ELDER SOLOMON ADELEYE ERUOLA & ORS v. PA ZACHEUS ADEJUMO OJO & ORS (2014)

ELDER SOLOMON ADELEYE ERUOLA & ORS v. PA ZACHEUS ADEJUMO OJO & ORS

(2014)LCN/7709(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of May, 2014

CA/I/33/2011

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE ARE SACROSANCT AND TO BE PREFERRED OVER ORAL EVIDENCE

I agree with the submission of the learned Counsel to the Respondents as stating the correct position of the law. It is not in all cases that documentary evidence are sacrosanct and to be preferred over oral evidence (See Umoru v. Oduogbo (1993) 6 NWLR (pt. 298) 217 @ 228, Allen v. Odubeko (1997) 5 NWLR (pt. 506) 638 @ 648). per. MONICA B. DONGBAN-MENSEM, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; THE EFFECT OF CONTRADICTORY EVIDENCE OF A WITNESS

It is the law that when the evidence of a witness is self-contradictory it requires no further challenge. It is called evidence against interest and the adversary is perfectly entitled to rely on such in advancing his own interest. per. MONICA B. DONGBAN-MENSEM, J.C.A.

LAND LAW: FAMILY LAND; THE EFFECT OF THE PARTITIONING OF A FAMILY LAND

It is a cardinal principle of law that once family land is partitioned the joint interest ceases and the member to whom such land has been given, becomes absolute owner of the land under native law and custom. See: BAMGBOSE v. OSHOKO (1988) 2 NWLR 509 AT 519; NZEKWU V. NZEKWU (1989) 2 NWLR 373 AT 441; BURAIMOH V. BAMGBOSE (1989) 6 SCNJ (PT. 1) 36 AT 52. per. MONICA B. DONGBAN-MENSEM, J.C.A.

PRACTICE AND PROCEDURE: INORDINATE DELAY; WHEN CAN A JUDGEMENT DELIVERED OUTSIDE THE STIPULATED TIME DESCRIBED AS INORDINATE DELAY

We therefore agree with the calculation and submission of the learned Counsel for the Respondents that judgment was delivered 21 days outside the 90 days stipulated by the Constitution. Further, the learned Counsel totally ignored the provisions of Section 294 (5) of the Constitution which states the condition for the invocation of the provision of Section 294 (1). The case of Dibiamaka & 2 Ors vs. Osakwe & Anor cited by the learned Counsel cannot by any stretch of imagination be one to be applied to the facts of this case. First and foremost, 21 days, which is the number of extra days cannot be described as inordinate delay. Even with an established facts of inordinate delay, it is required to be shown that the Judgment was “apparently and obviously affected by the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be EASILY SEEN he has LOST the impression made on him….” Indeed, the eminent and ageless jurist Oputa explained further that:
“….The emphasis is not the length of time simpliciter, but in the effect it produced in the mind of the trial Judge”!
“In the mind of the trial Judge”, declared my Lord Oputa JSC! Has the mind of the learned trial Judge been shown to have been in anyway affected by the Judgment rendered? It is instructive that the Judgment of the learned trial Judge is replete with references to the pleadings of the parties, exhibits, testimonies of the witnesses and a rich reliance on decided cases for guidance. This does not appear to be the product of a wane memory as the Appellant urges upon this Court.
In the case of OWOYEMI VS. ADEKOYA (2003) 12 SC (pt 1) P1 @ 21, the Supreme Court while dealing with a situation similar to the instant, held that:
“Appellant’s learned Counsel … wants it assumed that the delay of 15 days outside the 3 months led to some perverse findings of fact by the learned trial judge. I am afraid I find it difficult to accept such assumption….” per. MONICA B. DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

ELDER SOLOMON ADELEYE ERUOLA & ORS Appellant(s)

MONICA B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The facts of this appeal as presented in the brief of argument of the Respondents are compelling and are adopted with some modification and hereby reproduced in this Judgment for proper appreciation of the issues at stake.

