ACHALLA & ORS v. OKAFOR
(2022)LCN/15979(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/61/2019
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
1. INGOZI ACHALLA 2. EUGENE OKAFOR 3. OSITA OKAFOR APPELANT(S)
And
IFEOMA ROSEMARY OKAFOR (NEE EZEANI) RESPONDENT(S)
RATIO
THE EFFECT OF AN AMENDMENT OF COURT PROCESS
Once an amendment of Court process has been ordered, the effect is that what stood before amendment whether writ of summons or statement of claim is no longer material before the Court and no longer defines the issue in contention. In other words, where there is an amendment to pleadings the amendment takes effect not from the date of the amendment but from the date of the original document and the amended pleadings substitute the original one. Any issue outside the amended pleadings does not arise for determination. See the following cases:
Rotimi v. Macgregor (1974) 11 SC 133; Agbabiaka v. Sabiu (1998) 7 SC (Pt. 11) 180; Bioku v. Light Merchine (1986) 5 NWLR (Pt. 39) 42; Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22; Salami v. Oke (1987) 4 NWLR (Pt. 63) 1; Mobil Oil Plc v. I.A.L 36 INC (2000) 6 NWLR (Pt. 659) 146; African Continental Bank Plc v. Nwanna Trading Stores (Nig) Ltd (2007) 1 NWLR (Pt. 1016) 618. PER TALBA, J.C.A.
ABUBKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kaduna State High Court delivered on 13/11/18 in Suit No: KDH/KAD/483/2018.
The crux of this appeal is that the appellants herein as 1st, 2nd and 5th plaintiffs along with other plaintiffs (described as 3rd, 4th, 6th, 7th, 8th & 9th) jointly instituted a suit at the lower Court against the respondent as 1st defendant and the probate Registrar Kaduna State as the 2nd defendant.
The claims are for defamation, injunction and damages. Upon being served with the writ of summons, the respondent filed a conditional memorandum of appearance and a statement of defence. Subsequently, the respondent filed a preliminary objection dated 5th June, 2018 on grounds of abuse of Court process, thus alleging that the reliefs in paragraphs 14, 15, 16, 27, 28, 29, 30 and relief 33 (viii) are the same subject matter between the same parties in Suit No: KDH/KAD/334/2018. Upon being served with the said preliminary objection of the respondent, the appellant filed a motion on notice dated 13/7/2018 seeking to amend the writ of summons and statement of claim by striking out relief 33 (viii) and paragraphs 14,15,16,27, 28, 29 & 30 of the statement of claim. And to strike out six parties as plaintiffs and one party as defendant. On 18/7/2018 the lower Court heard the motion for amendment and granted same. On the same date 18/7/2018, the lower Court heard the preliminary objection after granting the motion for amendment. The preliminary objection was premised on the original writ and statement of claim. The ruling on the preliminary objection was reserved. But the ruling was not delivered until 13/11/2018, a period of 118 days after ruling was reserved on 18/07/2018. Thus outside the 90 days provided for delivery of judgment and rulings under Section 294 (1) of the Constitution of the FRN 1999 (as amended). In its ruling, the lower Court struck out the suit for being an abuse of Court process due to suit No: KDH/KAD/334/2018.
Being dissatisfied with the ruling the appellants appealed to this Court vide a notice of appeal filed on 20/11/2018. It contains three grounds of appeal.
At the hearing of the appeal on 5th of April, 2022 A. A. Iroagalachi of counsel adopted the appellants’ brief of argument filed on the 16/10/2019 and the reply brief filed on 24/09/2020. He urge the Court to allow the appeal and set aside the ruling of the lower Court. C. J. Nnaji of counsel adopted the respondent’s brief of argument filed on 10/9/2020. He urged the Court to dismiss the appeal with substantial cost.
From the three grounds of appeal the appellant distilled three issues for determination, thus;
(1) Whether the lower Court was right when on 13/11/18 118 days after argument on 17/7/2018. It went ahead to deliver the ruling in the respondent’s preliminary objection striking out the appellants’ suit contrary to Section 294 (1) & (5). And whether doing so by the Court did not occasion miscarriage of justice against the appellant.
(2) Whether the Court was right when it relied on the original writ of summons and statement of claim dated 23/4/2018 before amendment instead of the amended writ of summons and amended statement of claim dated 13/7/2018 in determining the preliminary objection of the respondent dated 5th June, 2018.
(3) Whether the Court was right to have held that the remaining reliefs in the appellants’ suit can be sought in the respondent’s suit as a counter-claim.
