“THERE is nothing in the nature of
such a mistake (i.e. of law) to exclude
it from being a proper ground for
allowing the appeal to be effective
though out of time; and whether
the matter shall be so treated must
depend upon the facts of each
individual case.”
In A.T. & E. Co. Ltd. vs. FMG
(1968) 1 All NLR 416 learned
Council argued that there was some
difference between the “opinion”
and “decision” a Court renders. In
rejecting that distinction Ademola,
C.J.N. held at page 419 to 420 as
follows:
“We now come to consider
whether the decision of the learned
Chief Justice in this matter was
final. Section 15 of the Arbitration
Act provides for the reference to the
High Court for its opinion of any
question of law arising in the course
of the reference. It is clearly not for the
Court to determine the issue or issues
between the parties for arbitration.
That is the duty of the arbitrator.
The duty of the High Court or
the Judge is to give its decision on
question or questions of law which
has or have arisen in the course of
the proceedings. The decision so
given may not be final in so far as
the arbitrator is concerned but the
particular question or questions
is or are final in so far as the High
Court or the Judge is concerned. The
Court (High Court (in answering the
question put to it has finally disposed
of the question referred to it – See the
judgment of the Privy Council in
Akintola vs. Aderemi & Anor. (1962)
1 All NLR 442 at page 474. We have
therefore come to the conclusion
that the opinion of the High Court
on the reference before it was a final
decision. It has been suggested that
what the learned Chief Justice of the
High Court gave was an opinion and
not a decision. In our view when
he said that “I hold that the learned
arbitrator was correct in the view he
held,” this means quite clearly that
he (the Chief Justice) had made up
his mind, or decided, or determined,
whichever word one chooses to use,
that the views of the arbitrator are
correct. We do not see any magic in
the word “opinion”. We observe that
decisions or judgments are called
opinions in the United States and we
cannot see the difference between
these words in the present context.For these reasons we hold the view
that the decision of the learned Chief
Justice on the particular question before
him was a final decision and that an
appeal would lie.”
Perhaps it is in the light of these
difficulties that the words “final”,
“interlocutory”, “ruling”, etc, are
omitted from the definition of
“decision” in Section 318(1) of the
Constitution but confined to Section
241(1)(a) of the Constitution.
Why these changes? Why insist on
them?
In Udoh vs. Orthopaedic Hospitals
Management (1993) 7 SCNJ (Pt.2) 436
per Karibi-Whyte, JSC held at page 443
to wit:
“It is a well settled principle of
construction of statutes that where a
section names specific things among
many other possible alternatives, the
intention is that those not named are
not intended to be included. Expressio
unius est exclusion alterius. See A-G.
of Bendel State vs. Aideyan (1989) 4
NWLR 646. This is that the express
mention of one thing in a statutory
provision automatically excludes any
other which otherwise would have
applied by implication, with regard
to the same issue – See Ogbunyiya
vs. Okuda (1979) 6-9 SC 32; Military
Governor of Ondo State vs. Adewunmi
(1988) 3 NWLR (Pt.82) 280.”
The intention of those who enacted
the Constitution is to be deciphered
from the wordings of the Constitution,
the Statute or the Rules of Practice
and Procedure as the case may be.
In Maxwell On the Interpretation of
Statutes (supra) appears the following
passage at pages 1 and 2:
“A statute has been defined in
previous editions of this work simply
as “the will of the legislature,” and
this definition, it is submitted, remains
sufficient provided that it is understood
that the will of the legislature must be
expressed either by the agreement of the
Queen and Commons in accordance
with the Parliament Acts, 1911 and
1949. Granted that a document which is
presented to it as a statute is an authentic
expression of the legislative will, the
function of a Court is to interpret that
document “according to the intent of
them that made it.” From that function
the Court may not resile: however
ambiguous or difficult of application
the words of an Act of Parliament may
be, the Court is bound to endeavour to
place some meaning upon them. In so doing it gives effect, as the judges have
repeatedly declared, to the intention of
Parliament, but it may only elicit that
intention from the actual words of the
statute. “If”, said Lord Greene M.R.,
“there is one rule of construction for
statutes and other documents, it is that
you must not imply anything in them
which is inconsistent with the words
expressly used.” If language is clear and
explicit, the Court must give effect to it.,
“for in that case the words of the statute
speak the intention of the Legislature.”
And in so doing it must bear in mind
that its function is jus dicere, not jus
dare: the words of a statute must not
be overruled by the Judges, but reform
of the law must be left in the hands of
Parliament.
This work attempts to set out the
main principles which the judges apply
in carrying out their task of construing
statutes.”