At the trial Respondents were the Claimants while the Appellants were the Defendants. By the Writ of Summons and Statement of Claim dated the 10th day of May, 2005, the Respondents prayed the trial High Court for the grant of the following reliefs:
1. A declaration that the Olaokun family of Papanla, Ilaro having been held to be entitled to Statutory Right of Occupancy over and in respect of all that vast parcel of land, situate, lying and being at Itolu, Ilaro vide judgments of competent Courts of Law, the Defendants have no right to sell, lease or otherwise alienate or deal with the said land without the consent, authority, approval or concurrence of the head and other principal members of the said Olaokun family.
2. An order setting aside all sales, leases and/or any other form of alienation made by the Defendants in favour of unwary purchasers out of the Plaintiffs’ aforesaid land.

In the Alternative to (2) above
i. A declaration that the 1st Defendant (Eruola) is under a legal duty to render to the members of Olaokun Descendants Family an account of all monies he has collected from the unauthorized sales and transfer of the family land at Itolu, Ilaro.
ii. An order directing the 1st Defendant to render an account of all monies realized from the sales of Olaokun family land at Itolu, Ilaro and to present to the Court the relevant Bank Statements duly certified by the Union Bank Plc, Ilaro and/or any other Bank(s) if any, into which the monies have been lodged.
3. An order of mandatory injunction compelling the 1st Defendant to hand over to the Plaintiffs all documents of the Olaokun family relating to and concerning the aforesaid land which documents he has retained in his custody inspite of Plaintiffs consistent demands for same.
4. A declaration that the purported Power of Attorney made by the 1st Defendant in August, 2004 or thereabout, which is now the subject of Police investigation, is illegal, invalid, null and void, same having been procured by fraud and deceit perpetrated by the said Defendant the particulars of which will be supplied later in the Statement of Claim.
5. A declaration that the document titled ‘A’ declaration as to the unanimous decision taken by the entire members of Olaokun Descendants family, ETC” dated 31st January, 2005, and sworn to at the High Court Registry, Ilaro, wherein it was purported that the family had ‘agreed to re-confirm the appointment of Elder S. A. Eruola as the President and Trustee of Olaokun Descendants family’ is fraudulent, illegal, invalid, ineffectual, null and void.
6. An order setting aside the aforesaid Power of Attorney and the Document dated 31st January, 2005, respectively.
7. Perpetual injunction restraining the 1st Defendant from further parading himself as the patron/trustee of Olaokun Descendants family
8. Perpetual injunction restraining the Defendants, their agents, servants and privies from selling, leasing or otherwise alienating or dealing with the aforesaid Olaokun family land without the consent, authority or approval of the head and principal members of the said family.

On the 10th of August 2005, the Appellants filed a Statement of Defence dated the 9th of August. Afterward, the Respondents filed a Reply to the Statement of Defence on the 30th of September, 2005. The Reply was later amended by the order of the Court granted on the 16th of November 2007 and is dated the 27th of November 2007.

Trial of the case began on the 17th day of January, 2007. The Respondents called 6 witnesses (PW1-PW6). The Appellants called 3 witnesses (DW1-DW3). The Exhibits tendered are as follows:
A list of exhibits were tendered marked variously as Exhibit A-Q
Exhibit A – Power of Attorney purportedly donated to the 1st Appellant dated 31st January 2005 and registered as No. 27/27/616 of the Lands Registry in the office at Abeokuta.
Exhibit B, C-C6 – Minutes of meetings of Olaokun family.
Exhibit D- Judgment dated 31st July 1998 in Suit No. HCL/52/92 confirming ownership of Olaokun family land.
Exhibit E – Judgment of the Court of Appeal in Appeal No. CA/I/99/99.
Exhibit F- Survey Plan No. OG 3641
Exhibit F1- Clearer copy of Survey Plan No. OG3641
Exhibit G-G9- Copies of receipts of sale of Olaokun family land illegally sold by the 1st Appellant.
Exhibit H-H1- Layout Plan receipts.
Exhibit J- Layout Plan
Exhibits K- Subpoena dated 2nd April, 2009.
Exhibit L- Counter Affidavit sworn to on 1st June, 2005 by the 1st Appellant.
Exhibit M- Purported statement of Chief Lasisi Adetona to the Police confirming the 1st Appellant as Head of Olaokun family.
Exhibit N- Letter addressed to the Surveyor General, Ministry of Lands Ogun State.
Exhibit O- Letter of appeal by Olaokun family to Ogun State Government.
Exhibit P- Letter dated 7th January, 2003 addressed to the 1st Appellant.
Exhibit Q- Document titled “The Declaration”.

