AFRICAN CONTINENTAL BANK LTD. & ANOR. v. IFEANYI AJUGWO (2011)

AFRICAN CONTINENTAL BANK LTD. & ANOR. v. IFEANYI AJUGWO

(2011)LCN/4670(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of July, 2011

CA/E/66/2006

RATIO

NOVATION: MEANING OF NOVATION

Now novation is described in Blacks Law Dictionary 6th Edition at page 1064 as:- “A type of substituted contract that has the effect of adding a party, either as obligor or obligee, who was not a party to the original duty. Substitution of a new contract, debt or obligation for an existing one, between the same on different parties.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

NOVATION: TYPES OF NOVATION IN CONTRACT

DUTY OF COURT: WHETHER EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE ARE THE EXCLUSIVE PRESERVE OF THE TRIAL COURT ; CIRCUMSTANCE WHEN AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF A TRIAL COURT

It is a trite procedural tenet that the evaluation of evidence and ascription of probative value to such evidence are the exclusive preserve of the trial court which had the opportunity of hearing and assessing the testimony and conduct of the witnesses. It is unusual for an appellate court to disturb such findings of a trial court except where it is found to be perverse irrational or does not accord with common sense. See DARE VS FAGBAMILA (2009) 14 NWLR (PT 1160) 177; SULE VS HABU (2011) 7 NWLR (PT 1246) 339 and KARIBO VS GREND (1992) 3 NWLR (PT 230) 426. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

POWER OF COURT: WHETHER COURTS HAVE THE POWER TO GRANT A RELIEF NOT CLAIMED BY A PARTY

It is trite that courts have no power to grant a relief not claimed by a party. The authorities cited by Learned Senior counsel for the appellant are quite exhaustive on this principle of law. See also the case of DUMEZ (NIG) LTD VS NWAKAOBA & ORS. (2009) 12 S.C.M. (PT 2) 504 at 517 – 518 where the Supreme Court held that:- “It is both fundamental and elementary principle in the determination of actions before a court or tribunal, that the adjudicating body is bound to limit itself to the claims before it. A court may indeed make incidental orders which flow naturally from the relief claimed. However a court has no power and is not under any circumstances entitled to award a relief not claimed by the party in the writ of summons and the statement of claim.” See also OSUJI VS EKEOCHA (2009) 16 NWLR (PT 1166) 81; CHIME VS ONYIA (2009) 2 NWLR (PT 1124) 1 and BUWANHOT VS. BUWANHOT (2009) 16 NWLR (PT 1186) 22. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 294(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS TO WHETHER A DECISION DELIVERED OUTSIDE THE STIPULATED TIME WILL BE RENDERED A NULLITY

Section 294(1) of the 1999 constitution of the Federal Republic of Nigeria provides as follows:- “Every court established under this constitution shall deliver it’s decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined, with duly authenticated copies of the decision within seven days of the delivery thereof.” Section 294 (5) of the same constitution goes further to provide thus:- “The decision of a court shall not be set aside or treated as a nullity on the ground of non-compliance with the provisions of subsection (1) 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.” It seems to me of necessity to stress the obvious that although courts are expected to deliver their decision within 90 days after final addresses, where the stipulated time is however not complied with either due to force majeure, inadvertence or neglect, such decision will not be rendered a nullity, unless and until the appellate court seized of the complaint or appeal is satisfied that such late delivery of judgment has occasioned miscarriage of justice. This to my mind is the true import of the provisions of Section 294(1) and (5) of the 1999 constitution aforementioned. See also the decisions in ATUNGWU VS OCHEKWU (2004) 17 NWLR (PT 901) 18; IGWE VS KALU (2002) 5 NWLR (PT 761) 678 and OLOKOTINTIN VS SARUMT (1997) 1 NWLR (PT 480) 222 AT 232. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF SECTION 34 (1) OF THE EVIDENCE ACT AS IT REGARDS ADMISSIBILITY OF EVIDENCE GIVEN IN A PREVIOUS JUDICIAL PROCEEDING, IN A SUBSEQUENT JUDICIAL PROCEEDING OR IN A LATER STAGE OF THE SAME PROCEEDING

JUSTICES:

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

AFRICAN CONTINENTAL BANK LTD. & ANOR. – Appellant(s)

