Adepetu & Company Nigeria Ltd V. First Bank of Nigeria Plc. (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the decision of the Ondo State High Court, Ondo Division in Suit No. HOD/107/90. The Respondent, as plaintiff before the lower Court, sought for the following reliefs as set out in its 2nd further amended statement of claim They are:-

i. A DECLARATION that the defendant cannot unilaterally vary the terms of agreement existing between the plaintiff and defendant as regards the unilateral variation of rate of interest from 19.3% to 28.5% on the overdraft facilities the defendant granted to the Plaintiff.

ii. AN ORDER setting aside the unilateral and wrongful and illegal variation of the rate of interest referred to in (i) supra.

iii. A DECALARATION that the opening or Creation of Account No. 005 in the name of the plaintiff without the knowledge, consent and approval of the Plaintiff is wrongful, illegal null and void and of no effect whatsoever.

iv. AN ORDER setting aside the said account No. 005.

v. The sum of N6,427.676.00k (Six Million, Four Hundred and Twenty Seven Thousand, Six Hundred and Seventy Six Naira) as damages for loss of profit on the plaintiff’s business transactions with lIe-Oluji Cocoa Products Company Ltd., embargo placed on the Plaintiff’s account with the defendant.

VI. The sum of N918,516.60K (Nine Hundred and Eighteen Thousand, Five Hundred and Sixteen Naira, Sixty Kobo) being the loss suffered by reason of overcharged interests and unauthorized debit notes, effected by the defendant in respect of the Plaintiff’s account with the defendant.

vii. The sum of N2,228,950.00k (Two Million, Two Hundred and Twenty-eight Thousand, Nine Hundred and Fifty Naira) as general damages.

After joining issues in the pleadings the matter went through a very tortuous and prolonged trial. In a judgment delivered on 27th September, 1996, the learned trial Judge entered judgment for the Plaintiff in the sum of N3,986,724.49k (Three Million Nine Hundred and Eighty Six Thousand, Seven Hundred and Twenty Four Naira Forty Nine Kobo). The Defendant/Appellant was dissatisfied with this judgment and filed this appeal by way of a notice of appeal dated 6th November, 1996. The notice of appeal contains 5 grounds with copious particulars. The grounds, shorn of their particulars are:-

1) The entire decision is against the weight of evidence;

2) the learned trial Judge erred in law by not disposing of the Suit within a reasonable time after the commencement of the evidence of the witnesses and addresses by Counsel to the parties;

3) the learned trial Judge would have lost memory and advantage of having seen and heard the witnesses because of the considerable period of time between the hearing of the evidence and the delivery of judgment;

4) The learned trial Judge erred in law when he awarded damages for loss of anticipated profit

not strictly proved as required by law; and

5) The learned trial Judge erred in law when he held that Account No. 005 was not opened with the consent of the plaintiff/respondent when Exh. 05 contained enough facts to the contrary.

In due course, the appellant filed its appellant’s brief of argument dated 11th September, 2002 but was deemed properly filed on 19th September, 2002. This brief formulated the following 3 issues for determination in this appeal. They are:-

1) Did the failure of the learned trial Judge to deliver his judgment within 3 months after the conclusion of evidence and final addresses occasioned a miscarriage of justice;

2) Were the findings of fact and awards contained in the judgment of the lower Court, supported by the evidence before the Court; and

3) Whether it was right for the lower Court to award to the Respondent what he did not claim.

On its own part, the Respondent filed a very belated brief of argument dated 20th April, 2004 but deemed properly filed on 24th April, 2007. This brief of the Respondent adopted the 3 issues formulated by the appellant and argued them seriatim.

In arguing the 1st issue, learned Counsel to the Appellant Mr. O.A. Omonuwa, while referring to the wrong provision of the Constitution of the Federal Republic of Nigeria, submitted that the failure of the learned trial Judge to deliver his judgment within 3 months after the conclusion of evidence and addresses of respective learned Counsel to the parties was a breach of the Constitution and this has occasioned a miscarriage of justice. According to Mr. Omonuwa, evidence was concluded on 9th May, 1994 and final addresses taken on the 1st July, 1994 but judgment could not be delivered until 27th September, 1996 and no reason was given for this inordinate and protracted delay. Learned Counsel maintained that this protracted delay affected the trial judge’s perception, appreciation and evaluation of the evidence and could have lost the impression made on him by the witnesses. He added further that where a period of time dims the memory of impression of witnesses, it occasions a miscarriage justice which contravenes the fair trial provisions in the Constitution which is also capable of vitiating the whole proceedings. He referred to and relied on the following cases i.e., ATEJIOYE V. AYENI (1998) 6 NWLR (PT.552) 132 at 138 -139 F – G and 141 C-D, ARIORI V. ELEMO (1983) 1 SC 13 and MILITARY GOV. OF ONDO STATE V. AJAYI 3 NWLR (PT. 540) 27 at 46 B – D.

