ALH. MUHAMMED ALIYU SHABA NDALILE & Ors v. HIS ROYAL HIGHNESS ETSU NUPE & Ors
(2010)LCN/3881(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of June, 2010
CA/A/178/07
RATIO
APPEAL: GROUND OF APPEAL; DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF FACT
The distinction between a ground of law from a ground of fact is not always easy but what is required is to examine thoroughly the grounds of appeal in the case under consideration and see whether the Grounds of appeal reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved. A ground of Appeal which complains of a misunderstanding by the lower Court of the law or misapplication of the law to facts already proved or admitted is a ground of law. But a ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact. Also a ground of appeal that a trial Court failed to consider the issue raised on the pleadings before it is a complaint involving questions of law alone. A complaint in a Ground of Appeal about wrongful admission of evidence is also a question of law. See the following cases:- – Nwadike & 2 Others vs. Ibekwe & 2 Others (1987) 4 NWLR Part 67 Page 718, – Ogbechie vs. Onochie (1986) 2 NWLR Part 23 Page 484 at 490. PER JIMI OLUKAYODE BADA, J.C.A.
APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT ON THE GROUND OF DELAY IN DELIVERY OF JUDGMENT
Where there has been an inordinate delay between the commencement of the taking of evidence, address of Counsel and the Judgment in the suit, an Appellate Court may, in an appropriate case interfere with and set aside any judgment given after such a delay. Such appropriate cases may include proceedings in which from their peculiar circumstance the appellate Court is satisfied that the trial Court had lost its impressions of the trial or much of the advantage which it might otherwise be supposed to have derived from seeing and hearing the witnesses and assessing their credibility. See the following cases:- – Egbo vs. Agbara (1997) 1 NWLR Part 481 at 293: – Ekeri vs. Kimisede (1976) 9-10 S.C. Page 61:
– Kakarah vs. Imonikhe (1974) 4 S.C. Page 151. Furthermore, it is not the law that once a delay in the delivery of Judgment is established, an appeal will be allowed and an order of retrial made. Although, undue delay between the reception of evidence of witnesses, addresses of Counsel in the Proceeding and the delivery of the Judgment thereto can ipso facto raise before an appellate Court a strong presumption that the trial Court could not have made use of its advantage of seeing and observing the demeanour of the witnesses who testified before it. But this presumption is neither a presumption of law nor is it irrefutable. In an appropriate case, the presumption may be rebutted in which case the delay complained of would not have occasioned any miscarriage of Justice and must consequently be regarded as inconsequential. Therefore, delay per se is not sufficient reason for the interference with the Judgment of a trial Court, for the complaint to succeed, it has to be further established that the delay occasioned a miscarriage of Justice in that the trial Court did not take a proper advantage of having seen or heard witnesses testify This is fatal in that it may have affected the Court’s perception, appreciation and evaluation of the evidence and it could be easily seen that the trial Judge has lost the impression made on him by the witnesses, then in such a case there might be some fear of a possible miscarriage of Justice and then, but only then will an Appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect, it produced in the mind of the trial Judge. PER JIMI OLUKAYODE BADA, J.C.A.
DUTY OF THE COURT: WHETHER A COURT HAS A DUTY TO CONFINE ITSELF TO THE ISSUES RAISED BEFORE IT
It is settled law that a Court shall not raise an issue suo motu and resolve it without hearing the parties on the matter. A Court has a duty to confine itself to the issues raised and or canvassed before it. See the case of:– A.G. Leventis Nig. Ltd vs. Akpu (2007) 46 WRN Page 1 at 15 ratio 10. PER JIMI OLUKAYODE BADA, J.C.A.