In Jurisprudence, 4th edition by
R.W.M. Dias, page 196 to 197 appears
the following passage:
“Although a case has neither been
reserved nor overruled, it may cease to
be “law” owing to changed conditions
and changed law: Cessant ratiore
cessat ipsa lex… Where a case, which is
acknowledged to have been law at the
time, has ceased to have that character
owing to altered circumstance. It is the
latter that is under consideration. If, of
course, the law-making functions of
Courts is admitted, then it would be
easy to reject out-of-date precedents
openly on the threadbare fiction that cases only reflect what always has been
law.
Willes, C.J. once said, “When the
nature of things changes, the rules of
law must change too.” This is a truism
in that the legislature and within limits,
the Courts should change rules to keep
the law abreast of change. The question
under review is whether changed
conditions may deprive a case of its
law-quality…”
See Davies vs. Powell (1737) Willes,
46, at page 51 per Willes, C.J.
I have drawn attention to the
Constitution (supra) bearing in mind
the decision in Uwaifo vs. Attorney-
General of Bendel State & Ors. (1982)
7 SC 124 where Idigbe, JSC stated at
pages 187-188 as follows:
“Finally, although side-notes or
explanatory notes to statutes are
principally to be ignored as aids to
interpretation of statutes, (See Lord
Reid in Chandler vs. Director of Public
Prosecutions (1964) AC. 763 at 789 “no
judge can be expected to treat something
which is before his eyes as though it
was not there.” In the words of Upjohn,
LJ, which I gratefully adopt and with
which I am in respectful agreement,
“while the marginal note to a section
and I would add, the side or explanatory
note to an enactment cannot control the
language used in the Section, it is at least
permissible to approach a consideration
of its general purpose and the mischief
at which it is aimed with the note in
mind” (See: Stephens vs. Cuckfield
Rural District Council (1960) 2 Q.B.
373; also Sir Rupert Cross on Statutory
Interpretation, 1st edition (1981 Reprint)
p.113; underlining, brackets and
contents therein supplied by me).”
In the determination of this appeal
I shall be guided by the provisions of
Order 4 rule 9(1)-(5) of the Court of
Appeal Rules, 2011 which reads as
follows:
“9(1) On the hearing of any
appeal, the Court may, if it thinks fit,
make any such orders as could be made
in pursuance of an application for a new
trial or to set aside a verdict, finding or
judgment of the court below.
(2) The Court shall not be bound to order a new trial on the
ground of misdirection, or of the
improper admission or rejection of
evidence, unless in the opinion of
the Court some substantial wrong
or miscarriage of justice has been
thereby occasioned.
(3) A new trial may be ordered
on any question without interfering
with the finding or decision on any
other question; and if it appears to
the Court that any such wrong or
miscarriage of justice as is mentioned
in paragraph (2) of this Rule affects
part only of the matter in controversy
or one or some only of the parties, the
Court may order a new trial as to the
party only, or as to that party or those
parties only, and give final judgment
as to the remainder.
(4) In any case where the
Court has power to order a new
trial on the ground that damages
awarded by the court below are
excessive or inadequate, the Court
may in lieu of ordering a new trial:-
(a) Substitute for the sum
awarded by the court below such
sum as appears to the court to be
proper;
(b) Reduce or increase the
sum awarded by the court below by
such amount as appears in the Court
to be proper in respect of any distinct
head of damages erroneously
included or excluded from the sum
so awarded.
But except as aforesaid, the Court
shall not have power to reduce or
increase the damages awarded by
the court below.
(5) A new trial shall not be
ordered by reason of the ruling of
any judge of the court below that a
document is sufficiently stamped or
does not require to be stamped.”
It is within the province of the Court
of Appeal, on hearing of an appeal,
to form an opinion that, “some
substantial wrong or miscarriage of
justice has been thereby occasioned”
and to order a “new trial or to set
aside a verdict, finding or judgment
of the Court below” but certainly not
on the “ground of misdirection, or of
the improper admission or rejection
of evidence” See Order 4 rules 9(1)
and (2) of the Court of Appeal Rules,
2011. If the complaints relate to
damages Order 9 rule (3)-(4) of the
Rules provides as follows:
“3. Except with the leave of
the Court, a respondent shall not be
entitled on the hearing of the appeal
to contend that the decision of the
court below should be varied upon
grounds not specified in a notice
given under this rule, to apply for any
relief not so specified or to support
the decision of the court below upon
any grounds not relied upon by that
court or specified in such a notice.
4. Any notice given by a
respondent under this Order must
be served on the appellant and on
all parties to the proceedings in the
court below who are directly affected
by the contentions of the respondent
and must be served
(a) in the case of an appeal
against an interlocutory order, within
fifteen days; and
(b) in any other case within
thirty days, after the service of the
notice of appeal on the respondent.”


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