AND

IFEANYI AJUGWO – Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court, Onitsha, Anambra State delivered by Hon. Justice P.A.C. Obidigwe on 3/6/2004 in Consolidated Suit Nos. O/118/90 and O/123/90 wherein he dismissed the claim in Suit N0. O/123/90 and granted the reliefs as prayed in Suit No. O/1818/90.
The plaintiff Ifeanyi Ajugwo, in the lower court in Suit NO. O/118/90 was substituted for his deceased father, Jerome B.C. Ajugwo. He is now the 1st Respondent in this appeal. His father Jerome Ajugwo was a current account customer with the 1st defendant (now the appellant) in her Onitsha branch. One S.B.C. Maduakolam, carrying on business under the name and style of Maduakolam and company was a friend of Respondent’s father. He also had a current account with the appellant. He borrowed money from the appellant and the Respondent’s father guaranteed the loan/overdraft and in the process mortgaged his landed property at Plot 8, Block 34 Nupe Settlement, otherwise known as N0. 2 Anambra Street Fegge, Onitsha and handed the documents of title, namely a Building lease and Assignment of lease to the Appellant and the transaction was evidenced by a Deed of legal Mortgage showing that the appellant will lend the sum of N15,000 to S.B.C. Maduakolam as the Borrower while the Respondent’s father was the mortgagor who guaranteed the loan. Subsequently S.B.C. Maduakolam moved to Owerri and opened another account with the appellant’s branch there. The appellant later merged his account in Onitsha with that in Owerri branch. The Respondents father then applied to the appellant for the Demerger of the accounts and stoppage of further interest accruing on the loan account to enable him pay off the loan he guaranteed and recover his title documents. His request was granted by the 1st appellant upon certain conditions which he readily agreed to in writing. While he was making payments as agreed, the 1st appellant instructed an auctioneer to sell the mortgaged property and this was eventually done in spite of his efforts to show that he did not default in repayment of the loan within the time frame given by the 1st appellant. Consequently, he instituted Suit No. O/118/90 against the appellant at the Onitsha High Court wherein he claimed in the further amended statement of claim as follows:-
(a) A declaration that the plaintiff is entitled to the return of his father’s documents in respect of his landed property at No. 2 Anambra Street, Fegge Onitsha which said documents as herein above mentioned are dated the 4th of May 1973; and 27th August,1974.
(b) An order of court that the said documents be returned to the plaintiff forthwith.
(c) N500,000 (five hundred thousand naira) for breach of warranty and/or assurance for failure to return the said documents in respect of the said overdraft facilities heretofore mentioned which had been repaid.
25. Whereof the plaintiff claim in the alternative N100,000,000 (One hundred million naira) for his documents in respect of the landed property at N0. 2, Anambra Street, Fegge, Onisha, which documents the defendants are withholding.
In Suit N0. O/123/90 the plaintiff (Sydney Obi) who bought the auctioned property, claimed as follows:-
(a) Possession of the said leasehold property together with the building erected thereon known as and called Plot 8, Block 34, Nupe Settlement, otherwise called No. 2 Anambra Street, Fegge Onitsha.
(b) N5,000 (five thousand naira) general damages for defendants trespass on the said building and premises.
(c) Injunction restraining the defendant, his servants and/or agents from remaining on or continuing in occupation of the said plot and building erected thereon.
At the hearing of the two suits which where duly consolidated, each of the parties gave evidence and called no witness except for the 2nd defendant (Mr. P. A. Otugo) who neither appeared in court nor gave evidence.
At the conclusion of hearing, or 6/2/04 the learned trial judge in his judgment delivered on 3/6/04 dismissed the claimed in Suit No. O/123/90 but granted the plaintiffs (now respondent) claim in suit N0. O/118/90.
Being dissatisfied with the said judgment in O/118/90, the appellants filed a Notice of appeal containing seven grounds. In compliance with the Rules of this court, briefs of argument were subsequently filed and served. The appellant’s amended brief of argument dated 31/7/2009 and filed on 7/9/2009 was settled by Chief Chidube Ezebilo (SAN).
The Respondents amended brief of argument dated 30/11/2009 and filed on 1/12/2009 was settled by C.O. Anah (SAN).
At the hearing of the appeal on 6/4/2011 counsel for both parties adopted and relied on their briefs of argument.
In the appellants amended brief of argument 5 issues were distilled for determination as follows:-
(1) Whether it was right for the learned trial judge to hold in his judgment that under the law of novation or variation that Exhibit C. has varied or substituted exhibit J. the legal mortgage and subsequently rendered the provision of Exhibit J inoperative and inapplicable in this case.
(2) Whether it was right for the trial court to declare null and void and of no effect the sale of the mortgage property by the defendant bank mortgagee in Suit No. O/118/90 when such declaration was not even sought for by the plaintiff in his relief either in his writ of summons or statement of claim.
(3) Whether it was right for the trial judge to have delivered his judgment in this case outside the statutory period of 90 days (three months) after the conclusion of evidence and final addresses of counsel in the case contrary to Section 294 (1) of the 1999 constitution of the Federal Republic of Nigeria.
(4) Whether it was right for the learned trial judge to have admitted the evidence given by the plaintiff on record concerning the following facts to wit:-
(a) The father’s oral discussion with the staff of the 1st defendant’s Bank in Lagos regarding the sale of the mortgaged property.
(b) That the father of the plaintiff on record told the plaintiff that he was not in breach of Exhibit ‘C’ when all these were hearsay evidence and therefore not admissible in law.
(5) Based on these facts and circumstances of this case whether it was right for the learned trial judge to have awarded the cost of N25,000 (Twenty five thousand naira) against the 1st and 2nd Defendant/appellant in favour of the plaintiff.
In the Respondent brief of argument, three issues were raised for determination as follows:-
(1)Whether the learned trial judge admitted any hearsay evidence that is to say in admissible evidence, from the plaintiff.
(2) Whether Exhibit C. varied the provisions in Exhibit J rendering same inoperative and inapplicable.
(3) Whether on the facts, evidence and circumstances of this case, there was:
(a) undue delay in delivering judgment by the learned trial judge.
(b) the costs awarded by the learned trial judge was unreasonable, Excessive and punitive.
The three issues above as raised by the Respondent are similar to the appellants issues 1, 3, 4 and 5 and I am inclined to adopt the 5 issues as raised in the appellants brief of argument in the determination of this appeal. Now on issue No. 1, Chinedu Ezebilo SAN of counsel for the appellants submitted that Exhibit J. was a tripartite legal mortgage involving the appellant, the respondent and one S.B.C. Maduakolam, so it is not an agreement between the appellant bank and the Respondents father simpliciter, but S.B.C. Maduakolam whose account is the principal loan account where the loan facility was granted and utilized was not a party to Exhibit C. neither was he joined as plaintiff or called as a witness in the suit. Learned Senior Counsel added that the respondents father had a private account with the 1st appellant bank where he was also indebted to the said appellant and Exhibit C was made with reference to the said account operated under the name and style of “Bobo Brothers” and was made without reference to exhibit J in which case there cannot be a novation or variation.
He further contended that Exhibit C. was made with reference to the overdue debt account of the respondent’s father which he operated as “Bobo Brothers” and as such cannot render Exhibit J inoperative and ineffective nor prevent the mortgagee from exercising its power of sale under the mortgage as novation or variation does not apply in the transaction.
For the respondent, C.O. Anah SAN of counsel referred to a provision in Exhibit J which states thus:-
“Subject to the proviso following namely, that if the borrower and/or mortgagor shall pay to the bank as herein stipulated all amounts due to the bank according to the entries on the records of the bank then, and in such a case the mortgaged property shall at any time thereafter at the request and cost of the mortgagor or any person or persons deriving title under him be duly surrendered to him or them.” (underlining by me)
He then contended that having regard to the content of Exhibit C written to the Respondent’s father by the appellant, his acceptance of the offer in Exhibit ‘D’ and implementation of the concession granted to him in Exhibits E and F, a situation of novation or variation has been establish.
Learned Senior counsel further referred to Osborn’s Law Dictionary 6th Edition at page 235, Section 151 of the Evidence Act and Bullen and Leak 4th Edition at page 717 and argued that the appellants are prevented from going back on the offer made to the Respondent’s father in Exhibit C and which he duly accepted in Exhibit D, E and F, and also implemented.
Now novation is described in Blacks Law Dictionary 6th Edition at page 1064 as:-
“A type of substituted contract that has the effect of adding a party, either as obligor or obligee, who was not a party to the original duty. Substitution of a new contract, debt or obligation for an existing one, between the same on different parties.”

