Independent National Electoral Commission V. Chukwuka C. Okoronkwo (2009)
LawGlobal-Hub Lead Judgment Report
OLUKAYODE ARIWOOLA, J.C.A
This is an appeal against the judgment of the Federal High Court, sitting in Enugu, delivered on 23rd December, 2005 by Hon. Justice A.A.B. Gumel in which the Plaintiff/Respondent’s claims were granted against the Defendant/Appellant.
At the lower Court, the Respondent had claimed against the Appellant as follows:
“(i) Declaration that the purported suspension of the Plaintiff and confirmed in Defendant’s correspondence Ref. NECON/AN/P.59/90 of 13th September, 1997 from the service of the Defendant is wrongful, ultravires, null and void and of no effect whatsoever.
(ii) Declaration that plaintiff is entitled to be (sic) continue in his employment in the service of the Defendant uninhibited by the said letter of suspension.
(iii) Declaration that Plaintiff is entitled to his salary, promotion and other emoluments and benefits from 13th September, 1997, paid to the Plaintiff immediately upon the determination of the suit.
(iv) N1, 000,000.00 (One Million Naira) damages for wrongful suspension.
The gist of the case goes thus: The respondent was an employee of the Appellant since sometime in 1989 as an Administrative Officer. He served in various Local Governments of Anambra State, including Ikwo Local Government, Idemili Local Government, Ogbarn Local Government, Onitsha South Local Government, Orumba North Local Government, Oyi Local Government and Ayamelum Local Government where in 1997 January the Respondent was made the substantive Electoral Officer. He was later posted to Anambra East Local Government where he remained until he was allegedly suspended. He was promoted twice from Grade Level 8 to Grade Level 9 and from 9 to 10 in 1992 and 1996 respectively.
Sometime in January, 1997, Anambra Local Government was split into Anambra East and West Local Governments which division did not go down well with the people, and there were protests. As the election of 15/3/97 did not cover the split area, a bye election was ordered and scheduled for 31/7/97, but the election was later cancelled on the morning of the Election Day.
Subsequently, the INEC Office at Otuocha, Anambra East Local Government Council was engulfed in flames and was burnt down. The Respondent made a written report of the incident to the Appellant’s headquarters. However, on 7/8/97 and 15/8/97 he was asked to report to the headquarters to explain the fire incident. Other Staff of the Appellant were also asked to report at the Headquarters with him and they complied. He was later suspended by a letter dated 13/9/97. He was never arraigned before or convicted by any Court of Law. He is aware that the Police investigated the fire incident.
Pleadings were ordered, filed and exchanged. The case proceeded to hearing based on the following processes: Statement of Claim dated and filed 25/4/2000, undated Amended Statement of Defence filed on 16/05/2003 and Reply to Amended Statement of Defence dated and filed on 2/12/2003. The Plaintiff testified and tendered various documents while the Defendant called one witness who testified in defence. At the end of the hearing, in a considered reserved judgment, the Court granted the Plaintiff’s claims.
Dissatisfied with the decision, the Defendant on 22/2/2006 filed a Notice and Grounds of appeal dated 21/2/2006 with six (6) Grounds of Appeal which, without the particulars are as follows:
Grounds of Appeal:
- The Honourable Court erred in law when it held thus;
“I hold that when this suit was filed on 25/4/2000 it was not statute barred. I also hold that the Plaintiff has a live cause of action to enforce and this Court is fully seased (sic) of competence and jurisdiction to entertain this matter as presently constituted.”
- The Honourable Court erred in law when he purportedly delivered his judgment in the Open Court on 23rd December, 2005 some 200 days after final addresses on the grounds that the files were missing and thereby occasioned a miscarriage of justice.
- The Honourable Court erred in law when he read a judgment signed on 16th December, 2005 in the open Court on 23rd December, 2005 without notice to the Parties.
- The Honourable Court erred in law by delivering a judgment with three different dates.
- The learned trial judge erred in law when he held “I hereby hold that this action succeeds and it is hereby declared as follows:
(4) N1, 000,000.00 (One million naira) damages for wrongful suspension.
I shall not make any order for damages.”
- The learned trial judge erred in law by holding “inspite of the delay in delivering this judgment I am fully satisfied that none of the parties had suffered any miscarriage of justice.”