COURT: WHETHER THE COURT CAN DELVE INTO SUBSTANTIVE MATTERS AT INTERLOCUTORY STAGE
It is also trite that a Court shall not, at interlocutory stage, delve into the merit of the substantive matter. This is what the lower Court has done in the Ruling of 3/5/2005. See:– Fasheun vs. A.G. Federation (2006) 43 WRN Page 99. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
(1) ALH. MUHAMMED ALIYU SHABA NDALILE
(2) ALH. TSOWA ETISHESHI (NDASHI MOKWO)
(3) ALH. NDANA BANTI (MADAKI MOKWA)
(4) ALH. IDRIS GORO (NDAGORO MOKWA)
(5) ALH. MUH’D SANTALI (NDATWASHA MOKWA)
(6) ALH. AHMADU NDAWANGWA (NDAWANGWA MOKWA
(7) ALH. SWASUN MUHAMMED (MAJIN SHESHI MOKWA)
(8) ALH. MA’AJIN KPEGE (MAJIN GUYE MOKWA)
(9) ALH. USMA NDAGBA RABA
(for themselves and on behalf of mokwa district communities) Appellant(s)
AND
(1) HIS ROYAL HIGHNESS ETSU NUPE ALHAJI YAHAYA ABUBAKAR
(2) ALHAJI SULEIMAN KOBO USMAN PURPORTED NOMINEE-MOKWA DISTRICT HEAD
(3) THE EXECUTIVE GOVERNOR, NIGER STATE
(4) THE HON. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS NIGER STATE
(5) THE HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, NIGER STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment) This is an appeal against the Ruling of the High Court of Justice, Niger State sitting in New Bussa in Suit Number: NSHC/MN/144/2001. ALHAJI SULEIMAN NDALILE MOKWA & 8 OTHERS VS. HRH. ALHAJI ABUBAKAR. ETSU NUPE & 4 OTHERS, delivered on 3rd May, 2005.
Briefly, the facts of the case are that the Appellants at the lower Court claimed against the Defendants jointly and severally for a Declaration challenging the nomination and appointment of the 2nd Respondent as the District Head of Mokwa Town in Mokwa Local Government Area of Niger State by the 1st and 3rd Respondents respectively.
After the exchange of pleadings, the Respondents, pursuant to Order 23 Rule 2 of the High Court (Civil Procedure) Rules of Niger State, applied to the Court that the points of law raised in the pleadings be set down for hearing.
In his Ruling, the learned trial Judge held that all persons named in this suit are interested parties and therefore have locus standi to institute the action. Hearing was adjourned till 16/6/2005.
Dissatisfied with the Ruling, the Appellants now appealed to this Court.
The learned Counsel for the Appellants formulated three issues for determination set out as follows:-
(1) Was the learned trial Judge right in Law when he delivered his Ruling eleven (11) months after the final addresses by Counsel.
(2) Was the trial Court right when, at an interlocutory stage, it delved into the main case, and raised an issue suo motu.
(3) Whether the Ruling of the trial Court was not vitiated, having been based on evidence or issues not available or canvassed before it.
The learned Counsel for the 1st and 2nd Respondents formulated two issues for determination set out as follows:-
(1) Whether the Ruling of the learned trial Court can be vitiated merely because it was delivered more than 90 days after Counsels addresses on the issues raised.
(2) Whether the combined effect of Order 23 rules 2 and 3 and Order 34 of the High Court (Civil Procedure) Rules of Niger State, the lower Court cannot try and determine questions, issues and points of law raised and settled from the pleadings.
The learned Counsel for the 3rd, 4th and 5th Respondents formulated three issues for determination set out as follows:-
(1) Whether the delivery of the Ruling by the trial Judge 11 months after the submissions of Counsel vitiates it in the face of subsection 5 of section 294 of the Constitution of the Federal Republic of Nigeria 1999.
(2) Whether section 34(b) of the High Court (Civil Procedure) Rules suffices the Judge to discharge the whole matter before him in deciding the interlocutory application.
(3) Whether the interlocutory Ruling which disposed of the entire suit is an anomaly in law.
The learned Counsel for the parties adopted and relied on their respective briefs of argument.
At the hearing, the learned Counsel for the 1st and 2nd Respondents raised Preliminary Objection to the hearing of the Appeal pursuant to Order 10 of the Court of Appeal Rules 2007.