The author further listed three types of novation thus:-
“In the Civil Law, there are three kinds of novation: where the debtor and creditor remain the same, but a new debt takes the place of the old one; where the debt remains the same but a new debtor is substituted; where the debt and the debtor remain, but a new creditor is substituted.”
The instant case seem to all intents and purposes to have fallen under the substitution of a new contract or obligation for an existing one between the same parties. Thus in SCARF VS JARDINE (1882) 7 Appeal cases page 345 Lord Selborne (L.C.) had this to say at page 351:-
“Novation as I understand it means that there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract.”
Now Exhibit J. as the Mortgage agreement entered into by the trio of S.B.C. Maduakolam, the Respondent and the 1st appellant the Respondent being a guarantor to the loan granted to S.B.C. Maduakolam by the 1st appellant.
Item 2 on page 2 of the said Exhibit J. provides in lines 8 to 14 as follows:-
“Subject to redemption following, namely, that if the borrower and/or the mortgagor shall pay to the bank as herein stipulated all amounts due to the Bank according to the entries on the records of the Bank then and in such a case the mortgaged property shall at any time thereafter at the request and cost of the mortgagor or any person or persons deriving title under him be duly surrendered to him or them.” (underlining for emphasis)
To my mind, the import of the above reproduced paragraph in Exhibit J. is that where either the borrower, which in this case is (S.B.C. Maduakolam) or the mortgagor i.e (the Respondents father) is able to repay the money owed according to the calculation and satisfaction of the Bank, then the mortgagor or any person or persons claiming under him shall be entitled to reposes the mortgaged property at his request and cost.
In this case, there is evidence that sometime after the conclusion of the loan transaction as evidenced in Exhibit J., the borrower (S.B.C. Maduakolam) moved to Owerri where he opened another account with the Owerri branch of the 1st Appellant Bank. The Onitsha and Owerri branch accounts of S.B.C. Maduakolam where subsequently merged by the appellant Bank, (note that the Onitsha branch account was the source of the loan facility granted to the borrower, S.B.C. Maduakolam). There was no information as to the later day relationship between the borrower and the mortgagor before and after the former’s movement to Owerri. But what is not in doubt according to evidence duly accepted by the learned trial judge, was that the mortgagor applied to the appellant bank to demerge the borrower’s Owerri and Onitsha accounts to enable him ascertain and repay the loan standing against the borrower’s account at Onitsha branch so that he the mortgagor can recover his mortgaged property. There was also a request for waiver of further interest on the outstanding loan.
The mortgagor’s request was duly granted by the 1st appellant bank and this was evidenced in Exhibit C. written to the mortgagor by the said 1st appellant. I herein below reproduce same shorn of the headings:-
RE YOUR OVERDUE ACCOUNT AT OUR ONITSHA MAIN BRANCH.
Your letter of 27th February, 1989 is hereby acknowledged. Having reviewed the operation of your account in the light of your appeal, the Bank is pleased to grant you the following concessions:-
(1) Further interest calculations on the account is hereby stopped to enable you to pay off the outstanding balance of N36,042,18.
(2) The entire outstanding is to be liquidated in not more than 18 months i.e at the rate of N2,000 monthly unfailingly.
(3) Please confirm your acceptance by a return mail.
ME MARTYNS-YELLOWE, ASSISTANT GENERAL MANAGER (LOANS WORKOUT DEPARTMENT).
In response to the said Exhibit ‘C’, the Respondents father in a letter dated 23/6/89 i.e Exhibit D. replied thus without the headings:- (see also page 104 of Record).
Dear Sir,
Reference to your letter of 11th April 1989, we hereby acknowledge receipt.
We are grateful that our appeal is granted by waiving of interest on debt. We promise to liquidate it according to your letter.
Yours faithfully
MR. J.B.C. Ajugwo
(Managing Director)
(Bobo Brothers”.)
Exhibit E. dated 7/8/1989 was subsequently written by the 1st appellant to the Respondents father and the body of the letter reads thus:-
RE: YOUR OVERDUE ACCOUNT AT OUR ONITSHA MAIN BRANCH.
We refer to your letter dated 23rd June, 1989 and would like you to confirm how much you have paid since the Bank granted you the generous concessions, vide our letter of April 1989.
Please kindly get back to us immediately.
Best regards.
N.E. MARTYNS YELLOWE
ASSISTANT GENERAL MANAGER
(LOAN WORKOUT DEPARTMENT.)
In response to the above, the respondent then wrote Exhibit ‘F’ dated 13/9/1989 giving details of the payments made to the 1st Appellant Bank on a monthly basis from 30/3/89 to 14/8/89 and thanking the 1st Appellant for the generous concessions they were granted.
It follows no doubt that whatever was previously binding on the parties as contained in Exhibit J. in terms of method of repayments and nature of default was varied by the emergence of Exhibits C. to F.
In this regard, the learned trial judge reasoned at page 106 of the record as follows:-
“For novation to ensue there must be not only the substitution of some other obligation for the original one but also the intention of animus novandi. ASHIBUOGWU VS A.G. BENDEL STATE (1988) 1 NWLR (PT 69) 138 Ratio 4 and 5.
UNION BEVERAGES LTD. VS OKOLABI (1988) 1 NWLR (PT 68) 128 ratio 6.
The question to be asked is whether the first defendant can be allowed, both in law and equity, to renege on Exhibits C, D, E, and F. There was an offer and there was acceptance, followed with valuable consideration. They are bound by the terms of Exhibit C. which terms were fulfilled by the plaintiff’s father in Exhibits F. and G. Also there was uncontradicted evidence that between 30/3/89 and 28/12/89 the plaintiffs father made a total payment of N30,420 and on 1/3/90 paid N5,620.00 on Exhibit G. bringing the total payment to N36,049 and that was in full and final payment before the expiration of the 18 months given him in Exhibit C. Infact he paid an Excess of N6.82.”
I agree with the learned trial judge that there has been a variation of the contract or what is termed ‘novation’ as earlier defined.
What is more. Exhibit ‘H’ further gave credence to the fact Exhibit C, D, E and F were meant to ease the burden of Exhibit J. on the mortgagor and his due compliance with the conditions stated in Exhibit ‘C’ prompted the 2nd defendant now (2nd Appellant) to write Exhibit ‘H’ to the Head office of the 1st Appellant. I limit myself for paragraph 3 of the said Exhibit ‘H’ as follows:-
“In view of your letter to the auctioneer already referred to, you may wish to liaise (sic) with legal Department to ascertain whether the sale of the said property is still necessary especially as the customer has been repaying.
The current balance of the account is N23,737.00 DR. as at Date (17th November 1989.
May we hear from you urgently so that we can get in touch with the auctioneer Mr. Timothy Iredu.”
P.A. Otugo
Manager.”
In the light of the content of Exhibit ‘H’ above, the learned trial judge at the same page 108 of the record found as follows:-
“One is surprised that inspite of Exh. H, the 1st and 2nd defendants went ahead with the sale of the mortgaged property. I have held above that the promise or assurance in Exh. C. operates as estoppel in favour of the Plaintiff. The 1st and 2nd defendants must accept their legal relations with the plaintiff’s father as modified by them in Exh. C. which hereby substituted Exh. J. and rendered it’s provisions inoperative. That being the case, they cannot exercise their right as mortgagees under Exh. J. as such powers had been modified by Exh. C. they can only invoke such powers in case of breach by the plaintiff’s father of the terms of Exh. C.”
I find no fault with the above reasoning and I agree with it entirely.
It is a trite procedural tenet that the evaluation of evidence and ascription of probative value to such evidence are the exclusive preserve of the trial court which had the opportunity of hearing and assessing the testimony and conduct of the witnesses. It is unusual for an appellate court to disturb such findings of a trial court except where it is found to be perverse irrational or does not accord with common sense. See DARE VS FAGBAMILA (2009) 14 NWLR (PT 1160) 177; SULE VS HABU (2011) 7 NWLR (PT 1246) 339 and KARIBO VS GREND (1992) 3 NWLR (PT 230) 426.
In the light of the above, issue No. 1 is resolved in favour of the Respondent.