At the close of hearing on the 12th of January, 2010, parties filed their Written Addresses within 21 days. On the 8th of July, 2010, the Court adjourned the matter for judgment to the 6th of October, 2010. The Court did not however sit as scheduled on the ground of the ill health of the trial judge. Judgment was eventually delivered on the 27th of October, 2010.

It is evident that it was an intra-family imbroglio that led to the commencement of the suit culminating into this appeal as the 1st and 2nd Appellant and the Respondents are members of the same family – the Olaokun family of Papanla, Ilaro, Ogun State. The 3rd Appellant is a survey assistant who works for the 1st Appellant.

The family owns a vast parcel of land situate at Itolu, Ilaro, Ogun State. The family’s ownership had been confirmed by the Judgment of the Ogun State High Court delivered on the 17th of December, 1988 in consolidated suit Nos. HCT/52/92 and HCT/19/93 – CHIEF M. O. AKINYODE & ORS V. PETERS OMONIYI; PETER OMONIYI & ORS. VS. CHIEF M. O. AKINYODE & ORS. The aforesaid judgments were affirmed by the decision of this Honourable Court in Appeal No. CA/I/99/99 – PETER OMONIYI & ORS VS. CHIEF MOSES AKINYODE & ORS vide the judgment delivered on the 1st of December, 2003

The Ogun State Government once acquired a part of Olaokun’s family land and when the family realized that some portions of its acquired land were not utilized by the said government they applied for the excision of same. The family nominated four of its member to wit: Pa Elijah Ojo, Mr. Samuel Olajuwon Taiwo (the 2nd Respondent), Mr. Adesiyan Edun (the 3rd Respondent) and Solomon Adeleye Eruola (the 1st Appellant) to facilitate the procurement of the excision.

However, after the above mentioned excision, the 1st Appellant started dealing with the family land in a manner inimical to the general interest of other members of the family. The 1st Appellant also marginalized the other members who the family appointed with him (the 1st appellant) to manage the family land. The 1st Appellant went ahead to alienate portions of the land without the concurrence of the head and other principal members of Olaokun family. The family made a number of efforts to call the 1st Appellant to order but his obduracy led to the commencement of the suit that culminated in this appeal.

When the appeal was called up for hearing on the 10th of February, 2014, the Respondent who had raised a preliminary objection failed to argue same before the appeal was argued. The objection was therefore deemed abandoned. The argument is however incorporated in the brief of argument of the Respondent. Ex-facie, there is nothing which renders the preliminary Objection incompetent and thereby divesting this Court of the jurisdiction to consider the objection raised. We cannot therefore look the other way and ignore the objection raised which could very well touch on jurisdiction.

The Respondent argued the Preliminary Objection in paragraph 6-9 of the brief. Two points are raised to wit:- that ground five (5) of the grounds of appeal, which is the ground in contention does not arise from the Judgment of the Court and that no issues were formulated on the said ground. It is my humble opinion that the two points of complain cancel out each other and leaves no room for complaints.