The Appellant undertook to file additional grounds of appeal on receipt of the record of appeal but none was later filed by it. From the Appellant’s brief of argument filed on 24th January 2008, the Appellant formulated the following two issues for determination.
Issues for Determination
- Whether the Appellant’s letter of 13/9/97 did not immediately invoke a cause of action for which the respondent should have instituted an action instantly.
- Whether the judgment of the lower court given two hundred (200) days after final addresses and containing much contradiction both in dates and content is not null and void.
The Respondent in his brief of argument of this appeal adopted the two Issues for determination as formulated by the Appellant.
On Issue NO.1, the learned Appellant’s counsel submitted that a cause of action arose for the Respondent immediately the letter of 13/9/97 from the Appellant was delivered to him. At that point, the Respondent could decide whether or not the suspension was right or wrong. Learned counsel referred to the Respondent’s claim in the Court below and submitted that the cause of action was statute barred having not been commenced within three months in accordance with Section 2(a) of the Public Officers Protection Act, Cap 379, Laws of the Federation, 1990. He submitted that a cause of action is said to be statute barred when no proceedings can be brought in respect of it for the reason that the period laid down by the law for its being brought has lapsed. He cited, Texaco Panama Inc. V. Shell Petroleum Dev. Corp. of Nigeria (2000) 4 NWLR (pt 653) 489 at 492.
Learned Appellant’s counsel contended that a period of about three years exists between the 13/9/97 when the Respondent was suspended and 25/4/2000 when he instituted the action against the Appellant. He submitted that for the purpose of limitation law, time begins to run when there is in existence a person who can sue and another who can be sued and when all facts happen which are material to be proved to entitle the Plaintiff to succeed. He cited; Mkpedem V. Udo (2000) 9 NWLR (pt 673) 631 at 645.
Learned counsel to the Appellant finally submitted on this point that the Respondent’s case ought to have been dismissed by the lower Court.
On Issue NO.1, learned Respondent’s counsel referred to the findings of the trial court at page 113 of the record of appeal and on how to determine when time begins to run for the purpose of statute of limitation, he cited; NPA Plc V. Lotus Plastics Ltd. (2006) 3 WRN 133 at 140. He submitted that the cause of action in this matter can be said to have started at anytime including the date the action was brought in view of the open ended nature of the suspension. He concluded that the cause of action started on the 25th of April, 2000 when this case was instituted.
The second issue is whether the judgment of the lower court given two hundred (200) days after final addresses of Counsel and containing much contradiction both in dates and content is not null and void. On this, learned Appellant’s counsel submitted that the judgment is null and void. Firstly, he contended that the judgment was delivered outside 90 days contrary to the clear and unambiguous provisions of Section 294(1) of the Constitution, 1999. He submitted that the judgment was a nullity and cited, Ifezue V. Mbadugha (1984) 5 SC 79.
Learned counsel referred to Section 294(5) of the Constitution but submitted that there has been a miscarriage of justice in the instant case hence subsection (1) of Section 294 is applicable. He contended that as a result of the undue delay in delivering the judgment, it was bedeviled with contradictions and inconsistencies which by themselves make the judgment a nullity and therefore brought about a miscarriage of justice.
The Appellant contended that the judgment carries on its front page, 19th July, 2005 while it was recorded to have been signed on 16th December, 2005. Furthermore, the judgment was written to have been delivered on 23rd December, 2005. Learned counsel further contended that no explanation was given in the judgment for the difference in the date the judgment was signed by the trial judge and the date it was delivered. He submitted that with the contradictions, inconsistencies and delay in the delivery of the judgment, it cannot be said that the judgment is valid, certain and decisive. He cited, Bank of the North Ltd. V. Idirisu (2000) 3 NWLR (pt 649) 373 at 389 – 390, Habib Nigeria Bank Ltd V. Opomulero (2000) 15 NWLR (pt 690) 315 at 333.
Learned appellant’s counsel finally submitted that the case of the Respondent having been statute barred is null and void abinitio.
And the judgment having been delivered outside the Constitutional period of ninety (90) days and riddled with contradictions and inconsistencies is a nullity and should not be allowed to stand. He urged the Court to allow the appeal and set aside the judgment of the lower court.
