) 15 RGL 221 by Mr Bimpong-Buta, which was relied upon by counsel in his argument, the court said at 430:

“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 ([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 (1983-86) 15 RGL 221. The commentator suggested that the courts of this country ought to construe Order 63, r 2A of LN 140A as amended, 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 LI 1107 that even remotedly 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 at 430:

“In terms of Order 63, r 2A(6) of LN 140A as inserted by LI 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 Order 63, r 2A(7) of LN

[p.255] of [2001-2002] 1 GLR 221

140A as inserted by LI 1107, 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.

I 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 LN 140A as inserted by LI 1107 nor under the Constitution of Ghana. And indeed, litigation as it is at the present is already expensive enough. To construe the local rule 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 Godka Group of Companies v P S International Ltd (supra) appears to be the first case in which rule 2A of LI 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 Ltd (supra) case. The reasoning of the Court of Appeal has been quoted above in full.

[p.256] of [2001-2002] 1 GLR 221

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 v 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 (ibid) 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 (supra) 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 lawmaker taking into consideration the language used.

And as was pointed out by Aniagolu JSC in the Ifezue (supra) case at 324: “The object of all interpretation is to discover the intention of the lawmakers which is deducible from the language used.” (The emphasis is mine.) In construing the provisions of an enactment, whether it is a Constitution or an ordinary Act, one 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 LI 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 rules 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

[p.257] of [2001-2002] 1 GLR 221 of the words used.

This was emphasised in the case of Attorney-General v The Mutual Tontine Westminster Chambers Association Ltd (1876) 1 ExD 469 at 475-476, CA by Jessel MR when he said as follows: “. . . before considering the statute, it may be as well to say a word or two upon what I think are the 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. In the case of Liverpool Borough Bank v Turner (1860) 30 LJCh 379 at 380, Lord Campbell VC advised that: “It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.” 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 v Lyme Regis Corp [1961] 3 WLR 1340 at 1342, Edmund Davies 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 Denman J did in Caldow v 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 looked at, and I accordingly turn to consider the Act of Parliament, the Coast Protection Act, 1949, with which we are here concerned, though fortunately not with every portion of that Act of Parliament.”

(The emphasis is mine).

[p.258] of [2001-2002] 1 GLR 221

The Court of Appeal, with much respect, failed to adhere to these basic rules of construction. For example, rule 2A of LI 1107 consists of seven subrules or paragraphs but it only considered subrule (2), rather than reading the provisions as a whole, before concluding that “there is nothing in the character of LI 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 subrules (6) and (7) in isolation. This is not good enough. Even if it had read subrules (1) and (2) together, the Court of Appeal would have discovered the scheme of the law and the true intentions of the law-giver. 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 LI 1107 is very much alive in this case and we are obliged to give an interpretation which should be placed on rule 2A of LI 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 LI 1107 state:

“2A. (1) At the close of a case before it the Court shall fix a date, which shall be not 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.

(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 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 judgment.

(6) Where 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

[p.259] of [2001-2002] 1 GLR 221

(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 LI 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 v Bodington (1877) 2 PD 203 at 209, 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 it had not been complied with. Lord Penzance captured nicely in his judgment the problem which a judge is faced with in such a situation. He said at 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 all 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

[p.260] of [2001-2002] 1 GLR 221 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 LI 1107.

If, therefore, the true intention of the lawmaker embodied in rule 2A of LI 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 law-giver 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 of 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 v Bodington (supra) to look at the subject matter of rule 2A of LI 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 a judgment be given within six weeks after the close of case before a court is of such material importance to the court’s business so that the law-maker 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 LI 1107, we must have regard to the “mischief rule” as was formulated in

[p.261] of [2001-2002] 1 GLR 221 the Heydon’s Case (supra). 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.”

(The emphasis is mine.) 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 of LN 140A which deals with “Order of Business at Sittings” by the addition of rule 2A by section 7 of LI 1107 specifying “Time for the 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 LI 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 Godka Group of Companies v P S International Ltd (supra) it developed cold feet possibly because the fall-out from such a judgment

[p.262] of [2001-2002] 1 GLR 221 might have been too much to contemplate.

I have already set out in detail the provisions of rule 2A of LI 1107. Despite this, I will again set out subrules (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 subrules (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.

Subrule (1) provides: “2A.(1) At the close of a case before it the Court shall fix a date, which shall be not later than six weeks after the close of that case, for the delivery of judgment therein.” 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 subrule (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 subrule (1) is read together with subrule (2) the true intentions of the law-giver begins to crystallise and become evident. Subrule (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 subrule (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, subrule (2), just as subrule (1), also imposes a positive duty on the High Court, after close

[p.263] of [2001-2002] 1 GLR 221 of a 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 subrules are very direct, clear and unambiguous and must be given their ordinary literal meaning. The provisions of subrules (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 subrules (1) and (2) to be regarded as mandatory rather than directory or “purely administrative” as the Court of Appeal put it in Godka Group of Companies v P S International Ltd (supra).