While submitting on the first issue the appellants’ counsel cited Section 294 (1) & (5) of the Constitution of the FRN 1999 (as amended) and he contended that there are two elements that must be established from both provisions, so as to render a judgment or ruling a nullity and liable to be set aside on appeal. One, it must be established that the said judgment or ruling was delivered later than ninety days after conclusion of evidence and final address. Secondly, it must be established that the delivery of the judgment or ruling outside the ninety days led to a miscarriage of justice against the party complaining. The learned counsel referred to page 113 of the record wherein the proceedings of 18/07/2018, the respondent’s counsel moved the preliminary objection dated 05/06/2018 and adopted the written address and urged the lower Court to grant the preliminary objection. At page 114 of the record, the appellants’ counsel moved his counter affidavit and adopted the written address. He urged the lower Court to dismiss the preliminary objection ruling was reserved and delivered on 13/11/18, which is 118 days/28 days outside the ninety days allowed by the constitution. The Constitution provides that “every Court established under this constitution shall deliver …”. The word shall is used which connotes mandatory discharge of a duty or obligation. See Tabik Investment Ltd & Anor. v. GTB Plc (2011) LPELR–3131 (SC).
Learned counsel submitted further that Section 294 (5) makes it mandatory for proof of miscarriage of justice to be established by the party complaining before the judgment/ruling delivered outside the mandatory period of ninety days could be set aside. Learned counsel relied on the case of Reynolds Construction Co. Ltd v. Odigie (2018) LPELR–44776. The Court stated thus:
“…If inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Courts perception appreciation and evaluation of evidence, such that it can easily be seen that the trial Court has lost the impression made on the Court by the witnesses then in such case there may be some fear of a possible miscarriage of justice and then but only then will an appellate Court intervene. The emphasis is not on the length of time alone but the effect it has produced in the mind of the trial Court. The burden is on the party complaining to show that he had suffered a miscarriage of justice…”
See also I.G.P v. Ubah (2015) 11 NWLR (Pt. 1471) 405. Learned counsel submitted that the lower Court completely forgot that an amendment was granted on 18/07/2018 and thereby misjudged the case using the wrong pleadings i.e the original pleadings instead of the amended pleadings. And the reason for the forgetfulness was the long period of time between the date the preliminary objection was argued on 18/07/2018 and when the ruling was delivered on 13/11/18.
In his response, the respondent’s counsel argued that the central point in determining whether to set aside judgment pursuant to Section 294 (5) of the 1999 Constitution is whether or not a reasonable person who witnesses the trial or peruses its record of proceedings would have the impression that the delay in delivering of the judgment or ruling outside the constitutional limit of 3 months has occasioned the miscarriage of justice upon the appellant. See Beks Kimse v. Mr. Abioti Africa & 1 Or (2016) 1 NWLR (Pt. 1494) 456 at 473 paras C–G; Nnajiofor v. Ukonu (1985) 2 NWLR (Pt. 9) 686; Edet Akpan v. The State (1986) 3 NWLR (Pt. 27) 25.
Learned counsel submitted that a miscarriage of justice connotes a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial right of a party. It is a failure of justice. It also means justice misplaced. See Anthony Ifu v. The State (2016) 5 NWLR (Pt. 1506) 443; Otunba Adesesan Oguntayo v. Prince Fatai Adelaja & 8 Ors. (2009) 15 NWLR (Pt. 1163) 150.
Section 294(1) & (5) of the 1999 Constitution of the FRN (as amended) provides:
“(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.
(5) 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”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
While interpreting Section 294(1), this Court in the case of Okon v. Ita (2011) ALL FWLR (569) 1209 at 1218 Para’s C-D stated thus;
“The spirit behind the ninety days period in Section 294(1) 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 mind of the judge.”
However, the delay in delivering the decision outside ninety days limitation period will not warrant an appellate Court to set aside the decision except if the party complaining has satisfied the Court that he has suffered a miscarriage of justice by reason thereof.