On the second issue, learned Respondent’s counsel referred copiously to the portions of the judgment appealed against and cited a few decisions of this Court in particular, on the provisions of Section 294(5) of the 1999 Constitution. He contended that the Appellant did not show in what way the late delivery of the judgment had occasioned miscarriage of justice. He submitted that the delay in the delivery of the judgment did not affect the Appellant in any way whatsoever. He finally urged the Court to dismiss the appeal and affirm the judgment of the lower court.
From the pleadings duly exchanged between parties, the oral and documentary evidence adduced, the followings facts are not in dispute having been admitted or not denied at all and therefore they need not be further proved. They are established.
The Respondent was an employee of the Appellant as an Administrative officer on Grade Level 08. Sometime in 1997 January the Respondent was made substantive Electoral Officer. While the Respondent was the Electoral Officer, the Appellant’s office under the Respondent’s control was burnt down by fire. The Respondent reported the fire incident to the Appellant in writing. The Police was later brought in to investigate the matter. The Respondent was suspended by the Appellant on 13/09/1997 and remained so until he instituted this action sometime on 25/4/2000, against the Appellant.
As shown earlier, the Appellant formulated two Issues for determination of this appeal but I wish to reframe or reformulate the said two Issues as I am entitled to do for the purpose of clarity and precision. See; Unity Bank Plc. & Anor V. Edward Bonari (2008) 2 SCM 193, Okoro V. The State (1988) 12 SC 191, Latunde & Anor. V. Belloa Lajunfin (1989) 5 SC 59, Musa Sha. Jnr. V. Da Ray Kwan &. Ors. (2000) 5 SCNJ 101.
Indeed this Court has the right to formulate issues for determination of an appeal where the issues formulated by the Counsel do not deal with the substantive issues in the appeal to ensure that justice is done in the matter. See; Yadis Nigeria Ltd. V. Great Nigerian Insurance Co. Ltd. (2007) 10 SCM 183 at 196, (2007) 30 NSCQR 495.
From the Grounds of Appeal filed by the Appellant the following issues call for determination:
(1) Whether the cause of action in this matter arose on 13/9/97 whereas the action was commenced in year 2000 thereby caught by Statute of Limitation. (Ground 1.)
(2) Whether the fact that the Judgment in the case was delivered after ninety (90) days of the conclusion of Counsel’s addresses renders it a nullity. (Grounds 2, 3, 4, 5 and 6)
Issue No.1
As clearly shown earlier in this judgment, the Respondent’s case at the lower court was against his suspension. In otherwords, he claimed declaration that his purported suspension by the Appellant, confirmed in its letter dated 13/9/1997, from its service was wrongful, ultra vires, null and void and of no effect. Therefore the lower court was to declare further that he was entitled to continue in the employment of the Appellant, and earn his salary, promotion and other emoluments from the date of the letter of suspension. He also prayed for the sum of One million naira damages for wrongful suspension.
The Respondent’s case was certainly not against prolonged or continuing suspension but definitely and specifically against suspension which took place on 13/09/97. Parties are bound by their pleadings and the court is not to grant relief not sought. See; Ezeonwu V. Onyechi (1996) 3 NWLR (Pt 438) 499 at 529.
It is note worthy that the trial court had held inter alia at page 117 of the record of appeal and in its judgment as follows:-
“I am of the view that the prolonged suspension of the Plaintiff from 13th September 1997 to date is contrary to the Civil Service Rules and therefore a violation of his agreed terms and conditions of service… I hereby grant all the 3 declarations sought by the Plaintiff in this action.”
As parties are bound, so is the court bound by the pleadings. The Supreme Court had “emphasized the importance of Courts allowing themselves only to be governed and or directed by the issues raised through the party’s pleadings.” See; Oke-Bola V. Malake (1975) 12 SC 61 at 62 per Sowemimo JSC (as he then was). Orizu V. Anyarghunam (1978) 5 SC 21 at 36, Union Bank of Nig. Plc. & 1 Or. (2007) 30 NSCQR 1 at 25 (2007) 9 SCM 113.