It is obvious that the learned Counsel for the Appellant realized his error and refrained from formulating an issue on ground five. This opinion of mine is confirmed by the fact that the Appellant filed no reply brief in response to the preliminary objection. In other words, the said ground has been abandoned and needs not consume any more of precious time. (See the case of IGWE V. A.I.C.E (1994) 8 NWLR (PT. 363) 459 AT 473.

Adebayo Awolusi Esq. of learned Counsel for the Appellant adopted the Appellant’s brief of argument dated 14th day of November, 2013 filed 28th November, 2013 but deemed filed 10th February, 2014 Counsel raised and argued 3 issues for determination as follows:-
1. Whether delivery of the judgment dated 27 October, 2010 outside the mandatory period as provided for in Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 occasioned miscarriage of justice to the detriment of the appellant.
2. Whether on the available materials and the state of the law, the trial Court was right to hold that the 1st defendant is not the Head of Olaokun family and thus cannot transact any business on behalf of Olaokun family in that capacity,
3. Whether on the state of the pleadings and the state of the law the trial court was right to hold that the 1st defendant failed to prove his assertion that the Olaokun family land was partitioned.

O. O. Ojutalayo Esq. of learned Counsel adopted and relied on the Respondent’s brief of argument dated 9th day of January, 2014 and filed on the same day but deemed filed on the 10th February, 2014. Counsel raised and argued 2 issues for determination as follows:-
1. Whether the delivery of judgment of the lower court on the 27th day of October, 2010 occasioned a miscarriage of justice on the Appellant and ought to be set aside merely because it was delivered 21 days outside the period of 90 days prescribed by the 1999 Constitution of Nigeria. (Ground 1)
2. On the strength of both oral and documentary evidence presented by the contending parties before the lower court, whether the court below was not right to hold that the 1st Appellant was not the head of Olaokun family and consequently invalidated all actions taken by him in that capacity, (Grounds 2, 3 & 4).

This appeal will be determined on the three issues raised by the Appellant, but in the reverse order with issues two and three coming first. Issue one will be addressed last.

It can be inferred from the issues raised by both the Appellants and Respondents that the bone of contention is the position of the head of Olaokun’s family and the management of the family land.

Issue 2
The Appellant points to Exhibits M, A, others as instrument of his headship of the Olaokun family. Appellant contends that the Respondents who were educated principal members of the Olaokun family claimed that they did not authorize the making of Exhibit A while PW1 admitted signing Exhibit A. Exhibit A is an alleged Power of Attorney, Appellant submitted further that sixteen (16) out of seventeen (17) principal members actually signed the power of attorney which document is therefore binding on them.

Appellant maintains that Exhibit M through which he was appointed head of Olaokun’s family was not effectively contested by the Respondents except for the un-established allegation of fraud. That fraud must be specifically pleaded by the Respondent on their pleadings. (See ANYANWU V. UZOWUAKA (2009) 13 NWLR (PT 1159) 445 @ 468 A-B; 472 D-F; EGHAREVBA V. OMGIE (2009) 18 NWLR (pt. 173) 229 @ 327 B-G).

The Appellant submits further that Exhibits A, L and O being documents tendered by the Respondents speak for themselves portraying the Respondents witnesses as literate and are accordingly bound by the contents of the documents signed by them. A plea of non est factum cannot therefore avail them. The learned Counsel argued that documentary evidence cannot be impeached by oral evidence therefore the learned trial Judge erred by preferring the oral evidence of the Respondents. (See OGHOYONYE V. OGHOYONYE (2010) 3 NWLR (Pt. 1182) 564 @ 583, see also ANYANWU VS. UZOWUAKA (supra), EGHAREVBA V. OMGIE (supra)).

It is however the contention of the Respondents that Pa Zaccheaus Ojo was the one appointed as the head of the family in the year 2000, five years before the commencement of the suit against the Appellant. The claim of the Appellant to his unanimous selection to the headship of the Olaokun family is therefore out rightly rejected by the Respondents. That a person who is alleged to have willingly gave up his headship cannot turn around to challenge the supposed beneficiary in the court.