The Ground of the Objection is that the Appeal, being an Interlocutory Appeal containing grounds of facts or mixed law and facts, is not competent for failure of the Appellants to obtain leave of this Court before filing the Notice of Appeal as required by Section 242 (1) of the 1999 Constitution.
The learned Counsel for the 1st and 2nd Respondents submitted that it is not in dispute that the Ruling of the lower Court being appealed against as predicated on the applications of the parties to Orders 23 and 4 of the High Court (Civil Procedure) Rules of Niger State, raised for the determination of certain points of law and issues admitted in pleadings, after the exchange of pleadings.
He submitted that the Ruling being an Interlocutory Decision of the lower Court, the Appellants are required to obtain leave of Court before filing their Notice of Appeal against the Ruling.
He referred to Section 242 (1) of the Constitution of the federal Republic of Nigeria and submitted that the Ruling delivering in this case on 3/5/2005 by the lower Court was not the one contemplated under Section 242 of the 1999 Constitution.
He argued further that the said Ruling did not finally dispose of the rights of the parties in the substantive suit filed at the lower Court.
It was further submitted on behalf of 1st and 2nd Respondent that Grounds (1), (3) and (6) in the Notice of Appeal which alleged misdirection and Ground 8 are grounds of facts or facts and law, therefore that the appeal is incompetent for the failure of the Appellants to obtain leave pursuant to Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria.
He relied on the following cases:-
– Mkpen Tiza v. lorakpen Begha (2005) 5 SCNJ Page 168 at 179 Paragraph 10;
-Nurudeen Oniwaya v. Omolere Ikuomola (2008) 17 WRN Page 185 at 187 ‘E2’80” 189 Ratios 1-6;
-Alhaji Rufai A. Salami v. Amusa Oseni & Others (2002) 24 WRN 131 at 133 Ratio 3;
-Alhaji Sabo Mohammed Gabari v. Ibrahim Mohammed Ilori & Others (2002 46 WRN Page 55 at 56 ‘E2’80” 58 Ratio 1, 2, and 3;
-A.N.M Petroleum Ltd v. Afribank Nig. Plc (2006) 49 WRN page 136 at 145 Tatio 6;
-Alfa Mubo & Others v. Sule Alabi (2008) 5 WRN page 89 at 94 Ratio 6;
-Chief S.O. Agbareh & 1 Other v. Dr Anthony Mimra (2008) 12 WRN page 1 at 16 Ratios 16, 17 and 19;
– Interocean Oil Corp Nig. Unlimited vs. Dr Festus A. Fadeyi (2008) 4 WRN Page 119 at 123 – 126;
– Investors International (London) Ltd vs. First Bank of Nig. Ltd (2008) 13 WRN Page 83 at 86 Ratio 3.
In his response, the learned Counsel for the Appellants submitted that all the grounds of appeal in this case raised question of law only. He relied on Section 241(1) (b) of the 1999 Constitution.
The contention of the learned Counsel for the 1st and 2nd Respondents is that the Appeal, being an Interlocutory Appeal containing grounds of facts or mixed law and facts, is not competent for failure of the Appellants to obtain leave of the lower Court or this Court before filing the Notice of Appeal as required by Section 242 (1) of the 1999 Constitution.
Under Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings.
(c)………………………..
(d)………………………..
(e)………………………..
(f)…………………………
Section 242(1) of the same Constitution states that-
‘Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal’
There is no doubt that the decision appealed against is an interlocutory decision. After the Ruling, the learned trial Judge fixed hearing for 16/06/05.
The learned Counsel for the 1st and 2nd Respondents submitted that Grounds (1), (3), (6) and (8) of the Notice and Grounds of Appeal are grounds of facts or containing facts and law and as such the Grounds of Appeal and the Appeal itself is incompetent for the failure of the Appellants to obtain leave pursuant to Section 242 (1) of the Constitution of the Federal Republic of Nigeria. Whereas the learned Counsel for the Appellants contended that all the (8) eight Grounds of Appeal are grounds of law alone.