Suspension means the act of temporarily delaying, interrupting, or terminating something, such as suspension of business operation. It could also mean the temporary withdrawal from employment, as distinguished from permanent severance, such as suspension from teaching without pay. In otherwords, to suspend a person is to temporarily keep a person from performing a function, occupying an office, holding a job or exercising a right or privilege. See; Black’s Law Dictionary, 8th Edition, Page 1487.
From the above, it is clear that “suspension” is a complete act in itself with a definite starting point of reference liable to be challenged by any person affected by the act.
What then is a cause of action? A cause of action generally may be a situation or state of facts that entitles a party to maintain an action in a court of law. It is a group of operative facts giving rise to one or more bases for suing or commencing an action in Court. It is a factual situation that entitles one person to obtain a remedy in court from another person. See; Black’s Law Dictionary Eighth Edition Page 235. Owodunni V. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt 675) 315, (2000) 2 SCNQR 1407; Ogbimi V. Owlo (1993) 7 NWLR (Pt 304) 128, Akilu V. Fawehinmi (No.2) (1989) 2 NWLR (Pt 102) 122. Military Administrator Etiti State & Ors. V. Prince Benjamin Aladeyelu & Ors. (2007) 10 SCM 55, (2007) 30 NSCQR (pt 2) 928, (2007) 40 WRN 158.
The apex court has in several reported cases decided on “cause of action in a case. For instance in P.N. Udoh Trading Co. Ltd. V. Sunday Abere & 1 Or. (2001) 24 WRN 1 at 17, (2001) 11 NWLR (Pt 723) 114 at 129 the Supreme Court had opined on what is meant by cause of action and when it can be said to have arisen in a matter as follows:-
“What then is the cause of action and when does it arise. Cause of action has been defined by Courts to mean a combination of facts and circumstances given rise to the right to file a claim in court for a remedy. It includes all those things, which are necessary to give a right of action and every material fact, which is material to be proved to entitle the plaintiff to succeed. See; Patkum Industries Ltd. V. Niger Shoes Ltd. (1988) 5 NWLR (Pt 93) 138, Ibrahim V. Osim (1987) 4 NWLR (pt 67) 965, Bello V. A.G. Uyo State (1986) 5 NWLR (Pt 45) 828.”
See also; Popoola Elabanjo & 1 Or. V. Chief (Mrs.) Ganiat Dawodu (2006) 10-11 SCM 267; Attorney Gen. of Lagos State V. Eko Hotels Ltd. & 1 Or. (2006) 12 SCM (Pt. 1) 1 at 42 (2006) 27 NSCQR 623 at 671-672.
What then is the cause of action in the instant case? There is no doubt, it is the suspension from office of the Respondent by the Appellant, which act was effected with its letter dated 13th September, 1997. When can it then be said that the cause of action in this case accrued or arose which gave him the right to commence this action and seek the remedies he sought at the Court below? The only document to look at and consider to see whether or not there existed a cause of action and what time exactly it accrued is the Writ of Summons and Statement of Claim. This action was instituted by a Writ of Summons taken out on 25th April, 2000 and the statement of claim was filed along with the Writ of Summons on the same date. By paragraph 17 of the Statement of claim, the Respondent as Plaintiff claimed against the Defendant now appellant as follows:-
“(i) Declaration that the purported suspension of the Plaintiff and confirmed in Defendant’s correspondence Ref. NECON/AN/P59/90 of 13th September, 1997 from the service of the Defendant is wrongful, ultra vires, null and void and of no effect whatsoever.
(ii) Declaration that Plaintiff is entitled to be (sic) continue in his employment in the service of the Defendant uninhibited by the said letter of suspension.
(iii) Declaration that Plaintiff is entitled to his salary, promotion and other emoluments and benefits from 13th September, 1997 and for same to be paid to Plaintiff immediately upon the determination of the Suit.
(iv) N1, 000,000.00 (One Million Naira) damages for wrongful suspension.”
As clearly stated in the pleadings, it was his (respondent’s) suspension by the appellant that was challenged and sought to be declared a nullity. That simply means that by the service on him of the letter dated 13/09/97, a cause had arisen for the Respondent to proceed to Court to seek the remedy he later sought in this case. But the Respondent did not commence this action anytime in 1997 but sometime in year 2000.