As if to put the issue of time beyond doubt, the law-giver in subrule (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 LI 1107, like any other rule on time. Subrule (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 subrule (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 subrule (6). This is because the court loses its jurisdiction in a case six week 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

[p.264] of [2001-2002] 1 GLR 221 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. It 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 CI 27 and apply rule 2A of LI 1107 to proceedings before a regional chieftaincy tribunal. This issue is important. In determining the issue whether rule 2A of LI 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 v Kangah [1978] GLR 83 at 91, CA (full bench), Sowah JA (as he then was) delivering the majority decision said 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 processes 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.”

(The emphasis is mine.) And if the eligibility of a candidate is involved it behoves 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 v 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

[p.265] of [2001-2002] 1 GLR 221 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 v Wood alias Afriyie [1987-88] 2 GLR 476, CA provides a classic example. The plaintiff in that case sued her husband’s successor on 8 May 1973 for certain reliefs. Evidence was heard up to 5 March 1975 before Koranteng-Addow J (as he then was). He was subsequently appointed as Attorney-General 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 6 May 1985 and allowed the plaintiff’s 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 JSC at 480-481 the Court of Appeal 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 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 finding’s thereon.”

(The emphasis is mine.) 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 LI 1107 by the learned trial judge because the judge retired under the Constitution, 1979, two years after the rule came into effect and after the grace period had expired on 31 July 1979. Evidence in the case was completed on 5 March 1975.

Also in the recent case of Boye-Doe v Teye [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

[p.266] of [2001-2002] 1 GLR 221 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, 1992 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 LI 1107 received the highest judicial disregard, by default, without even a comment on what the excessive delay could have had on the judge’s 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 Nigeria Constitution, 1979. The case of Lawal v Dawodu [1972] 1 All NLR (Part 2) 270 is an example where a ground of appeal complained about the delay in delivering the judgment. Coker JSC who delivered the judgment of the court said at 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 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

[p.267] of [2001-2002] 1 GLR 221 denied and may even, under certain circumstances, be worse.”

(The emphasis is mine.) And earlier on, in the 1965 case of Awobiyi & Sons v Igbalaye Brothers [1965] 1 All NLR 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 166 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 magistrate’s 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 the 21st September, when Awokoya gave evidence, the 12th October, when the appellant gave evidence, and the 7th November, when judgement 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 we should dismiss the plaintiff’s claim or send the case back for retrial so that an express finding might be made by someone who had heard the evidence.”

(The emphasis is mine.) Again, in the case of Chief Justus Uduedo Akpor v Odhogu Iguoriguo [1978] 2 SC 115, the Supreme Court of Nigeria took the opportunity presented it in that case and stressed the importance of evaluating the evidence of witnesses before the memory of their demeanour 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, Idigo JSC asked a very pertinent question:

[p.268] of [2001-2002] 1 GLR 221

“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 the 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 LI 1107, that is the judicial committees of regional houses of chiefs.

[p.269] of [2001-2002] 1 GLR 221

Considering all that I have said so far, I hold that rule 2A of LI 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 Regional 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 23 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 LI 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 Regional House of Chiefs dated 23 September 1996.

Even though no provision exists in the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (LI 798) which is similar to rule 28 of CI 27 to make section 1(1) of the District Court 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 v 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 subsection (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.”

[p.270] of [2001-2002] 1 GLR 221

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 the close of a case, does not automatically render the decision null and void as was the case under section 258(1) of the Nigerian Constitution, 1979 as interpreted in the case of Ifezue v 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 MV Carolie Maersil v Nokoy Investment Ltd [2000] 7 NWLR 587; Lamikoro Ojokolobo v Lapade Alamu [1978] 3 NWLR (Part 61) 377; Malkwaru v Bayola [2000] NWLR 64; Aminu Mika’Ilu v The State [2000] 8 NWLR 469; Savannah Bank of Nigeria Ltd v Starite Industries Overseas Corp [2001] 1 NWLR 1945 and Victor J Rossek v African Continental Bank Ltd [1993] 10 SCNJ 20.

These are a few of the cases where the sting in the ratio of of Ifezue v 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 (supra); hence the amendments. Our situation may be different for one, possibly two reasons. The primary reason is that our rule 2A of LI 1107, unlike section 258(1) of the Nigerian Constitution, allows the judge to apply for extension of time under subrule (5) of rule 2A of LI 1107; and the parties themselves could also do the same under subrule (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 [p.271] of [2001-2002] 1 GLR 221 also. This cooperation will go a long way to enable the objectives of the lawmaker to be achieved.

Ampiah JSC. I agree.

Adjabeng JSC. I also agree.

Lamptey JSC. I also agree.

Appeal allowed.

DRKS