The distinction between a ground of law from a ground of fact is not always easy but what is required is to examine thoroughly the grounds of appeal in the case under consideration and see whether the Grounds of appeal reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the fact already proved. A ground of Appeal which complains of a misunderstanding by the lower Court of the law or misapplication of the law to facts already proved or admitted is a ground of law. But a ground of appeal which questions the evaluation of facts before the application of the law, is a ground of mixed law and fact. Also a ground of appeal that a trial Court failed to consider the issue raised on the pleadings before it is a complaint involving questions of law alone. A complaint in a Ground of Appeal about wrongful admission of evidence is also a question of law.
See the following cases:-
– Nwadike & 2 Others vs. Ibekwe & 2 Others (1987) 4 NWLR Part 67 Page 718,
– Ogbechie vs. Onochie (1986) 2 NWLR Part 23 Page 484 at 490.
At this juncture, it would be necessary to set out the (8) Grounds of Appeal put forward by the Appellants and virtually examine it in line with the position of the law.
3. GROUNDS OF APPEAL
GROUND ONE (1)
The learned trial Judge misdirected himself when he said that the ruling was in respect of some issues for determination filed in accordance with order 34 rules 1 and 5 of the High Court Civil Procedure Rules Cap. 54, 1989 when the Counsel to 1st and 2nd Defendants/Respondents only filed a motion on Notice on 2nd July, 2003 to set down for hearing some points of law pleaded by both Plaintiffs/Appellants and Defendants/Respondents.
PARTICULARS OF MISDIRECTION:
(a) At the beginning of the ruling complained of, the trial Judge stated that this is a ruling in respect of some issues for determination filed in accordance with order 34 rules 1 and 5 of the High Court (Civil Procedure) rules, Cap. 54, 1989.
(b) From the proceedings of the Court of 15th June, it was the learned Counsel to the Appellants that filed/submitted issues for determination dated 20th April, 2004 and was granted by the Court and not the 1st and 2nd Respondents’ Counsel.
(c) The 1st and 2nd Respondents filed a Motion on Notice on 2nd July, 2003 which was set down for hearing against 15th June, 2004 and tagged: “POINT OF LAW RAISED IN THE PLEADINGS”and argued the same day.
GROUND TWO (2)
The learned trial Judge erred in law when he failed to deliver his ruling within 3 months from the date of conclusion of addresses by all the Counsel in the matter.
PARTICULARS OF ERROR
(a) By the provisions of S. 294(1) & (5) of 1999 Constitution learned trial judge was obliged to deliver his ruling/decision 90 days from the 15th June, 2004 when all the Counsel concluded their final addresses on the application.
(b) The application was heard by the trial Judge on the 15th day of June, 2004 and ruling was delivered on the 3rd day of May, 2005, a period of 12 months.
(c) The trial Judge lost memory of the facts of the application as exampled in the entire ruling thereby occasioned serious substantial miscarriage of justice against the Appellants.
GROUND THREE (3)
The trial Judge erred in law when he extensively and constantly referred to North Western State Policy statement of 1970 when the same was neither produced or tendered nor exhibited to the application by the Respondent before the Court.
PARTICULARS OF ERROR
(a) North Western State Policy statement of 1970 was a mere document that ought to be before the Court by way of evidence either oral or by affidavit evidence which is not.
(b) The same document was never referred to as a law by the Plaintiffs/Appellants in their amended statement of claim and neither was it admitted as a law by Appellants’ Counsel in his submission before the Court.
(c) References to the Northern Western State Policy of 1970 and ruling on it at that state was pre-mature.
GROUND FOUR (4)
The learned trial Judge erred in law when he held that the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, being a law enacted by the National Assembly cannot have force of law in any part of Nigeria without knowing the facts of the substantive suit before the Court.