It is note worthy that the Appellant had raised it as a preliminary objection in its pleadings, that the trial Court had no jurisdiction to entertain the Respondent’s suit, same having been caught by statute of limitation. In paragraph 26 of the Amended Statement of Defence, the Defendant/Respondent had pleaded as follows:-
“26. The defendant shall before the hearing of this suit contend by way of preliminary objection that this court has no jurisdiction to entertain this suit, the same having not been commenced within three (3) months of the suspension of the Plaintiff as demanded by the Public Officers Protection Act, cap. 379, Laws of the Federation of Nigeria, 1990 and Public Officers Special provisions Act, Cap. 381 Laws of the Federation of Nigeria 1990.”
It is on record that the Appellant’s Counsel attempted to raise the Preliminary point before the case proceeded to hearing but the learned trial Judge decline to take the point. Indeed, the trial Judge ruled as follows:-
“I am not inclined to take any preliminary objection before the trial of this matter. In my view it is better that the preliminary objection raised in paragraph 26 of the defendant’s Amended Statement of Defence to (sic) be argued and decided along with the substantive action herein. I therefore decline to exercise my discretion to take the preliminary issue before trial as provided in Order 25 Rule 2(2) of the Federal High Court Civil Procedure Rules, 2000. I order that this matter still proceed to full hearing.”
There is no doubt that with the issue of Statute of Limitation duly pleaded by the Defendant/Appellant, the jurisdiction and competence of the trial court to adjudicate on the matter had been challenged and the Court ought to have dealt with it at the earliest opportunity. Indeed, before proceeding to hearing of the substantive matter, if at all. It has long been held by the apex Court that “when a Court’s jurisdiction is challenged in a Statement of Defence, it is neater and far better for the court to settle that issue one way or another before proceeding to hearing of the case on the merits. The reason is that jurisdiction is a radical and crucial question of competence, for, if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might otherwise have been; as a defect in competence is not intrinsic, but rather extrinsic to adjudication.” See; Attorney General of Lagos State V. Dosumu (1989) 3 NWLR (Pt 111) 552 at 566 per Oputa, JSC; Madukolu & Ors V. Nkemdilim (1962) 1 All NLR Page 587 at 595, (2001) 46 WRN 1.
In Nkpen Tiza & Anor. V. Iorakepen Begha (2005) 6 SCM 164 at 177, (2005) 15 NWLR (pt 949) 616 at 638 the Supreme Court, per Musdapher, JSC had held thus:-
“Whenever a challenge is made to the competence of a Court to entertain a matter, the court should deal with that issue at the earliest opportunity and not wait till “at the end of the case.”
See also; Nnonye V. Anyiche (2005) 2 NWLR (pt 910) 623, (2005) 1 SCM 133, Alabi V. Amoo (2003) 7 SC 154, (2003) 11 SCM 25, Benedict Ojukwu V. Loiusa Chinyere Ojukwu & Anor. (2008) 12 SCM (Pt 2) 581 at 596-597.
The issue of the Respondent’s action being statute barred was again raised by the learned Counsel to the Appellant and urged the Court to strike out the action but the trial court in his judgment thought differently. At page 112 of the record of appeal in the judgment, the learned trial judge stated, inter alia as follows:-
“The issue of jurisdiction is fundamental to the question of competence of a suit and the adjudicating court. It is a very crucial issue and has been held to be the live-wire that gives life to a cause of action. It is a threshold issue that must be promptly decided one way or the other once it is properly raised. With respect to the instant case, all available evidence before this Court shows that the Plaintiff was suspended from duty till further notice since 13/9/97. He has remained suspended till date.”
The position of law is as stated above by the learned trial judge but with respect, the law was not properly applied or alluded to in the instant case by His Lordship.
It is instructive to note that the Plaintiff/Respondent’s action as stated earlier was not against “continuing suspension,” but his “suspension,” which was definite and certain to have taken place on 13/09/97 as pleaded.
Section 2(a) of the Public Officers Protection Act provides as follows:-
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –
(a) the action, prosecution shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
As earlier shown in the Respondent’s pleadings, his suspension took place on 13/9/97 while he instituted the action to challenge the suspension in April, 2000. A cause of action is said to be statute barred if it is brought at a time beyond the period of time laid down or prescribed by the statute within which such action must be filed in court. The Statement of Claim is to contain the date when the cause of action accrued while the Writ of Summons being the originating process will show when the suit was filed in Court. See; Texaco Panama Incorporation V. Shell Petroleum Development Corporation of Nigeria Ltd. (2002) 3 SCM 110 (2002) 5 NWLR (Pt 759) 209, Forestry Research Institute of Nigeria V. Enaifoghe Gold (2007) 10 SCM 32, (2007) 30 NSCQR 850.