On issue No. 2 , Learned Senior counsel for the appellant submitted that it was not right for the learned trial judge to have declared null and void, the sale of mortgaged property in this case because such declaration was based on the misapplication of the law of novation or variation in this case base on the argument earlier advanced in issue No. 1. Moreso that the account of S.B.C. Maduakolam was in debit to the tune of N76,913.66k when the appellant exercised its right of sale of the mortgaged property to Mr. Sydney Obi.
Learned Senior counsel further argued that the learned trial judge erred in law when he declared null and void the sale of the mortgaged property when such relief was not claimed by the plaintiff in his writ of summons or statement of claim because a court cannot grant a party the reliefs he did not claim. He referred to AKINTERINWA VS. OLADUNJOYE (2006) 6 NWLR (PT 659) 92 and a number of other authorities to support his submission.
It is trite that courts have no power to grant a relief not claimed by a party. The authorities cited by Learned Senior counsel for the appellant are quite exhaustive on this principle of law. See also the case of DUMEZ (NIG) LTD VS NWAKAOBA & ORS. (2009) 12 S.C.M. (PT 2) 504 at 517 – 518 where the Supreme Court held that:-
“It is both fundamental and elementary principle in the determination of actions before a court or tribunal, that the adjudicating body is bound to limit itself to the claims before it. A court may indeed make incidental orders which flow naturally from the relief claimed. However a court has no power and is not under any circumstances entitled to award a relief not claimed by the party in the writ of summons and the statement of claim.”
See also OSUJI VS EKEOCHA (2009) 16 NWLR (PT 1166) 81; CHIME VS ONYIA (2009) 2 NWLR (PT 1124) 1 and BUWANHOT VS. BUWANHOT (2009) 16 NWLR (PT 1186) 22.
In the instant case reliefs as claimed by the Respondent in paragraph 24 of his further amended statement of claim dated 24/5/1996 and filed on 13/6/1996 read as follows:-
“Whereof the plaintiff claims from the defendants jointly and severally as follows”-
(a) A declaration that the plaintiff is entitled to the return of his father’s documents in respect of his landed property at No. 2 Anambra Street, Fegge, Onitsha which said documents as hereinabove mentioned are dated the 4th of May 1973 and the 27th of August, 1974.
(b) An order of court that the said documents be returned to the plaintiff forthwith.
(c) N500,000 (five hundred thousand naira) for breach of warranty and/or assurance for failure to return the said documents in respect of the said overdraft facilities heretofore mentioned which has been re-paid.”
The reliefs granted by the learned trial judge in his judgment as shown in page 110 of the record of appeal is herein below reproduced as follows:-
“In the circumstances of the above reasons I hold that the plaintiff has proved his case on the preponderance of evidence and is entitled to judgment. Accordingly, I hereby enter judgment for the plaintiff against the 1st and 2nd defendants jointly and severally as follows:-
(a) Declaration that the plaintiff is entitled to the return of his father’s documents in respect of his landed property at No. 2 Anambra Street, Fegge, Onitsha, which documents are dated the 4th of May 1973 and the 27th of August, 1974.
(b) An order of this court that the said documents be returned to the plaintiff forthwith.
(c) N250,000 (Two hundred and fifty thousand naira) for failure to return the said documents in respect of the said overdraft facilities which had been repaid.”
I have carefully perused the above claim granted by the trial court vis-a’-vis the reliefs claimed by the Respondent and earlier reproduced and I did not see any difference in the two except for relief (c) where the learned trial judge granted N250,000 instead of the sum of N500,000 as claimed by the respondent. Care must be taken not to confuse the findings of a court with a final order granting a party’s claim.
Learned Senior counsel seemed to have pick quarrel with the finding of the trial judge at page 108 of the record which reads as follows:-
“Having invoked the powers which they no longer had and having purportedly sold the mortgaged property when such rights had not accrued, I declare the purported sale illegal, and void and of no effect.”
The above had nothing to do with the final conclusion and order of the court either to grant or refuse the respondent’s relief as claimed in the writ of Summons or Statement of Claim. Though the learned trial judge wrongly used the words “I declare” instead of “It is my finding” or “I find.” Or “it is my view.” I am of the firm view that it does not alter the fact that it was the product of a review or analysis of the evidence placed before the trial court. It is therefore erroneous for the leaned senior counsel to clothe it with a garb it does not deserve as it is not one of the reliefs granted by the learned trial judge as shown in his judgment and order earlier reproduced.
Issue No. 2 is therefore resolved against the appellant.