PARTICULARS
i. The African Charter being a law enacted by the National Assembly cannot have the force of law in any part of Nigeria, and thus cannot be used to regulate Local Government Councils and body Corporate established by the State House of Assembly as envisaged in item 32.
ii. The African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap. 10 Law of the Federation, being a law promulgated by the National Assembly under Section 12(2) of the 1999 Constitution is not a law that can govern this specie of action which was borne out of Chieftaincy matters that emanated from Local Government Law 2001, Laws of Niger State as amended.
iii. Issues for determination or points of law canvassed by the 1st and 2nd Respondents was not effectively determined without reference to the facts of the case.
iv. The conclusion that African Charter on Human Peoples’ Right (Ratification and Enforcement) Act was not applicable to the facts of the case was pre-mature at that stage as the law was not related to facts in the substantive suit.
v. All Courts in Nigeria are enjoined to enforce the provisions of the Act as stated by Supreme Court of Nigeria in the case of Gen. Sani Abacha & 2 ors vs. Chief Gani Fawehinmi (2004) SCNJ Page 400 at 410 – 412 and in the Act itself.
GROUND FIVE (5)
The learned trial Judge erred in law when he held that Bida Emirate Council was a body Corporate created by Law and can sue and be sued in accordance with S.79 (1) of Niger State Local Government Law 2001.
PARTICULARS OF ERROR
S.79 (1) of Niger State Local Government Law 2001 only provide for the establishment of Niger State Emirate and Traditional Councils but did not confer on them any Corporate Entity to sue and be sued.
GROUND SIX (6)
The learned trial Judge misdirected himself in law to deny the Appellants access to Court to have their grievances heard on merit when he held that the judiciary cannot interfere with the mode of appointment of district Heads by 1st Respondent as it pleases him if he does so in compliance with the existing law in force without hearing the main suit before the Court.
PARTICULARS OF ERROR
1.The question now that comes to my mind is: can the Judiciary interfere with the mode of appointment of District Heads by His Royal Highness as it pleases him if he does so in compliance with the existing law in force?
My answer to this question is in the negative.
2. Appellants were denied fair hearing as the trial Judge decided the main substantive case at preliminary stage of the trial.
3. That no Court can interfere with the appointment of District Head even if it is improper and unconstitutional once it conform with existing law.
GROUND SEVEN (7)
The learned trial Judge erred in law when he held that the appointment of District Head of Mokwa by Bida Traditional Emirate Council is not challengeable before this Court when evidence of such appointment of anybody to the throne was yet to be led at that stage thereby pre-empting the outcome of the substantive suit before the Court.
PARTICULARS OF ERROR
(a)It is the prerogative of the Bida Traditional Emirate Council to appoint any person to the office of the District Head when it becomes vacant a long time as he does so in accordance with the law and the tradition and custom of the law. Consequently, I have come to the conclusion that the appointment of the District Head of Mokwa by the Bida Traditional Emirate Council is not challengeable before this Court if it complies with the provisions of the existing law in force.
(b) The trial Judge has long concluded the case for the Defendants/Respondents which was not part of the issue/claim before him at that stage of application.
(c) That the holding or conclusion of the trial Judge indicate that the Appellants’ claim before lower Court was not maintainable even though no evidence was led before the Court at that stage.
GROUND EIGHT (8)
The trial Judge erred in law when he held that the submissions of the learned Counsel for the Defendants/Applicants was upheld and he goes further to adjourn the case to the 16th day of June, 2005 for hearing.
PARTICULARS OF FRROR
(1) The submissions of the learned Counsel for the Defendants/Applicants upheld.
The learned Counsel for the 1st and 2nd Respondents complained about Grounds 1, 3, 6 and 8.
A careful perusal of the said Grounds 1, 3, 6, an 8 complained about would reveal that the said Grounds are complaining of misapplication of the law to certain undisputed facts therefore they are-in my humble view Grounds of law.
Consequent upon the foregoing it is my view that, it is unnecessary for the Appellants to obtain the leave of either the lower Court or that of this Court before they could appeal.
This appeal is therefore competent.
In the circumstance, the Preliminary Objection fails and it is hereby dismissed.
Also at the hearing of this appeal the learned Counsel for the Appellants informed the Court that 3rd to 5th Respondents’ brief of argument was filed out of time and that the said brief was not signed by anybody He therefore urged this Court to discountenance the said brief of argument.