Learned Counsel Mr. Omonuwa quoted extensively from the judgment of the Supreme Court in ARIORI V. ELEMO (supra) as per Obaseki, ,JSC at pages 27 – 28.

While still arguing the possibility of loss of memory or impression, learned Counsel pointed out that a casual look at the judgment will show that it involved the credibility of the witnesses who testified as a result of the impression of them. He maintained that it was not possible for the learned trial Judge to recollect his impressions of the witnesses after such a prolonged lapse of time. In addition to this, learned Counsel made an attempt to illustrate the failure of the learned trial to recollect events in proper sequence and to also show that some of his findings were based on his belief of the evidence of witnesses on his impressions of them. For example he referred to the following finding of the learned trial Judge in the judgment at P. 193 of the record thus:-

“I believe the 1st PW when he said that he brought Exhibit P7 to the knowledge of DW3 before Exh. P9 was written by DW3.”

In the opinion of learned Counsel there is serious doubt in this evidence because the PW1 said he brought Exh. P7 to DW3 on 16/5/90. Learned Counsel went further to illustrate that Exh. P7 was written on the 16/5/90 at the Appellant’s Head office in Lagos and was not addressed to . PW1. Learned Counsel wondered how it was possible for PW1 to get Exh. P7 on the same day in Lagos and get it to DW3 on the same day while the same PW1 also collected a cheque from Ile-Oluji and paid same into his Account all on the same day.

In addition to this illustration, learned Counsel pointed out 3 similar ones and submitted that all the pointed out findings were made based on the belief or disbelief of a witness by the learned trial Judge upon his impressions of the witnesses and their demeanour in the witness box. Furthermore, he added that PWI concluded his evidence on the 19/7/93 while judgment was delivered over 3 years later in September, 1996. He relied on AYENI (supra) and submitted that the learned trial Judge had lost his impression of the witnesses and their demeanour in the witness box.

In another effort, learned Counsel remarked that there were misdirections by the learned trial Judge which resulted from the protracted and inordinately long delay between final addresses and the delivery of the judgment and in consequence he lost the advantage he had of seeing and forming fair impressions of the witnesses and in the evaluation of their evidence. Learned Counsel went through the judgment and pointed out 4 such areas of misdirection. He, for example, referred to page 166 of the record of appeal where the learned Judge relied on a further amended statement of claim filed on 25/3/94 when there was no such process before him. He also referred to page 165 and observed that the Plaintiff’s claim that the Defendant/Appellant unilaterally varied the rate of interest was not supported by any evidence, as a result of which Counsel to the Plaintiff/Respondent in his address informed the Court that he was abandoning it, yet the learned Judge went ahead and held that the Defendant/Appellant unilaterally varied the rate of interest from 19.5% to 28.5%.

In concluding his arguments on this issue, learned Counsel submitted that on a calm review of the entire case it will show that the learned trial Judge had completely lost his impression of the witnesses and their evidence when it took him over 2 years after final addresses to deliver his judgment thereby occasioning miscarriage of justice to the Appellant. He urged the Court to allow this appeal and nullify the judgment of the lower Court on this ground.

Because of the capacity of this issue to determine this appeal fully if considered in favour of the appellant, I wish to go into the arguments and submissions of the Respondent on it at this stage. If at the end of my decision on this issue circumstances make it necessary for me to consider and determine the remaining 2 issues, I would then proceed in earnest.

In his opening argument, learned Counsel to the Respondent Mr. Olalekan Ojo, remarked that the appellant’s complaint in the ground of appeal from which this issue was formulated is that the trial Judge failed to deliver judgment within the mandatory 3 months alter the conclusion of addresses occasioned a miscarriage of justice to it. According to learned Counsel, there a number of decided cases of the Supreme Court and this Court that appears to have settled and defined the law on this issue. He identified 4 key factors in deciding this issue. They are:-

1) A judgment will not be set aside and treated as a nullity on the ground that it was not delivered

within the constitutionally stipulated period unless the appellant can show clearly that the delay has occasioned miscarriage of justice in that it has affected the judge’s impression about the witnesses and the evaluation of the evidence on record;

2) The miscarriage of justice contemplated by the Constitution must be tangible and clear on the face of the proceedings;

3) The complainant i.e. appellant must suffer some injury and the injury must be clearly traceable to the failure of the trial Judge to deliver the decision within the statutory period; and

4) The section of the Constitution is no more a saving grace for a losing party to have a decision against him set aside.

In support of these 4 postulations, learned Counsel listed out the following decisions. They are:-

1) WALTER V. SKYLL (NIG) LTD (2001) 3 NWLR (PT.701) 438 AT 474 D.G.