On issue No. 3, it was the contention of the Learned Senior counsel for the appellant that after the conclusion of evidence and final addresses by counsel in the case on 6/2/2004, judgment was reserved for 5/3/2004 and later to 20/5/2004 but the learned trial judge failed to deliver the judgment until on the 3/6/2004. 5 months after the final address which is beyond the 90 days or 3 months mandated in Section 294(1) of the 1999 constitution which states that every court established under the 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 of the judgment.
He added that the inordinate delay by the learned trial judge in delivering the judgment on the case after conclusion of evidence and address of counsel was responsible for his losing the trend of evidence before him and lack of adequate consideration of the principles of law applicable to the case which resulted in a great miscarriage of justice. He referred to the case of ARIORI & ORS VS ELEMO & ORS (1983) NSCC (VOL. 14) 1 and urged that the judgment be set aside.
The learned counsel for the Respondent on the other hand submitted that immediately after the case was adjourned for judgment, the Judicial Staff of Anambra State went on strike which lasted till 7/4/2004 and on 8/4/2004, the parties and their counsel were absent from court and the matter was adjourned to 20/5/2004. Soon thereafter the Federal Judicial Staff went on their own strike and the Anambra Judicial Staff also joined them in sympathy and this lasted for about two weeks before it was called off and judgment in the case was eventually delivered on 3/6/2004. He added that the strike action contributed greatly to the delay in delivering the judgment.
Furthermore, he says, the appellants have not shown any miscarriage of justice under Section 294(5) of the 1999 constitution having contributed to the delay by their non appearance in court on 8/4/2004 when the judgment would have been delivered and added to that is the issue of industrial action.
Learned Senior counsel further contended that the judgment was very vivid about the evidence, facts and circumstances of the case before it which was more or less documentary as agreed to by the appellants on page 7 of their brief of argument.
Section 294(1) of the 1999 constitution of the Federal Republic of Nigeria provides as follows:-
“Every court established under this constitution shall deliver it’s decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined, with duly authenticated copies of the decision within seven days of the delivery thereof.”
Section 294 (5) of the same constitution goes further to provide thus:-
“The decision of a court shall not be set aside or treated as a nullity on the ground of non-compliance with the provisions of subsection (1) 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.”
It seems to me of necessity to stress the obvious that although courts are expected to deliver their decision within 90 days after final addresses, where the stipulated time is however not complied with either due to force majeure, inadvertence or neglect, such decision will not be rendered a nullity, unless and until the appellate court seized of the complaint or appeal is satisfied that such late delivery of judgment has occasioned miscarriage of justice. This to my mind is the true import of the provisions of Section 294(1) and (5) of the 1999 constitution aforementioned. See also the decisions in ATUNGWU VS OCHEKWU (2004) 17 NWLR (PT 901) 18; IGWE VS KALU (2002) 5 NWLR (PT 761) 678 and OLOKOTINTIN VS SARUMT (1997) 1 NWLR (PT 480) 222 AT 232.
In the instance case, final addresses by counsel in the case was concluded on 6/2/2004 and judgment was eventually delivered on 3/6/2004. That is about 118 days thereafter, meaning that it exceeded the stipulated 90 days with about 28 days. That notwithstanding, for this court to declare the judgment a nullity on the ground of delay in the delivery of the judgment, the appellant must of necessity produce convincing and credible evidence that it suffered a miscarriage of justice as a result. I have had cause to revisit the judgment of the lower court for a thorough reappraisal but find it difficult or impossible to identify any aspect of the finding of the learned trial judge that might have been skewed, nor was there any misapplication of the evidence adduced by the parties as alleged by the appellants, rather I find that the evidence available for the consideration of the learned trial judge was predominantly documentary and this fact was alluded to by the learned senior counsel for the appellants at page 7 paragraph 4.5:3 of the appellant’s brief of argument. I therefore hold that no miscarriage of justice was shown to have been occasioned to the appellant by the delay to justify a declaration of the decision of the lower court a nullity. This issue is also resolved against the appellants.