In Fred Egbe V. Hon. Justice Adefarasin (1987) 1 NWLR (Pt 47) 1, the Supreme Court, per Oputa, JSC opined as follows:-
“A cause of action is said to be statute barred if in respect of it the proceedings cannot be brought because the period lay down by the limitation law or Act had lapsed. How does one determine the period of limitation? The answer is simply by looking at the Writ of Summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law then the action is statute barred.”
In FRIN V. Gold (supra) at page 44 of SCM, which case is in all fours with the instant case, the Supreme Court, per Mukhtar, JSC held as follows:-
“…the respondent having not brought the action within the time prescribed by the Public Officers Protection Act (supra), he was definitely statute barred from commencing the action. The High Court was bereft of jurisdiction to hear the matter, as the law governing the action has not been complied with. Once a Court has no jurisdiction to adjudicate on a matter, even where it had done so, such adjudication will be adjudged a nullity by an appellate court.”
Generally, and it is trite that where the law provides for the bringing of an action within a prescribed period of time, in respect of a cause of action accruing to the Plaintiff, proceeding shall not be brought after the time prescribed by the statute. An action brought outside the prescribed period is contrary to the provision of the law and does not give rise to a cause of action. See; Nigerian Ports Authority Plc. V. Lotus Plastic Ltd. & Anor. (2005) 12 SCM 293.
In the instant case, it is clear as earlier stated, that the Respondent failed to commence his action against the Appellant on the alleged wrongful suspension within the time prescribed. Therefore, by virtue of the provisions of the Public Officers Protection Act, (supra) the action is statute barred, robbing the lower Court of the required competence to adjudicate on the matter. In other words, the Respondent’s action having been caught by limitation of action law is statute barred and the trial Court therefore lacked competence to entertain the matter. Having entertained it, the entire proceedings including the judgment is a nullity. In FRIN V. Gold (supra) the Supreme Court held further as follows:-
“Jurisdiction is a very fundamental issue that robs on the competence of a court to hear and decide a matter. A party that submits itself to a court for adjudication of a matter for which he is seeking redress, but without cause of action, cannot clothe the court with jurisdiction to hear and determine the matter, and even if by oversight the court vests itself with jurisdiction and decides the case, an appellate Court is bound to nullify the decision.
A proceeding that emanated from a court without jurisdiction is like one that never took place at all, because the court should not have entertained the suit, for it is incompetent to do so.”
See also, Dr. Ime Sampson Umanah V. Obong (Arch) V. Attah & Ors. (2006) 27 NSCQR 706 at 734; (2006) 12 (Pt 2) SCM 487.
In the circumstance, the first Issue is accordingly resolved against the Respondent but in favour of the Appellant.
The second issue is whether the fact that the judgment of the trial Court was delivered after 90 days of the conclusion of Counsel’s addresses renders it a nullity.
It is clear from the record of appeal; in particular, at page 100, that final address of Counsel was taken on 6/6/2005. At page 101 of the record of appeal, the Court recorded the judgment as dated 16/12/2005 but read on 23/12/2005. However, on page 102 of the record, the judgment is headed “the 19th day of July, 2005” but finally signed by the trial Court Judge on 16/12/2005 at page 118 of the record.
At the conclusion of the judgment and after being duly signed, the learned trial judge went further and held as follows:-
“Court: – Judgment dated 16/12/2005 read in open court. Judgment for the Plaintiff.
Final submissions in this matter were made on 6/6/2005. Judgment is being delivered today (23/12/2005) outside the period of 90 days provided in Section 294(1) of the Constitution. The reason for the delay is because I misplaced the files in this matter. The files could not be located despite all concerted efforts until about 16 days ago.
Inspite of the delay in delivering this judgment, I am fully satisfied that none of the parties had suffered any miscarriage of justice.
