Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandates Courts to deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. Unfortunately, not all judgments are delivered within this time frame due to one reason or the other.
Over the years, where judgment is to be given outside the stipulated time, the Courts have adopted a practice of asking parties to re-adopt their written addresses before judgment is delivered. This is in a bid to cover up for the time-lag. But how plausible or effective is this practice?
This was the issue that bedeviled the judgment leading to this extant appeal.
The Court of Appeal Per NIMPAR, J.C.A. noted that “[t]he order of the lower Court for the parties to re-adopt their addresses seems to have been directed at avoiding the consequences of non-compliance with the stipulations of Section 294(1) of the Constitution”. He went further to say that the re-adoption of addresses “does not have the consequence of re-opening the computation of the period within which judgment is to be delivered.” Explaining the rationale for this position, the Honourable Justice said “… re-adoption simpliciter without addition of any fresh points of law on which the Court needs clarification is a facade and would not serve to have the computation of time for delivery of judgment to start afresh from the date of the re-adoption.”
On the proper approach, NIMPAR, J.C.A. advised that “Trial Courts should embrace case management regime in handling cases and stop hiding behind Section 294(5) to deliver judgments after 90 days. With the new dispensation of training of judges on case management skills by the National Judicial Institute, judges should avoid the practice of recalling parties to readopt.”
The facts leading to this appeal as can be gleaned from this appeal is that the case borders on a dispute over the sale of a property situate at No. 84, Olonode Street, Alagomeji, Lagos State which belonged to Late Shadrach Bamisulu Adebulewo, now deceased. The deceased left a will that divested his interest in the house to named beneficiaries. The beneficiaries wanted to sell the property. The 8th Appellant indicated interest and negotiations went to almost completion with a deed of assignment signed and cheques for payment issued. Then, another party (the Respondent herein) indicated interest in the property, the solicitor of the 1st-7th Appellants refused to complete the arrangement with the 8th Appellant in line with instructions of the 1st-7th Appellants because he preferred the second interest-the Respondent. The solicitor later purported to conclude the sale in favour of the Respondent.
The matter went to trial, the parties adopted their written address on the 30th day of September, 2009, the trial Court delivered its judgment on the 4th of June, 2010 wherin the trial Court granted in part the claims of the Respondent who was the Claimant and dismissed the counterclaim of the defendants (now Appellants). Dissatisfied with the said decision, the Appellants filed this extant Appeal.
ISSUES FOR DETERMINATION
The issues for determination as couched by the Appellant and adopted by the Court are:
- Whether the learned trial Judge was right when she held that a document (Agreement to Assign) tendered as Exhibit SK9 which the claimant (Respondent) claimed was executed by the 1st, 2nd, 3rd and 5th Defendant and which they denied was not caught by the doctrine of lis pendens Ground 1.
- Whether the judgment of the lower Court delivered on the 4th June, 2010 0utside the 3 months prescribed under Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is a nullity, having occasioned a miscarriage of justice?
- Was the learned trial judge right when she held that the demand by the solicitor to the purchaser for the executed copies of the Deed of Assignment, original Deed of Grant and other documents after the receipt of the purchase price of the property by the solicitor to the beneficiaries was a condition precedent and this prevented the land sale transaction from crystallizing into a valid contract.
- Was the learned trial Judge right to hold that the Respondent had proved its entitlement to the property when it tendered the Agreement to Assign – Exhibit SK9.
- Was the learned trial Judge right when she dismissed the Counter Claim of the 8th Appellant. (The 9th Defendant at the lower Court)
The suit was returned to the Chief Judge Lagos State for trial de novo on the extant pleadings before another judge. An order was also made for accelerated hearing.