On issue No. 4. Learned Senior counsel for the appellants submitted that the plaintiff on record in Suit N0. 0/118/90 Mr. Ifeanyi Ajugwo cannot give evidence of the father’s discussion with the officers of the 1st appellant bank in Lagos with regard to the truth of the fact that the officers in the 1st appellant Head office to the respondent’s father that they had sent a radio message to their branch office at Onitsha ordering them to stop the sale of the mortgaged property on 20/1/89 because such evidence is a hearsay evidence and therefore not admissible in law. He relied on the following authorities:- JOLAYEMI VS ALAOYE (2004) 2 NWLR (PT 887) 322 and U.B.N. PLC VS ISHOLA (2001) 15 NWLR (PT 735) 47.
Learned Senior counsel added that the Respondents cannot also give evidence of the truth of the fact that when his father come back to Onitsha branch office of the 1st appellant, the 2nd appellant who had since before the commencement of this Suit retired from the 1st appellant bank and who did not take part in the trial told his father that he received a radio message from his Head office in Lagos and that he had ordered the auctioneer to stop the sale of the mortgaged property.
Therefore he submitted, it was wrong of the learned trial judge to admit hearsay evidence which was inadmissible in law and which aided him in declaring null and void and of no effect the sale of the mortgage property. He also cited two authorities to wit:- JAMES VS. NIGERIA AIRFORCE (2000) 13 NWLR (Pt.684/406 and INEC VS. RAY (2004) 14 NWLR (PT.892) 92.
Conversely, the Learned Senior counsel for the Respondent referred to the fact that upon the death of the Respondents father, he was substituted as plaintiff in place of his father, in which case he could come to say what his father would have said. He relied heavily on Section 34(1) of the Evidence Act which he contended, is a statutory provision of an exception to the hearsay rule whereof previous evidence by someone rather than direct evidence by him is admitted in evidence as the truth of what he had earlier said in respect of the case. He also cited in support the case of IKENYE VS OFUNE (1985) 2 NWLR (PT 5) 1 at 9.
Learned Senior counsel however concluded that the judgment of the learned trial judge was mainly documentary wherein the appellants did not suffer any miscarriage of justice.
I cannot but look askance at the proposition that Section 34(1) of the Evidence Act exempts the Respondent’s evidence now in contention, from the Rule against hearsay because he stepped into the shoes of his father as plaintiff in the court below.
The import of the said proposition if carried, is that once there is an order substituting a party in a Suit, whatever the former party had wanted to give in evidence can be regurgitated by the substituted party without much ado. To my mind, this cannot be the position of the law having regard to the provisions of Section 77 (a- d) of the Evidence Act which provides that:-
“Oral evidence must, in all cases whatever be direct-
(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.
(c) If it refers to a fact which could be perceived by any other or in any other manner it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) If it refers to an opinion or to the grounds on which that opinion is hold, it must be the evidence of the person who holds that opinion on those grounds.”
The above provision is quite clear and unambiguous. The Respondent definitely cannot give evidence as to what transpired between his father and officers of the 1st Appellant bank in Lagos when he was not there with him. Neither can he give evidence of what transpired between the 2nd appellant and other officers of the 1st appellant regarding whether or not radio message was sent or received by the 2nd appellant. This will amount to hearsay evidence. See JOLAYEMI VS OLAOYE (2004) 12 NWLR (PT 887) 322, and U.B.N. PLC VS ISHOLA (2001) 15 NWLR (PT 735) 47.

The intent and purpose of Section 34 of the Evidence Act is clear. Simply put, it pertains to the admissibility in the present proceeding, of evidence given by a witness in a previous proceeding. Such previous evidence though hearsay, is admissible in the present proceeding under Section 34, which provide an exception to hearsay rule once the requisite conditions are fulfilled. See IKENYE VS OFUNE (1985) 2 NWLR (PT 5) 1.
For the purpose of clarity, I herein below reproduce the provisions of Section 34 (1) of the Evidence Act:-
34(1) “Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse Party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:
Provided:-
(a) that the proceeding was between the same parties or their representatives in interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
I do not need to say much again. The above provision is very clear and succinct to the effect that it relates to the admissibility of evidence given in a previous judicial proceeding in a subsequent judicial proceeding or in a later stage of the same proceeding.
The reliance on the Section 34 (1) of the Evidence Act by learned senior counsel to justify the admissibility of the portion of the Respondent’s evidence which otherwise is hearsay in contention deserves to be expunged from the record and it is so ordered.
However, having earlier indicated that the judgment of the learned trial judge was based mainly on documentary evidence, I am of the firm view that expunging that part of the Respondents evidence found to be hearsay does not in anyway alter the status quo as per his findings. In other words, I can comfortably conclude that there was no miscarriage of justice.
On issue No. 5. Learned Senior counsel for the appellant submitted that the award of N25,000 cost against the appellant in a case of this nature was punitive, outrageous and out of proportion.
He added that the case lasted for 14 hearings days only and the trial did not involve many witnesses but was almost documentary. He concluded that based on the facts and circumstances of the case the learned trial judge did not exercise his discretion judiciously and judicially in the award of costs. Reliance was placed on the following cases:-
N.B.C.I. VS ALFUR (mining) (Nig) Ltd (1999) 14 NWLR (PT 638) 250; OLUSANYA VS OSINEYE (2001) 13 NWLR (PT 730) 298 and A.G. KWARA STATE VS ALAO (2000) 9 NWLR (PT 671) 84.
Conversely, the learned senior counsel for the respondent contended, that the award of costs is always at the discretion of the trial court though it has to exercise that discretion judiciously and judicially as held in AKINBOBOLA VS PUSSON FISKO (1991) 1 NWLR (PT 167) 270 at 278.
He added that it is a trite principle that the appellate court will not interfere with the said discretion unless it is shown that it was not exercised judiciously and judicially.
Learned Senior counsel further went into history to show that the case started in 1990 and went through four trial judges before it ended on 3/6/2004 and on the whole there were a total of 48 appearances and not 14 as claimed by the appellants.
It is trite that the award of costs is always at the discretion of the court but such discretion must be exercised judiciously and judicially. It is also a well settled principle that costs follow event and a successful party is entitled to costs except where there are special reasons for depriving him of such entitlement and these ought to be shown by the judge. See OBAYAGBONA VS OBAZEE (1972) 5 SC 247. AMIRA NIG) LTD VS MAL (NIG) LTD. (2001) 17 NWLR (PT 742) 269 and DONATUS IDAM VS ALEX IDEMYOR MENE (2009) 17 NWLR (PT 1169) 74.