2) MILITARY GOV. OF ONDO STATE V. AJAYI (1998) 3 NWLR (PT.540) 27 AT 46 B – E

3) CHUKWU V. THE STATE (1992) 1 NWLR (PT.217) 255 AT 271.

4) MIKALU V. THE STATE (2001) 5 WRN 74 AT 82 – 84.

5) YARDI V. SAIBARU (2002) FWLR (PT.18) 357 AT 377 B – D.

6) GUFWAT V. THE STATE (1994) 2 NWLR (PT.327) 435.

7) OYEGOKE V. IRIGWUNA (2002) 5 NWLR (PT.760) 417 AT 442 D – G.

Learned Counsel then went further to quote very extensively from the judgment of this Court in WALTER V. SKYLL LTD (supra) and MILITARY GOV. OF ONDO STATE V. AJAYI (supra) to underscore the duty to be discharged by an appellant who urges the Court of Appeal to declare the judgment of a trial Court as a nullity on the ground of failure to deliver judgment within the statutory period.

Learned Counsel Mr. Ojo referred to the various illustrations and submissions of learned Counsel to the Appellant and urged this court to reject same because the judgment of the lower Court was more predicated on the 25 documentary exhibits tendered and admitted in evidence rather than the oral testimonies of witnesses or their credibility. Further to this, Mr. Ojo pointed out that the issues which the learned trial Judge formulated and determined in his judgment were more or less issues of law against factual issues the resolution of which had little or nothing to do with the credibility of witnesses or the judge’s impressions of them. He then called the attention of the Court to the various issues formulated by the lower Court at page 191 of the record and how the learned trial Judge made copious references to documentary exhibits such as P.15 – P.20 as well as the expert evidence of PW3 and PW4 to resolve the various issues. In addition to this, learned Counsel went on to attack all the areas of misdirection highlighted by learned Counsel to the Appellant either because quotations were made out of context or that they were borne out of a total misconception. Upon all these he urged the Court to hold that the appellant has not reasonably established that the failure of the trial Judge to deliver judgment within 3 months after the conclusion of final addresses resulted in a miscarriage of justice as to render the judgmnt a nullity.

I have carefully considered all the foregoing arguments of respective learned Counsel together with some of the decided cases referred to. I have also taken an overview of the entire proceedings leading to the judgment of the lower Court delivered on 27th September, 1996.

We heard this appeal on 26th September, 2007 and adjourned to 27th November, 2007 for judgment. Our judgment could not be ready on 27/11/07. Respective learned Counsel to the parties were in Court on the 27th November, 2007. Having observed that judgment in this matter was not delivered within the stipulated period of 3 months as provided by the Constitution of the Federal Republic of Nigeria and having also seen that there was no explanation for the delay anywhere in the judgment itself or the record of proceedings, we called on respective learned Counsel to address the Court further on what happened during the period of over 2 years when judgment could not be delivered in this Suit. We also wanted to specifically hear from counsel what is the appropriate order to make as regards the conduct of the learned trial Judge. In addition to these, we also noted that respective learned Counsel had referred to different provisions of some Constitutions as applicable in the circumstance of this appeal. Whereas learned Counsel to the Appellant referred Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria as being the applicable law, learned Counsel to the Respondent referred to S.258(4) of the Constitution (Suspension and Modification) (Amendment) Decree No. 17 of 1985 as the applicable law.

In the course of their respective further addresses, learned Counsel stood by their respective references to different provisions of the Constitution as being applicable. We however, quickly told them that the applicable provision was section 258 of the 1979 Constitution of the Federal Republic of Nigeria, as amended by Decree 107 of 1993.

On what accounted for the delay, learned Counsel to the Appellant, Mr. Alegeh told the Court that he was not in the matter at the lower Court as he was briefed to handle the appeal only. He also said that he merely read .the judgment and prepared the grounds of appeal and settled the appellant’s brief of argument. This is merely saying or stating the obvious. It was neither here nor there. However, learned Counsel to the Respondent Mr. Ojo was quite helpful. He told the Court that he was part of the proceedings at the lower Court. He explained that the learned trial Judge could not deliver his judgment within 3 months due to an incapacitating ill-health which prevented him from sitting and which later caused his death. He is now late. He conceded that the reason for the delay in delivering the judgment was not given in the judgment. He urged the Court not to report the late trial Judge to the Chairman of the National Judicial Council pursuant to S.294 (6) of the 1999 Constitution of the Federal Republic of Nigeria.

At page 165 of the record of appeal after the conclusion of addresses on 1st July, 1994 it was recorded as follows:-

“Court: Judgment in this case is adjourn (sic) to 1-8-94. Counsel should please submit photocopies of all the legal authorities cited within two weeks from today.”