JUDGMENT AND ORDER – DELIVERY OF JUDGMENT: Whether an order of Court for parties to re-adopt their addresses will avoid the consequence of delivering judgment outside the time frame
“The order of the lower Court for the parties to re-adopt their addresses seems to have been directed at avoiding the consequences of non-compliance with the stipulations of Section 294(1) of the Constitution does not have the consequence of re-opening the computation of the period within which judgment is to be delivered. This is on account of the fact that re-adoption simpliciter without addition of any fresh points of law on which the Court needs clarification is a facade and would not serve to have the computation of time for delivery of judgment to start afresh from the date of the re-adoption. My learned brother OGAKWU, JCA expounded on the issue elaborately in the case of OLUWASANYA v. U.B.A. (2017) LPELR (42348) 1 at 10-12 as follows:
“Without attempting to lay down any general rules in this regard, while it may be desirable for a Court to entertain further address on an issue not covered in the original final address, in such a situation time would then run from the date of such further address, it does not seem to me permissible for a Court to simply invite counsel to re-adopt their address. such an exercise does not add any new points to the initial final address and ought to be recognized for the ploy it is, id est, avoidance of the stipulations of Section 294 (1) of the 1999 Constitution. There is a further aspect which agitates my mind in this regard, and it is on whether a Court has the vires, after the constitutional period of ninety day has elapsed, to invite parties to re-adopt their final address. While it may be permissible within the ninety days period for a Court to invite counsel for further address, not a mere re-adoption which doesn’t add any value to the initial final address, I am hesitant to accept that it would be justifiable if done after the ninety day period set out in the Constitution. After the ninety day period, the Court can only proceed to deliver its judgment when it is eventually ready, duly complying with the provisions of Section 294 (6) of the Constitution. The effect of such a judgment will of course depend on how Section 294 (5) of the Constitution affects it. Any invitation for the parties to re-adopt their final address, without more, after the ninety day period would not in my deferential view obviate the consequences of the non-compliance with Section 294 (1) of the 1999 Constitution as the computation of the ninety day period will still be reckoned from the date of the initial final address. See OKON v. ITA (2010) LPELR (9010) 1 at 15-16.
In the light of the foregoing, I hold that the period for the lower Court to deliver judgment in this matter started running from 7th December, 2009 when the final addresses of counsel was taken. The re-adoption on 17th December, 2010 which was designed to defeat the purpose of Section 294 (1) of the 1999 Constitution and relieve the Court of its duty of strictly complying with the said stipulation did not achieve the desired goal. The judgment of the lower Court delivered immediately after the purported re-adoption of address was delivered outside the period stipulated in the Constitution as the effective date for computation remained 7th December, 2009 and not 17th December, 2010.
Now, even though I have held that the said judgment was delivered outside the ninety (90) day period stipulated by the Constitution, it does not ipso facto render the judgment a nullity. For the said decision to be rendered a nullity the Appellant has to establish that the said decision occasioned a miscarriage of justice: OFULUE v. OKOH (2014) LPELR (23218) 1 at 22-23.”
I still hold the said views and I derive fortification for the said views from the decision of the Supreme Court in AWOYALE v. OGUNBIYI (1985) LPELR (661) 1 at 19-20 where NNAMANI, JSC stated as follows:
“It is of the utmost importance that if a suit set down for judgment after final address is to be reopened such that the 3 months deadline will start to run, such reopening must be for reasons which do not do violence to the decision of this Court in Sodipo’s case (SODIPO v. LEMMINKAINEN OY (1985) LPELR (3088). The reopening ought to be to enable the Court take in the interest of justice, important points relating of law and fact to the case. Such a point of law or fact may be discovered by the Court in the course of preparing its judgment and the Court may then desire further address by counsel on it, or the Court’s attention may be drawn to it. It is in my view extremely difficult to lay down a hard and fast rule as to how to determine this. It would appear to me that each case ought to be dealt with on its own merit. The spirit of Sodipo’s case would of course be violated if the reopening of the suit is done not to take further address on a point of law or fact but to achieve a prolongation of the 3 months period and so save a judgment which otherwise would have been null and void.
The point was further made succinct by my brother, GARBA, JCA, in OLUSANYA v. U.B.A. (supra) @ 46-47 thus:
“I want to emphasize that all Courts in the country, especially Courts of record established by the Constitution as custodians of the Constitution, have the primary judicial obligation and duty to comply and ensure compliance with clear and plain provision of Constitution in the discharge of their functions of adjudication in case/matter brought before them. DINGYADI v. INEC (2011) 10 NWLR (1255) 347. It is undesirable that a Court would spuriously attempt to subvert or frustrate the clear provisions of the Constitution to which it has the duty uphold and comply with. My learned brother has shown the futility of the unwitting attempt by the High Court to avoid the requirement of Section 294 (1) of the Constitution by calling the parties to ‘re-adopt’ their final addresses… Section 294 (5) of the Constitution should not be seen as a magic wand that would condone all manners of flagrant disregard of Section 294 (1) or a license for the non-chalant attitude to the compliance with the provisions.”