SIGNED
A. A. B. GUMEL
JUDGE
23/12/2005”
(Brackets supplied)
Section 294(1) of the 1999 Constitution provides thus:-
“294(1) every court established under this Constitution shall deliver its decision in writing not later than ninety days 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 within seven days of the delivery thereof.”
From the analysis given in the judgment itself it is clear that the decision was given outside the ninety days prescribed by the Constitution. The judgment at page 102 of the record of appeal in its heading is dated 19th day of July, 2005 while the judgment is said to be signed by the trial judge on 16th December, 2005 but delivered on 23rd December, 2005. From the date the judgment was signed and the day it was said to have been read in the open Court, that is, 16/12/2005 and 23/12/2005 respectively, there is no doubt that the judgment was read outside the prescribed period a judgment was expected to be read after the conclusion of evidence and final address of Counsel. The constitutional provisions had been violated, to say the least. It has been held and rightly too, that unnecessary and inordinate delay by a Court in delivering its judgment will not only be scandalous but is inimical to the administration of justice and contravenes the principle of fair hearing as guaranteed by the Constitution of our land. See; Ariori V. Elemo (2001) 36 WRN 94, (1983) 1 SC 13, Atejioye V. Agevi (1989) 6 NLR (pt 552) 138, Bolaji Are & 1 Or. V. Aileru Saliu (2005) 37 WRN 155.
However, on the issue of failure to comply with the provisions of the Constitution on when to deliver judgment after conclusion of evidence, the Supreme Court held inter alia, as follows:-
“…if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affect the trial Judge’s perception and evidence so that it can be evidently seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fair 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.”
See; Dibiamaka V. Osakwe (1989) 3 MWLR (Pt 107) 101 per Oputa, JSC at P.114.
In otherwords, before the decision of a trial or lower Court can be set aside or treated as a nullity, on the ground of non compliance with the provisions of Section 294(1) of 1999 Constitution, it is imperative on the Appellant to establish a case of miscarriage of justice as a result of the said inordinate delay in delivering the judgment. See; Otokode & Ors. V. Ijaola & Ors. (2005) 42 WRN 82.
The Constitution in its subsection 5 of Section 294 provides that “the decision of a court shall not be set aside or treated as a nullity solely on the grounds of non compliance 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 by reason thereof.”
What then is a miscarriage of Justice? It is a grossly unfair outcome in a judicial proceeding as when a defendant is convicted despite a lack of evidence on an essential element of the crime. It is also termed “failure of justice”. See; Black’s Law Dictionary, Eighth Edition, page 1019.
Similarly, miscarriage of justice has been held to connote decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. It also means injustice done to the party alleging it. See; Alhaji R. Gbadamosi V. Olaitan Dairo (2007) 2 SCM 48 at 65; (2007) 48 WRN 1 at 23; (2007) 29 NSCQR 137 at 164, (2007) 1 SCNJ 444 at 459.
In my view, though there was an inordinate delay in delivering the judgment in this case by the trial Judge, the said delay was explained away. The case files were said to be missing at the conclusion of the trial but were only found about sixteen days to the date the judgment was delivered. It is note worthy that this reason was not challenged by the appellant who failed to show that justice in its case failed and was miscarried with the said delay in the delivery of the judgment. In otherwords, though the trial judge appeared to have been inconsistent and reckless, it was not proved, as expected, by the Appellant that a miscarriage of justice occurred as a result of the failure to deliver the judgment within ninety days required by the Constitution. This issue NO.2 is accordingly resolved against the Appellant.
In the final analysis, based on the resolution of Issue 1 in favour of the Appellant, to the effect that the case of the Respondent having been caught by Statute of Limitation which rendered the action statute barred, the trial court was rendered completely incompetent and lacked jurisdiction to entertain the claim. The case ought to have been disposed of at the earliest opportunity before the case proceeded to hearing at all, as a preliminary point. But rather unfortunately the trial court did not allow this to happen. As a result, the whole proceedings are nullity as if nothing ever happened.
In the circumstance, this appeal is allowed on the ground that the case was statute barred. The judgment of the trial Court delivered on 23rd December, 2005 by the Hon. Justice A.A.B. Gumel, (as he then was) is set aside. Accordingly, the Respondent’s case is dismissed.
There shall be no order as to costs.
Other Citations: (2009)LCN/3261(CA)