The learned Counsel for the 3rd to 5th Respondents agreed that the 3rd to 5th Respondent’s brief of argument was filed out of time, not signed by anybody and it was not regularized. But urged the Court not to discountenance the said brief of argument.
Order 17 rule 4 (1) of the Court of Appeal Rules 2007 states thus:-
The Respondent shall within thirty days of service of the brief for the Appellant on him file the Respondent’s brief which shall be duly endorsed with an address or addresses for service.
In this appeal, it is on record that the Appellants served the Appellant’s brief of argument on the 3rd to 5th Respondents on 17th day of November, 2008.
The 3rd to 5th Respondents did not file their Respondents’ brief of argument until 18/5/2009. And there was no application to regularize the position of the 3rd to 5th Respondents. Coupled with the above is the fact that the said brief of argument was not signed by anybody.
It is my humble view that the rules of Court are meant to be obeyed.
Legal Practitioners must be serious and pay due attention to their duty. The failure of the learned Counsel for the 3rd to 5th Respondents to file the Respondent’s brief of argument within time and also failure to sign same has rendered the brief incompetent.
In the circumstance, the said 3rd to 5th Respondents’ brief of argument is herby discountenanced.
I shall now proceed and deal with the appeal on its merit.
I have carefully examined the issues formulated for determination on behalf of the parties in this Appeal and it is my view that issue No.1 formulated on behalf of the 1st and 2nd Respondents is the fulcrum upon which this appeal rotates and it is capable of determining this appeal. Apart from that, it encapsulates issues 1, 2, and 3 formulated by learned Counsel for the Appellants. On the other hand, Issue No. 2 formulated on behalf of 1st and 2nd Respondents did not arise from any of the Grounds of Appeal filed by the Appellants. Therefore, I adopt the said Issue 1 formulated on behalf of the 1st and 2nd Respondents for the determination of this appeal.
This issue is set out as follows:-Whether the Ruling of the learned trial Court can be vitiated merely because it was delivered more than 90 days after Counsels’ addresses on the issues raised.
The learned Counsel for the Appellants in his own submissions referred to the address of the Respondents’ Counsel at the lower Court on his application for the Court to set down for hearing points of law contained in the parties pleadings. He also referred to his own address in reply to the application of the Respondents. He stated further that the application was taken on 15/6/2004 and Ruling was delivered on 3/5/2005 i.e. almost (11) eleven months after conclusion of addresses by Counsel.
He stated that the failure of the lower Court to deliver its ruling within three months from 15/6/2004 is contrary to the Provisions of Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria.
He submitted that the delivery of Ruling almost one year after conclusion of addresses has caused a miscarriage of Justice to the Appellants. This is because the trial Judge had lost all the impression he had of the case when he delivered his Ruling on 3/5/2005.
He relied on Are vs. Saliu (2005) 37 WRN Page 155 at 162.
Learned Counsel for the Appellant urged this Court to hold that the delay of eleven months by the trial Judge in delivering his Ruling has caused a miscarriage of Justice and to allow the appeal on that Ground.
The learned Counsel for the 1st and 2nd Respondents in his own submissions stated that the learned Counsel in this case addressed the lower Court on 15/6/2004 and the lower Court delivered its Ruling on 3/5/2005 after almost 11 months from the date of conclusion of addresses by all Counsel at the lower Court. He submitted that the Appellants could not establish the facts and circumstances where they suffered miscarriage of Justice or were able to draw the attention of the Court as to how miscarriage of Justice had been occasioned to them by the ruling of 3/5/2005.
He finally urged this Court to hold that the ruling did not occasion any miscarriage of Justice to the Appellants.
He relied on the following cases:-
– Are vs. Saliu (supra);
– Ilomuanya vs. Ilomuanya (2004) 39 WRN Page 27 at 35 ratio 12.