The Respondents challenge the evidential value of Exhibit A and L by which the 1st Appellant claimed the family ratified his headship by raising a plea of non est factum and thereby denied executing the exhibits or granting any power of attorney before a Commissioner of Oath. PW1 however maintains that he did sign a plain paper for the purpose of authorizing the 1st Appellant to help the family procure certificate of occupancy in respect of the excised land. And this piece of evidence was not challenged – pg. 20 of the record.

The contention of the Respondent is that Exhibit A was not signed by PW1 and that PW4 and PW5 denied signing the power of attorney. (See pg. 250 of the records). To this end the case of the Respondent is that their purported collective signatures was meant for the procurement of Certificate of Occupancy, which was misapplied therefore fraud is evident.

Respondents equally submit that Exhibits A, L and Q are incapable of vesting any legal benefits on the 1st Appellant. Exhibits A and L are alleged powers of attorney with columns that they were executed by a Commissioner of Oath. It has however been shown that no Commissioner of Oath actually executed the purported power of attorney which therefore amount to no power. See page 54 of the records:
“1st Appellant “The power of attorney was prepared by the family lawyer, Mr. Rahman in Abeokuta. After preparing the document he handed it over to me. I took it to the meeting where everybody signed after reading it”.

Exhibit Q which is a declaration was equally said to be prepared before the Commissioner of Oath but this too was contradicted by the Appellant who declared that:- “I commissioned the making of the document. It was prepared by Mr. Kehinde of Sango Otta. I took it to the meeting where the signatories signed.” (See page 55 of the records).

The Respondent urged the court to hold that Exhibits A, L, Q were fraudulently procured and as such were not capable of investing the Appellant with the headship of Olaokun family. The Respondents justified the use of oral evidence to impeach documentary evidence by citing Exhibits B, M, C-C6 as the materials which impeach the veracity of the witnesses of the Appellant particularly the evidence of DW3. It is the assertion of the Respondents that documents which are tainted and are of questionable origin are not sacrosanct evidence and can be impeached by credible oral evidence. That in such circumstances particularly in the instant appeal documents are use as hangers to either affirm or impeach oral evidence.

Such is the nature of the evidence of the Appellant and the learned trial Judge did not fail to see through the schemes of the Appellant in his defence before the court.

To this end, the evidence adduced during the course of trial is essential to the fact that the Respondent pleaded fraud by relying on a plea of non est factum. In the light of all these the claim of the Appellant both of the headship of the Olaokun family and the authority to represent the family in land matters are all wishful thinking of the Appellant. Upon appraising the evidence of the parties the learned trial Judge correctly found that the headship of the Olaokun family rest with 1st Respondent. In Dakolo & Ors v. Rewane-Dakolo & Ors (2011) LPELR-915 (SC), the Supreme Court held that
“When a trial court which observed and heard witnesses who testified before it, has evaluated the evidence of such witnesses, based on the credibility of those Appellant’s witnesses and drawn conclusion thereon, an Appellate court cannot interfere with same unless it is demonstrated that such conclusions are perverse and not supported by unchallenged credible evidence. The Appellants having failed to show that any of the findings of the learned trial judge was perverse there was nothing upon which the specific findings of fact of the learned trial judge could be disturbed by the court below – Galadima JSC 1868-1880.

The declaration made as to (Exhibit D), was equally challenged by the Respondent. From the record, the Appellant had no concrete answers to this question and the trial court was not oblivious of these facts.
The trial court rightly ascribed probative value to the evidence adduced before it and has fallen into no disabling error to affect the decision.

Issue 3
The Appellant’s barter is that partition of family land was not pleaded but the learned trial court made an issue of it and made a finding thereon in favour of the Respondents. The learned Counsel however conceded that partition arose from the evidence of the 1st Defendant.