It is also a well established judicial tradition that an appellate court would exercise restraint in interfering with the exercise of discretion by the trail court except when it is made manifest that it was wrongly exercised such as taking into account irrelevant factors, showing malafides or that the award was made arbitrarily. See REWANE VS OKOTIE EBOH (1960) FSC 200.
In the instant case, the learned trial judge in awarding cost in the judgment aforesaid simply stated therein at page 110 of the record as follows:-
“I assess and fix costs at N25,000 in favour of the plaintiff.”
The said Suit No. O/118/90 was filed on 22/3/90 as shown in the record of proceedings and the learned trial judge who finally heard and determined the Suit first took it up on 4/12/2000 and continued till judgment was delivered on 3/6/2004. On the whole I counted 22 appearances during the period under review. For a suit handled by a Senior Advocate of Nigeria, it seems to me that the award of N25,000 in favour of the plaintiff cannot be properly termed outrageous or done malafide.
It is worthy of note that costs are not imposed as a punishment on the party who pays them, neither are they awarded as a bonus to the benefiting party. The party entitled should only be indemnified for his out of pocket expenses and be compensated for the true and fair expenses for the litigation. See BUHARI VS OBASANJO (2005) All FWLR (PT 258) 1604; KUKOYI VS ODUFALE (1965) 1 All NLR 300 and OLASOPE VS NATIONAL BANK OF NIGERIA (1985) 3 NWLR (PT 11) 147.
In the circumstance this court does not see any justification to interfere with the award of N25,000 cost in favour of the plaintiff by the learned trial judge. This is one exercise of discretionary power that should not be disturbed by an appellate court.
Issue No. 5 is therefore resolve against the appellant.

In the final analysis, I find that this appeal lacks merit and is hereby dismissed. The judgment of the lower court is hereby upheld. I award a cost of N20.000 in favour of the Respondent.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA. I entirely agree with him that this appeal lacks merit and should be dismissed. I will however like to make a small contribution on issue 5 distilled by the Appellants. It reads thus:
‘Based on these facts and circumstances of this case whether it was right for the learned trial judge to have awarded the cost of N25,000 (twenty-five thousand naira) against the 1st and 2nd Defendants/Appellants in favour of the Plaintiff.’
My learned brother had narrated the facts of this appeal in the lead judgment and it will be inelegant to again repeat same in this contribution.
In his submission on the issue, learned senior counsel for the Appellants Chidube Ezebilo argued that the award of N25,000 costs against the Appellants in the circumstances of the case was punitive, outrageous and out of proportion. He maintained that the trial did not involve many witnesses and that it was essentially documentary. He submitted that the learned trial judge did not exercise his discretion judicially and judiciously in the award of the costs. He referred this court to the cases of
NBCI v. Affiio (Mining (Nig.) Ltd. (1999) 14 NWLR (Pt 639) page 250.
Olusanya v. Osineye (2005) 13 NWLR (Pt 730) page 298.
A.G. Kwara State v. Alao (2000) 9 NWLR (Pt 67) page 84.
Learned senior counsel for the respondent C. O. Anah in his response submitted that the award of costs is always at the discretion of the trial court though it has to exercise that discretion judiciously and judicially. He referred the court to the case of Akinbobola v. Pttsson Fisko (1991) 1 NWLR (Pt 167) page 270 at 278.
C. O. Anah gave a brief history of the cases, which he said started in 1990 and pass through four trial judges before it was finally concluded on 3/6/2004. He argued that on the whole they put up 48 appearances and not 14 as contended by the Appellants.
The essence of costs is to compensate the successful party for part of the loss incurred in the litigation, but it cannot cure all the financial loss sustained in the litigation process. Costs serve as some cushioning or palliate effect on the financial burdens of the party in victory, and once the court is satisfied that that purpose is attained, it should not give an extra order which may have the effect of punishment to the party who has lost in the litigation contest. See
Registered Trustee of Ifeloju v. Kuku (1991) 5 NWLR (Pt 189) page 65.

It is settled law that costs follow event, unless there are circumstances suggesting the contrary such as where the beneficiary misconduct himself.
Anyaso v. Anyaso (1998) 9 NWLR (Pt 564) page 159.
Biode Pharmaceuticals Ltd. v. Adsell Ltd. (1986) 5 NWLR (Pt 10) page 70.
Akinbobola v. Phisson Fisko Nig. Ltd. & Ors (1991) 1 SCNJ 129 at 133 at 141.
Ladega v. Akinliye & Ors (1975) 2 SC 91 at 97 – 98.
Obayaflona & Anor v. Obazee & Anor (1975) 5 SC 247 at 253 – 254.
Haco Ltd. u. S. M. Daps brown (1973) 1 ALL NLR (part 1) page 423 at 427 – 428.