In this appeal under consideration, there is no dispute to the fact that all Counsel in this matter addressed the lower Court on 15/6/2004 but that Ruling was not delivered until 3/5/2005 i.e. after almost eleven (11) months from the date of conclusion of addresses of Counsel.
Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria states thus:-
(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.
2. ……………………………….
3. ………………………………..
4…………………………………
5. The decision of the Court shall not be set aside or treated as nullity solely on the ground of noncompliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of Justice by reason thereof.
6. ……………………………………
…………………………………….
…………………………………….
The delivery of Ruling in this matter after almost 11 months instead of the 3 months stipulated by the Constitution showed that Section 294 (1) of the Constitution has been breached. The pertinent question at this juncture is what are the consequences of the breach?
Where there has been an inordinate delay between the commencement of the taking of evidence, address of Counsel and the Judgment in the suit, an Appellate Court may, in an appropriate case interfere with and set aside any judgment given after such a delay. Such appropriate cases may include proceedings in which from their peculiar circumstance the appellate Court is satisfied that the trial Court had lost its impressions of the trial or much of the advantage which it might otherwise be supposed to have derived from seeing and hearing the witnesses and assessing their credibility.
See the following cases:-
– Egbo vs. Agbara (1997) 1 NWLR Part 481 at 293:
– Ekeri vs. Kimisede (1976) 9-10 S.C. Page 61:
– Kakarah vs. Imonikhe (1974) 4 S.C. Page 151.
Furthermore, it is not the law that once a delay in the delivery of Judgment is established, an appeal will be allowed and an order of retrial made. Although, undue delay between the reception of evidence of witnesses, addresses of Counsel in the Proceeding and the delivery of the Judgment thereto can ipso facto raise before an appellate Court a strong presumption that the trial Court could not have made use of its advantage of seeing and observing the demeanour of the witnesses who testified before it. But this presumption is neither a presumption of law nor is it irrefutable. In an appropriate case, the presumption may be rebutted in which case the delay complained of would not have occasioned any miscarriage of Justice and must consequently be regarded as inconsequential.
Therefore, delay per se is not sufficient reason for the interference with the Judgment of a trial Court, for the complaint to succeed, it has to be further established that the delay occasioned a miscarriage of Justice in that the trial Court did not take a proper advantage of having seen or heard witnesses testify This is fatal in that it may have affected the Court’s perception, appreciation and evaluation of the evidence and it could be easily seen that the trial Judge has lost the impression made on him by the witnesses, then in such a case there might be some fear of a possible miscarriage of Justice and then, but only then will an Appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect, it produced in the mind of the trial Judge.
In the instant case, it was a Ruling delivered in respect of applications filed before the Court that brought about this appeal.
The claim before the Court as contained in paragraph 41 (a) – (f) of the Statement of Claim are hereby set out as follows:-
(a) WHEREOF the Plaintiffs claim from the Defendants jointly and severally the following reliefs:
(a) A declaration that the practice and/or customs which excludes the 1st Plaintiff from those eligible for the appointment to the office of District Head of Mokwa is discriminatory.
(b) A declaration that the refusal by 1st Defendant to consider for recommendation the Candidature of the 1st Plaintiff for appointment to the office of District Head of Mokwa inspite of his endorsement for the office by those entitled to do so on the ground that he is not from one of the traditional houses and/or princes of Bida is inhuman and degrading.
(c) A declaration that the custom and/or practice which limit the appointment of persons to the office of District Head of Mokwa to Princess of Bida only is discriminatory and degrading to people indigenous to Mokwa District and be declared null and void as it violates the Provisions of African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10 Laws of Federation of Nigeria, 1990.
(d) A declaration that the 1st Plaintiff being a person indigenous to Mokwa District is entitled to be considered for appointment to the office of District Head of Mokwa in accordance with recognized, accepted and prevailing customs and practices of Mokwa District for appointment to the office of District Head of Mokwa.