Upon the authority of Oladipo v. Moba LGA (2010) 5 NWLR (pt. 1186) 117 -178 etc and Lamurde Local Government v. Karka (2010) 10 NWLR (Pt. 1203) 574 @ 591, the learned Counsel submits that the learned trial Judge erred in failing to ignore the evidence of the 1st Defendant which was an issue not pleaded.

The Respondent retorted by asserting that since issue had been joined on the fact of partition, it is a misconception on the part of the Appellant to challenge the decision on this issue. Cites BAMIGBOYE vs. OLANREWAJU (1991) 4 NWLR (pt. 184) 145 at 155.

The case of BAMIGBOYE vs. OLANREWAJU (supra) presents an instructive case study:-
The facts are, that the position of the Odofin became vacant upon the demise of the chieftaincy title holder. The tussle on who succeeds him unfolded.

The Respondent at the trial court sued the Appellant for declaration that the plaintiff is the rightful successor to the late Odofin Aran and for injunction etc.
Respondent maintains, by his statement of claim, that it was the turn of one Odosare Ile Adure of Okesan to produce the next Odofin as it is rotational between 3 families. The 1st Appellant was presented to the 3rd Appellant by the 2nd Appellant and this was without the consent of the Okesan family. The presentation was also without compliance with the native law and custom of the Omuaran. After evidence, the trial court made some findings and preferred the evidence of the Appellant, and dismissed the Respondents claim. Appellant appealed to Court of Appeal, the appeal added a fourth issue to the 3 issues formulated, the Court allowed the appeal. Dissatisfied the Appellant appealed to Supreme Court, which frowned at the decision allowing the fourth issue by the Court of Appeal; but allowed the appeal affirming the argument that issues joined are not inadmissible because such evidence is not supported by the pleading of the party. The logic is that no party is taken aback by the issue, no surprises which is the bedrock of pleadings to put the other party on notice of what to expect and prepare for. (Emphasis mine)

BAMGBOSE V. OLANREWAJU also held that once a trial court has made a finding of fact, it is no more within the competence of the appellate court to interfere with those finding’s except on exceptional circumstances particularly where the decision is not perverse not being supported by the facts placed before the court or presenting an injurious wrong interpretation of the law.
No such error and injustice was cited by the Appellant in challenging the decision of the learned trial Judge.

The Respondents pleaded facts in support of their assertion of the mismanagement of the family property by the Appellant. Paragraphs 11, 12, 13 and 16, particularly itemized the details of the alleged irritable conduct of the Appellant.
Pages 6-8 of the record particularly show various, untoward actions of the Appellant on the said property which include alleged illegal sales of portions out of the family land and Exhibit G-G9 exhibited are the receipts issued to that effect.
The Respondent maintains that the issue of the partitioning raised by the Appellant was deliberately raised to avail the Appellant as an easy way out when confronted with the fact of illegal sale of family land. That no such partition ever took place.
The learned trial Judge masterly addressed the issue of partition and I crave the indulgence to reproduce that portion of the Judgment anon (page 48 of the record):-
“Now partition in contra distinction to allotement, is a division of co-ownership. See Balogun vs. Balogun (1943) 9 WACA 78 @ 82; Owoade v. Omitola & Ors (1998) 5 SCNJ 1 @ 12. It is a cardinal principle of law that once family land is partitioned the joint interest ceases and the member to whom such land has been given, becomes absolute owner of the land under native law and custom. See: BAMGBOSE v. OSHOKO (1988) 2 NWLR 509 AT 519; NZEKWU V. NZEKWU (1989) 2 NWLR 373 AT 441; BURAIMOH V. BAMGBOSE (1989) 6 SCNJ (PT. 1) 36 AT 52. “…Unfortunately, this Court is not convinced by the uncorroborated testimony of the 1st Defendant that the land was partitioned as no material evidence was adduced in proof of the assertion.
How it was partitioned, the size given to his father and/or other family members. Whether it was partitioned per stock or individually, or material facts to prove the assertion, but which the 1st defendant did not adduce evidence of. In the circumstance, I hold that the 1st Defendant has failed to prove his assertion that the land was partitioned and that he sold portions from his father’s land and not from the Olaokun Family land.”
I am unable to fault this finding of the learned trial Judge.

