GREEN CIRCLE NIGERIA LIMITED & ANOR v. THE GOVERNOR OF NIGER STATE & ORS
(2019)LCN/13589(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of June, 2019
CA/A/133/2013
RATIO
JUDGMENT: PERIOD WITHIN WHICH A COURT IS TO GIVE JUDGMENT: SECTION 294(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 294 (1) of the 1999 Constitution which provides as follows:
“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 Records of Appeal, the lower Court took the final addresses of the parties on 23rd February, 2011. Thereafter, the lower Court adjourned for judgment on a date to be communicated to the parties. However judgment was not delivered and on the 26th of March 2012, the Trial Court suo motu raised the issue of Section 294 (1) of the 1999 Constitution. PER ADAMU JAURO, J.C.A.
JUDGMENT SHOUDL COME AFTER THE FINAL ADDRESS IS TAKEN BY THE COURT
In TINUBU Vs KHALIL & DIBBO TRANSPORT LTD (2000) LPELR 3249 (SC), the apex Court held that it is imperative for a judge, after taking down addresses, to sit down and write his judgment. PER ADAMU JAURO, J.C.A.
JUDGEMENT: WHAT HAPPENS WHEN THE JUDGMENT WAS NOT GIVEN AFTER THE 90 DAYS PRESCRIBED BY LAW
The question which agitates my mind in this regard is whether a Court has the vires, after the constitutional period of ninety days has elapsed, to deliver its judgment. The judgment of the Trial Court would have been delivered outside the ninety (90) day period stipulated by the Constitution. This 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. See OFULUE V OKOH (2014) LPELR (23218) 1 at 22-23.
Section 294 (5) of 1999 Constitution provides as follows:-
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 Sub-section (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. PER ADAMU JAURO, J.C.A.
COURT: DUTY OF COURT: DUTY TO ACT AND DETERMINE CASE BROUGHT BEFORE IT AND MATERIALS BROUGHT BEFORE IT ALSO
It is the inherent duty of a Court to act on the materials available before it, and determine a case brought before it. See KADIRI & ANOR Vs EWUOSO (2014) LPELR 22953 (CA). PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
1. GREEN CIRCLE NIGERIA LIMITED
2. ALH.ABDULHAMID SALIHU Appellant(s)
AND
1. THE GOVERNOR OF NIGER STATE
2. THE GOVERNMENT OF NIGER STATE
3. THE ATTORNEY GENERAL OF NIGER STATE
4. THE COMMISSIONER OF POLICE, NIGER STATE Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The Appellants herein, as Plaintiffs at the High Court of Justice of Niger State, sitting at Minna, took out an Originating Summons on the 29th of October 2009 against the Respondents as Defendants, seeking the determination of the following questions:
1. Whether having regard to the contract awarded to the 1st Plaintiff by the Niger State Government and the contract agreement executed by both parties dated 21st December 2005, the Governor of Niger State by himself or through any person(s) acting on his behalf either as a Commissioner of Inquiry or an Implementation Committee or whatever name so called, can legally enforce or determine the contract, duly executed in a manner other than as provided by the contract agreement executed by both parties dated 21st December 2005.
2. Whether the findings, recommendations and decisions of the 2nd Defendant made pursuant to the findings and recommendations of its Commission of Inquiry contained in the Niger State Gazette No.5 Vol. 12 of 4th May 2009, in respect of matters covered in the contract executed between
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the 1st Plaintiff and the 29d Defendant is not illegal, null and void.
3. Whether the Plaintiffs and the Niger State Government the 2nd Defendant, being parties to the contract agreement dated 21st December 2005, are bound by the provisions of their contract agreement.
4. Whether the findings, recommendations and decisions of the Niger State Government, made pursuant to the Commission of Inquiry constituted by the 1st Defendant and contained in Niger State Gazette No.5 Vol. 12 of 4th May 2009, in respect of a duly executed contract agreement dated 21st December 2005, is not unconstitutional, illegal, null and void.
5. Whether, in particular, the findings, recommendations and decisions of the Niger State Government in its Gazette No.5 Vol. 12 of 4th May 2009, to the effect that the 2nd Plaintiffs is to be banned from holding Public Office for 10 years constitutes a determination of the 2nd Plaintiff’s civil rights and obligations as provided under Section 36 of the CFRN 1999.
6. Whether the 4th Defendant, acting for and on behalf of Niger State Government as member of White Paper Implementation Committee or in whatever name called, can serve
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as a Debt Collector for Niger State Government in respect of a duly executed contract agreement dated 21st December 2005, between the Niger State Government and the Plaintiffs.
7. Whether in view of the Summons to Witness under Section 8 of the Commission of Inquiry CAP 27 Laws of Niger State of Nigeria, 1999 issued to the 2nd Plaintiff to give evidence respecting such Inquiry, by the Commission of Inquiry constituted by the 1st Defendant, the findings, recommendations and decisions of the Government of Niger State contained in the Gazette No.5 Vol. 12 of 4th May 2009 in respect thereof, the 2nd Plaintiff is banned from holding Public Office for 10 years, amounted to conviction, punishment or penal sanction against the 2nd Plaintiff, who was only summoned as witness and is therefore, in gross violation of his constitutionally guaranteed right to fair hearing.
8. Whether the decision of the Niger State Government contained in its Gazette No.5 Vol. 12 of 4th May 2009 to the effect that the 2nd Plaintiff be banned from holding Public Office amounted to conviction, punishment or penal sanction against the 2nd Plaintiff as an offender or wrong doer and
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therefore unconstitutional, null and void, when as a person penalized, convicted or sanctioned, he cannot, in the circumstances exercise his constitutionally guaranteed right of appeal against such conviction, punishment or penal sanction to any superior Court.