In this instant case, the appellant contended that due to the delay the learned trial Judge had forgotten that the writ of summons and statement of claim was amended. As a result, the learned trial Judge determined the preliminary objection based on the original writ of summons and statement of claim. I am on the same page with the appellants’ counsel that the learned trial Judge must have forgotten that the original pleading was amended. Once an amendment of Court process has been ordered, the effect is that what stood before amendment whether writ of summons or statement of claim is no longer material before the Court and no longer defines the issue in contention. In other words, where there is an amendment to pleadings the amendment takes effect not from the date of the amendment but from the date of the original document and the amended pleadings substitute the original one. Any issue outside the amended pleadings does not arise for determination. See the following cases:
Rotimi v. Macgregor (1974) 11 SC 133; Agbabiaka v. Sabiu (1998) 7 SC (Pt. 11) 180; Bioku v. Light Merchine (1986) 5 NWLR (Pt. 39) 42; Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22; Salami v. Oke (1987) 4 NWLR (Pt. 63) 1; Mobil Oil Plc v. I.A.L 36 INC (2000) 6 NWLR (Pt. 659) 146; African Continental Bank Plc v. Nwanna Trading Stores (Nig) Ltd (2007) 1 NWLR (Pt. 1016) 618.
Manifestly, therefore the appellant’s amended statement of claim took effect as from the date of the original statement of claim and it should be treated as such, the moment the lower Court granted an order for amendment. It is contrary to these laid down principle of law for the trial Court to consider the preliminary objection that was predicated on the original writ of summons and statement of claim instead of the amended pleadings.
In the case of Lawal v. Dawodu (1972) 8-9 SC 83 the Supreme Court stated thus:
“This is not the first occasion when we have to express the disapproval of this Court of such inexcusable delay in writing judgment, but it is well worth consideration by all Courts that human recollection may lose their strength with the passage of time and justice delayed is as bad as justice denied and may even under certain circumstance be worse.”
In this instant case, the delay has resulted in miscarriage of justice as provided under Section 294(5) of the Constitution of the FRN 1999 (as amended). Miscarriage of Justice in law denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure. See the case of Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. The conduct of the learned trial Judge in considering the preliminary objection that was predicated on the original pleadings is a clear departure from the rules which pervade all judicial process hence it was not in line with judicial procedure.
The Supreme Court while interpreting Section 258 of the 1979 Constitution now Section 294(1) of the 1999 Constitution, held thus:
“Section 258 of the 1979 Constitution provides that the Court should deliver judgment not later than 3 months from the close of evidence. This Section is mandatory and the expression “shall” deliver its decision in writing not later than three months after the conclusion of evidence and final address renders such decision delivered thereafter a nullity.”
The Supreme Court was more emphatic in the case of Savannah Bank of Nigeria Ltd v. Starite Industries Overseas Corporation (2009) 2-3 SC (Pt. 11) 172 where it held thus:
“It is mandatory for any Court established under the Constitution to deliver its decision in a period of not more than three months (or ninety days) after the conclusion of evidence and final address by the parties. Where a Court of law fails, neglects or refuses to deliver its decision after the adoption of final addresses by learned counsel for the respective parties which comes after the close of evidence by the parties, the Court is acting without jurisdiction and that decision will be declared a nullity by Higher Court of Appeal.”
Relying on the above established principles of law, I hold that the ruling of the trial Court delivered on 13/11/18 is liable to be set aside for being a nullity. Accordingly, the first and second issues are resolved in favour of the appellants. And having resolved the first and second issues in favour of the appellants the consideration of the third issue becomes otiose.
The ruling delivered on 13/11/2018 in Suit No: KDH/KAD/483/2018 is hereby set aside. The case is remitted to the Hon Chief Judge of Kaduna State for trial de novo before another Judge. No order as to cost. Appeal is allowed.
AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother ABUBAKAR MAHMUD TALBA, JCA. I agree with his reasoning and conclusion that the consideration and determination of the preliminary objection predating the amendment to the originating processes was an indication that the lower Court had lost track of the events; that the originating processes had been so amended the preliminary objection predicated on the amended process was no longer relevant.
Thus, the ruling delivered on the preliminary objection 118 days after the conclusion of argument thereon leading to the striking out of the Appellant’s suit occasioned miscarriage of justice and contravened Section 294 (1) of the Constitution of the Federal Republic of Nigeria (1999) as amended.
I therefore set aside the ruling as a nullity and abide by the consequential order remitting the case to the Hon. Chief Judge of Kaduna State for assignment to another Judge.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read in draft form, the judgment just read by my learned brother A. M. Talba, JCA. I agree with and adopt as mine the finding and conclusion reached by my learned brother in the lead judgment that this appeal is meritorious. I also allow same and abide by the order as to cost.
Appearances:
A. A. Iroagalachi, Esq. For Appellant(s)
C. J. Nnaji, Esq. For Respondent(s)