(e) A declaration that the processes leading to the appointment of the 2nd Defendant by the 3rd and 4th Defendants as well as letters of appointment both dated 31st January, 2002 with Reference No. MLGCD/SEC/14/S.6/T. 1/14 and one dated 13th February, 2002 Reference No. BEC/23/VOL. 1/231 as well as those for assumption of duty addressed to Mokwa Local Government Council dated 13/2/2002 with Reference No. BEC/23/VOL. 1/235 are null and void and of no effect whatsoever as it contravenes the Provisions of African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10 Laws of Federation of Nigeria, 1990.
(f) A declaration that the customs and practice which authorizes or permits the imposition of an outsider as the District Head of Mokwa against the wishes of the people of Mokwa District is illegal, null and void as it contravenes the Provisions of African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10 Laws of Federation of Nigeria, 1990.’
The learned trial Judge while concluding the Ruling delivered on 3/5/2005 stated among others as follows:-
(a) Bida Emirate is a creation by law and can sue and be sued in accordance with Section 79(1) of the Local Government Law 2001 as amended. It is the prerogative of the Bida Traditional Emirate Council to appoint any person to the office of the District Head when it becomes vacant as long as he does so in accordance with the Law and Tradition consequently, I have come to the conclusion that the appointment of the District Head of Mokwa by the Bida Traditional Emirate Council is not challengeable before this Court if it complies with the provisions of the Existing Law in force, and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10 Laws of Federation of Nigeria, 1990 is not relevant to this case.
A careful examination of the claim before the Court vis the conclusion of the learned trial Judge in the Ruling quoted above showed that the Appellants have suffered miscarriage of Justice in that the lower Court has lost recollection and grasp of events that took place before the Court on 15/6/2004. It is clear that on 3/5/2005 i.e. about 11 months after Counsel’s submissions, the lower Court forgot the live issues in the case and delved into matters not canvassed. The Court then raised issues unconnected with those argued before it and finally proceeded to dispose of the substantive case during an Interlocutory Ruling.
The Ruling under consideration on pages 196 to 197 of the Record raised an issue suo motu whether the judiciary can interfere with the mode of appointment of District Heads by His Royal Highness The Court resolved the issue when it held: My answer is in the negative. This issue raised suo motu has disposed the main case between the parties because the Appellant’s claim as contained in the Amended Statement of Claim centred on whether or not His Highness, the 1st Respondent can appoint a District Head for the Mokwa Town without recourse to the wishes of the people of that town.
It is settled law that a Court shall not raise an issue suo motu and resolve it without hearing the parties on the matter. A Court has a duty to confine itself to the issues raised and or canvassed before it. See the case of:-
– A.G. Leventis Nig. Ltd vs. Akpu (2007) 46 WRN Page 1 at 15 ratio 10.
It is also trite that a Court shall not, at interlocutory stage, delve into the merit of the substantive matter. This is what the lower Court has done in the Ruling of 3/5/2005. See:-
– Fasheun vs. A.G. Federation (2006) 43 WRN Page 99.
Consequent upon the foregoing this issue is hereby resolved in favour of the Appellants and against the Respondents.
In the result, the Ruling of the lower Court in this matter delivered on 3/5/2005 is hereby set aside and its place, this suit is hereby sent back to the Chief Judge of the High Court of Niger State, Minna for re-assignment to another Judge who will hear the case on its merit without further delay.
There shall be no order as to costs.
MARY U. PETER-ODILI, J.C.A.I had the opportunity of reading in draft the judgment of my learned brother, Jimi Olukayode Bada J.C.A. I agree with the decision and the reasonings thereof. I abide all the consequential orders my brother made.
ABDU ABOKI, J.C.A.:I had a preview of the Lead Judgment of my brother JIMI OLUKAYODE BADA, J.C.A. just delivered. I agree entirely with his reasoning and conclusion reached in this Appeal. I abide by the consequential orders in this Judgment. I have nothing more to add.
Appearances
E. S. OBIDIGBOFor Appellant
AND
MOHAMMED NDAYAKO with him Y. L. MAHMUD for the 1st and 2nd
Respondents
MUHAMMED SANUSI for the 3rd to 5th RespondentsFor Respondent