If the answers to the above questions are in favour of the Appellants, the Appellants therefore sought the following reliefs:
a. A Declaration that the Government of Niger State and the Plaintiffs being parties to the contract agreement dated 21st December 2005, are bound by the terms of the agreement and they cannot withdraw from the said agreement without following the terms agreed upon.
b. A Declaration that the findings, recommendations and the decisions of the Niger State Government contained in Gazette No.5 Vol. 12 of 4th May 2009 in respect of the Plaintiffs contract agreement with the Niger State Government of 21st December 2005 is illegal, null and void and of no effect.
c. A Declaration that the 4th Defendant, being the Commissioner of Police of Niger State, cannot legally serve as a Debt Collector for and on behalf of the Niger State Government, either as an Implementation
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Committee or under whatever name so called, and cannot order the arrest and or detention of the 2nd Plaintiff on the issue of contract agreement dated 21st December 2005 contained in Gazette No.5 Vol. 12 of 4th May 2009.
d. A Declaration that the findings, recommendations and decisions of the Niger State Government in Gazette No.5 Vol. 12 of 4th May 2009, banning the 2nd Plaintiff from holding Public Office for 10 years is a determination of his civil rights and obligations as provided under Section 36 of the CFRN 1999 as such ultra vires the 1st and lid Defendants and unconstitutional, null and void.
e. A Declaration that the findings, recommendations and decisions of the Niger State Government in Gazette No.5 Vol. 12 of 4th May 2009 banning the 2nd Plaintiff from holding Public Office for 10 years amounted to punishment, conviction or penal sanction against the lid Plaintiff as an offender or wrong doer who cannot exercise his constitutional right of appeal to any superior Court against such punishment or penal sanction, which is a violation of the 3rd Plaintiff’s right under the CFRN 1999.
f. AN ORDER setting aside the Niger State Gazette No.5 Vol. 12 of 4th May 2009
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issued by the 1st Defendant containing the recommendation and decisions of the 2nd Defendant as being unconstitutional, illegal, null and void.
Alternatively, an order declaring as unconstitutional, illegal, null and void the aspect of the Niger State Gazette No.5 Vol. 12 of 4th May 2009 containing the findings, recommendations and decisions of the 2nd Defendant on the 2nd Plaintiff.
g. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, jointly and severally, whether acting by themselves or through their official, servants, agents or privies whosoever and howsoever, from carrying out the assignment or functions conferred under the Niger State Gazette No.5 Vol. 12 of 4th May 2009 or under any other Legal Instrument issued by the ft Defendant to carry out the contents of the Gazette No.5 Vol. 12 of 4th May 2009 as it affects the Plaintiffs.
h. AND such further or other order or orders as this Honourable Court may deem fit to make in the circumstance of this case.
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The summons is supported by an affidavit of 15 paragraphs deposed to by one Sunday Bulus, a Litigation Secretary in the Law Firm of the
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Appellant’s Solicitors, to which were attached some exhibits. The case of the Appellants is that they were awarded contract for the supply of Three Water Buses via the 2nd Respondent’s Tenders Board letter dated 19th October 2005, and consequent upon which the 2nd Respondent entered into and executed a Contract Agreement with the 1st Appellant dated 21st December 2005, which contract agreement the 2nd Appellant signed and executed on behalf of the 1st Appellant.
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It is their story that after the assumption of office of the 1st Respondent in May 2007, he constituted a Commission of Inquiry, to determine Malpractices Relating to the Awards of Contracts, payments made for jobs not executed and the Recovery of such payments etc, between May 1999 to May 29th 2007, and that the 2nd Appellant was issued a Witness Summons to testify before the Commission in respect of the supply of three Water Buses awarded to the 1st Appellant. They maintained that following the findings, recommendations and decisions of the Commission of Inquiry, it was recommended that the 2nd Appellant was to refund the sum of N21,275,000.00 (Twenty One Million, Two Hundred
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and Seventy Five Thousand Naira) only, representing the cost of two water buses yet to be supplied and in addition, that the 2nd Appellant was to be prosecuted in the event of failure to refund. It was also recommended that the 2nd Appellant was to be banned from holding public office for 10 years. The 2nd Respondent accepted the said recommendations and same was gazetted in the Niger State Gazette No 5 Vol. 12 of 14th May 2009, and consequent upon which Police Officers from the office of the 4th Respondent severally visited the house of the 2nd Appellant, in a bid to arrest him, hence the initiation of the suit giving rise to this appeal at the Trial Court, and the reliefs sought.
Upon being served with the Originating Summons, the Respondents filed their counter affidavit in defence. Written addresses were also filed and were adopted on the 23rd of February 2011, in support of their respective views. Before judgment could be delivered, the trial Judge was seconded on a National Assignment which spanned a period of over a year. Upon his return, and on the 26th of March 2012, when the matter was fixed for judgment, the Trial Court raised suo motu, raised
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the question of whether or not, having regard to the provisions of Section 294(1) of the 1999 Constitution, the Court can still validly deliver its judgment on the suit, and asked Counsel to address it on same.
Parties filed and adopted their written addresses in respect thereof, and in its Ruling delivered on the 2nd of July 2012, the Trial Court held that having regard to the provisions of Section 294(1) of the 1999 Constitution as amended, it cannot now deliver its judgment on the case.
It is against this decision that the Appellants herein have appealed to this Court, vide their Notice of Appeal filed on the 16th of July 2012. The said notice appeal which appears on pages 311 ? 312 of the printed record is upon a sole ground.
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The Record of Appeal was compiled and transmitted to this Court on the