Nothing happened after that date until on 27th September, 1996, when the judgment of the lower Court was delivered and it starts from page 166 of the record.

It is not disputed that judgment was not delivered within 3 months after the final addresses of Counsel. It is conceded that judgment was delivered on 27/9/96, a period of over 2 years after the final addresses of Counsel. It is also conceded that no reason was given for the delay in delivering the judgment either in the judgment itself or the record of proceedings.

Section 258 of the Constitution of the Federal Republic of Nigeria 1979, as amended by Decree 107 of 1993, inter alia provides: –

“S. 258

1) Every Court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determine with duly authenticated copies of the decision within 7 days of the delivery thereof.

2) ……………………………………………………….

3) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of noncompliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice thereof.”

It is indeed true that the learned trial Judge, may his soul rest in perfect peace, amen, made copious references to the oral evidence of witnesses and also the documentary evidence tendered before him and admitted in evidence in arriving at his decision. It must be noted, however, that on a number of occasions he chose to believe PW1 more than DW1, DW2 or DW4. He also chose to believe PW2 and PW3 more than the defence witnesses, For example at page 194, the learned trial Judge held as follows: –

“There is the evidence of 1st PW which I accept (sic) gospel truth, he said:-

“On the receipt of Exh. 9, 1 went to see the Defendant’s Branch Manager in this (sic) office. He told me that the sum of N500.00… paid into account No. 27731 should be withdraw………….. ”

There are many other similar remarks or observations about the oral evidence of, more particularly, PW1 against DW1 and DW3. Evaluation of evidence does not stop with assessing the creditability of witnesses alone. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case. An appeal to this Court is a re-hearing which does not entail re-trying the action and taking fresh evidence. It only amounts to a rehearing on the record and the duty of the appellate Court at this stage is limited to evaluation of the evidence and drawing inferences from the primary facts.

A decision on this appeal must be based on whether, as fully established, the delay in delivering judgment has occasioned a miscarriage of justice to the appellant as to warrant declaring the judgment a nullity. In my view a decision under S.258 (3) (supra) is essentially a subjective one. I do not see how an objective assessment can be achieved as to be a proper guidance for other cases in the future. This necessarily means that every case must be decided on its facts and peculiar circumstances. This much had been recognized by Oputa, JSC in DIBIAMAKA V. OSAKWE (1989) 3 NWLR (PT.107) where it was held at pages 114-115 that:-

“Justice in our Courts is justice according to law, and the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.” This decision is a slight departure from the position of the Supreme Court in ARIORI V. ELEMO (supra) where Obaseki, JSC remarked that:

“…………A period of time which dims or loses memory of impressions of the witnesses is certainly too long and is unreasonable. Where a period of time dims or loses the memory of impressions of witnesses, it occasions a miscarriage, contravenes fair trial provisions of our Constitution and vitiates the whole proceedings.”

This case appears to me to suggest a combination of both the subjective and an objective approach using time lag as the objective variable or criterion. In the instant case, the issue of unilateral variation of interest rate from 19.5% to 28.5% was amply pleaded but no oral evidence or other admissible evidence was adduced to support the averment. Learned Counsel to the Plaintiff/Respondent appears to be fully mindful of this situation when he clearly glossed over and totally overlooked that head of claim in his final address, but yet based on what I consider the a total unawareness of the entire circumstance, the learned trial Judge, under a misconception, went ahead and awarded the sum of N918,516.00 as compensation for overcharged interest and unauthorized debt against the Defendant/Appellant.

For the foregoing reasons and those 4 areas of misapprehension of some of the key issues involved in the trial of this action, and the real possibility or probability of the learned trial Judge forgetting some of the impressions created on his mind by the witnesses, coupled with the over two year delay in delivering judgment, I am of the view that the delay has occasioned a miscarriage of justice on the appellant and therefore the judgment ought to be voided for being a nullity. I hereby accordingly hold that the judgment of late Han. Justice D.F. Babalola, of the Ondo State High Court in Suit No. HOD/107/90 delivered on 27th September, 1996 is a nullity, having been delivered over 2 years after the final addresses of counsel and in consequence of that occasioning a miscarriage of justice on the appellant. It is hereby set aside.

Having now decided issue one in favour of the appellant and the effect and consequence of that decision on the entire proceedings of the lower Court, I do not see any need to look into the remaining 2 issues for determination. I order that Suit No. HOD/107/90 shall be heard de novo, to say the obvious, by another Judge of the Ondo State High Court. In consequence of this, Suit No. HOD/107/90 is hereby remitted to the Chief Judge of the Ondo State High Court for assignment to a Judge of the Court for hearing and determination.

I order for N40,000.00 (Forty Thousand Naira) costs against the Respondent.

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Other Citations: (2008)LCN/2689(CA)