The award of costs involves a judicial discretion which must be exercised judicially and judiciously on fixed principles that is according to rules of reason and justice not according to private opinion. See Wurno v. VAC Ltd. (1956) I FSC 33 at 34.
The exercise of such discretion must similarly not be affected by question of benevolence or sympathy.
The award of costs is not meant to be a bonus to the successful party and should not be awarded on sentiment. See Universal Bank of Nigeria Ltd. v. Nwaokolo (1995) 11 Kings Law report (KLR) 919.
Rewani v. Festus Okotie-Eboh (1960) 5 FSC 200 at 207.
It follows therefore that the discretion of the court in awarding costs must be judicially and judiciously.
It is an acceptable practice in law for appellate court not to interfere with the exercise of discretion by lower courts.
In this regard appellate courts seldom interfere with the exercise of discretion in awards of costs except where such discretion is not exercised judicially and judiciously. See
Nwaubani v. Golden Guinea Breweries Plc. (1995) 6 NWLR (Pt 400) page 191
A trial judge has discretion whether to award costs or not and also as regards the person by whom the costs are to be paid.

It is trite law that costs must not be excessive. Costs are regarded as excessive if they cannot be justified in relation to the circumstances of the case. See
Melwani v. Chanhira Corporation (1995) 6 NWLR (Pt 402) page 447.
Generally there is no right of appeal against an award of costs except with leave of the High Court or of this court by virtue of section 241(2)(c) of the 1999 constitution. The exception to this provision of the constitution is where in addition to appeal as to costs, there is appeal on other issues or issue. See Anyaso v. Anyaso (1998) 9 NWLR (Pt 564) page 157.
Ayanboye v. Balogun (1990) 5 NWLR (Pt 151) page 410.
In the instant case the trial judge in awarding cost did not state what he took into consideration in arriving at what was the appropriate costs in the circumstances of the case.
The court simply said at page 110 of the record.
‘I assets and fix costs ot N25,000 infavour of the Plaintiff.’
Since the award of costs is at the discretion of the court, there is no obligation on the part of the court to give reasons for the award or factors it took into consideration in fixing the award of costs in the body of its judgment, so long as from the costs awarded it would appear to a reasonable man that the court exercised its discretion judicially and judiciously.
There are however plethora of authorities indicating that costs can be awarded on the ordinary principle of genuine and reasonable out of pocket and normal counsel cost usually awarded for a leader and one or two junior.
See
International Offshore Construction Ltd. v. S.I.N. Ltd. (2003) 16 NWLR Pt 845 page 157.

Since there is no universal table for fixing costs, because costs following events, court must take the peculiar circumstances of each case into consideration in forming their opinion whether to award costs or not.
The following are instances where the courts had taken certain factors into consideration in the award of costs. In
Olasope v. national bank of Nigeria Ltd. & Anor (1985) 3 NWLR (pt 11) page 147 of 152. This court reduced the N200 costs awarded to the 1st Respondent to N100.
Kutigi JCA (as he then was) said:-
‘I see no basis for awarding N200 costs to the 2nd Respondent who to all intent and purposes appears to be o busy-body as far as this suit is concerned. He voluntarily joined himself and had nothing to ask the Appellant even after testifying in court. And coupled with what his own counsel said in court below that his appearance should be discontinued. He is in my view entitled to no costs and I award none to him.’
In Umarco Nigeria Ltd. v. Panelpina World transport Ltd. (1986) 1 CA (pt 2) page 324, this court set aside the N1,000 cost awarded in favour of the Respondent on the ground that this amount was not only excessive but also unreasonable having regard to the out-of-pocket expenses, the length of hearing and other relevant circumstances. See
Oforn & Ors v. Odunsi (1960) NMLR 12. But in Daily Times Nigeria Ltd. v. Chief William (1986) NWLR Pt 36 page 526.
The judge awarded the Respondent N1,000.00 exemplary damages and N1,000 costs. The Appellant appealed both on the exemplary damages and on the cost. On the issue of costs, it was contended that as the Respondent conducted the case himself and spent only N101.17k out-of-pocket expenses, N1,000 costs was excessive. The court held that award of N1,000 was not excessive even though the respondent out-of-pocket expenses are N101.17k .
Ademola JCA (as he then was) said:-
‘On the issue of costs awarded I do not regard it as excessive because all factors must have been taken into consideration and the fact that the Respondent conducted the case himself should not necessarily be against him but could also be in favour of the Appellant in that if a counsel had been employed by the Respondent, the cost awarded could have reflected counsel cost in favour of the Respondent.’
In the instant case, taking into consideration that the matter lasted from 22/3/90 to 3/6/2004, a period of almost 13 years. The counsel for the Respondent is a Senior Advocate of Nigeria and had put up 48 appearances in the matter. I am of the opinion that the award of N25,000 is not excessive particularly if the declining value of the Nigerian naira is taken into consideration.
It is for this reason and for other reasons contained in the lead judgment that I am of the considered opinion that this appeal is unmeritorious. I also dismiss same and uphold the decision of the lower court delivered on 3/6/2004. I abide by the consequential order as to costs contained in the lead judgment.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother, Hon. Justice Samuel C. Oseji, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. His Lordship has dealt with the issues raised in the appeal, incisively and completely and I have nothing useful to add
I adopt the Judgment as mine and I too, dismiss the appeal and hereby affirm the judgment of the lower court delivered on 3/6/2006 appealed against. I also abide by the order in respect of cost, made by my learned brother in the Judgment.

Appearances

Chief L. C. B. Ezebilo (SAN) with A. O Ezebilo Nnedu (Mrs) For Appellant

AND

F. A. Ogbuli (Mrs) For Respondent