Trial Courts should embrace case management regime in handling cases and stop hiding behind Section 294(5) to deliver judgments after 90 days. With the new dispensation of training of judges on case management skills by the National Judicial Institute, judges should avoid the practice of recalling parties to readopt. It does not alter the fact, since no value is added. Usually at that point the judge may be in a haste to get the judgment out of the way and in so doing unconsciously distort evidence before it particularly where witnesses were taken or fail to evaluate. I have said enough.”Per NIMPAR, J.C.A. (Pp. 14-20, Paras. D-B)
Time frame within which judgment of the court must be delivered and the effect of judgment delivered outside the time frame; What is expected of a party alleging miscarriage of justice by reason of a delay in the delivery of judgment
“There is no question about the import of Section 294(1) constitutional provision. It speaks very clearly 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.”
Being a constitutional provision it is expected that it is an imperative for all Courts created by the Constitution to obey it because it cannot be heard of a Court treating a constitutional provision with levity. However, the same constitution created a leeway in Section 294(5) where it said:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision 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.”
The two provisions received judicial cases and in interpretation in a plethora of cases of DENNIS AKOMA & ANOR v. OBI OSENWOKWU & ORS (2014) LPELR-22885 held:
“The question is what is the consequence(s) of the failure of the lower Court, in the circumstances of this case, to deliver its decision within ninety days of the final addresses of counsel? The answer is that the judgment/decision/order so delivered is valid except an appellant can satisfy the Court that the non delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him.” See also OWOYEMI v. ADEKOYA (2003) 18 NWLR (Pt. 852) 307.
The essence or spirit behind the 90 days rule in Section 294(1) of the Constitution is to ensure that the decision of the Court is written and delivered when the facts of the case, the inference from the facts and the impression created by the witnesses are still fresh in the memory of the judge. A party cannot simply use the failure of the trial Court to adhere to the 90 day period to deliver judgment, as basis for seeking to nullify a judgment delivered outside the period stipulated. Such a party must proceed beyond that to show the miscarriage of justice he suffered by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate Court will find it difficult to disturb the judgment of the trial Court. The emphasis is placed not on the length of delay but on the effect the delay had on the mind of the judge while writing the judgment, see SAVANNAH BANK OF NIGERIA v. STARITE IND. OVERSEAS (2009) 8 NWLR (Pt. 1144) 491; PEOPLES DEMOCRATIC PARTY v. OKOROCHA (2012) 15 NWLR (Pt. 1323) 205; KOLAWOLE INDUSTRIES COMPANY v. ATTORNEY GENERAL, FEDERATION (2012) 14 NWLR (Pt. 1320) 221.
A trial judge normally watches the demeanor of witnesses to see how readily they answer the questions put to them, were they evasive, contradictory or vague. What was their reaction when confronted with evidence, be it documentary or oral which suggest their testimony is untrue. Evaluation of evidence follows after that and probative value is ascribed to the evidence. It was therefore in the wisdom of the framers of our Constitution that a good evaluation may not be possible after 90 days because the judge would have forgotten or lost some impression he came off with during the hearing, he is human after all. However, a situation where appreciation, perception by the Court is not affected and evaluation can still be done, that is where the hearing is basically documentary, time lapse may not have detrimental effect on the mind of the judge and the miscarriage of justice may then be difficult to establish. This is because there is hardly anything oral but if evaluation is not properly done, then miscarriage of justice could occur. See DENNIS AKOMA v. OBI OSENWOKWU & ORS (supra).
Miscarriage of justice would depend on the circumstances of the case. There can only be miscarriage of justice when the decision is inconsistent with established facts put forward by parties establishing the respective rights of the parties especially the party complaining.”Per NIMPAR, J.C.A. (Pp. 10-14, Paras. F-C)
IDOWU & ORS v. SEGUN KOYA INVESTMENTS LTD (2017) LPELR-43580(CA)