Both parties averred in their respective pleadings that the subject matter of litigation is a family land. It is alleged that the Appellant had manipulated himself into a position of authority by which status he misappropriated family land. Family land pertains to collective ownership of a common land by a group of people -all members of the same family.
The sale of such land must therefore be by the consensus of family members or their authorized representative.
The Appellant has been shown not to be such representative.

It was further the contention of the learned Counsel that the Respondent, did not pray to be declared the owners of the Olaokun family land. The learned trial Judge therefore erred in law by declaring the Respondents as the rightful owners of the Olaokun family land.
Indeed the Respondents at paragraph 6.21 at page 16 of the Respondents brief of argument attested to the family status of the land where it was stated that
“the crux of this appeal is that the Appellants adversely dealt with the common inheritance of the Olaokun’s family without the authority of the head and other principal members of that family. There were sufficient averments that the res is a family property. At page 4 of their statement of Claim, the Respondent pleaded thus:
the Plaintiffs’ family owns a large tract of land at Itolu in Ilaro which ownership has been confirmed by the Ogun State High Court vide judgment delivered on 7th December, 1998 in consolidated Suit No: HCT/52/92 and HT/19/93-CHIEF M. O. AKIYODE & ORS vs PETER OMONIYI; PETER OMONIYI & ORS V. CHIEF AKIODE & ORS”.
I say no more on the issue.

Issue One
On the provisions of Section 294 (1) of the Federal Republic of Nigeria, 1999 (as amended) and the case of Dibiamaka & 2 Ors v. Osakwe & Anor. (1989) 3 NWLR PT 107 Pg 101 @ 114, the learned Counsel for the Appellant submits that the Appellant has suffered a miscarriage of justice. The reason for this assertion is that the judgment of the Ogun State High Court which was delivered on the 27th day of October, 2010 came nine (9) months after the final address which was taken on the 8th day of July, 2010. The submission of the learned Counsel is reproduced for the ease of reference and clarity:
Paragraph 4.02 @ page 3 of the Appellant’s brief of argument, the learned Counsel wrote thus
“4.02 it is clear from the records that:
(i) Evidence adduced before the learned trial Judge was concluded on 12th January, 2010.
(ii) Counsel adopted their respective final written addresses on 8th July, 2010.
(iii) Judgment was delivered on 27th October, 2010
(iv) The learned trial Judge delivered judgment 9 months after conclusion of evidence.
Also cited in support of this alleged inordinate delay in the case of Dahiru v. Kamali (2005) 9 NWLR PT 929 p. 8 @ 38.

The learned Counsel for the Respondent finds the “argument of the Appellant as …lacking in legal efficacy…” (Paragraph 5.03 @ page 9 of the Respondents brief of argument). The learned Counsel drew attention to the fact that the Judgment was delivered 21 days outside the 90 days prescribed period and not as presented by the Appellant. It is further the submission of the learned Counsel that the judgment of a Court would not be set aside only on mere allegation that it was delivered out of the prescribed 3 months period as Section 294 (1) of the 1999 Constitution must be read in conjunction with Section 294 (5) of the said Constitution and the latter provides as follows:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice.”

Counsel maintains that by the provision of Section 294 (5), the era when a decision of a Court would be set aside merely on the ground of non-compliance with 90 days rule is gone hence, the case of DIBIAMAKA & 2 ORS V. OSAKWE & ANOR (1989) 13 NWLR (PT. 107) cited by the Appellants is totally inapplicable in this appeal as same was decided in line with the 1979 Constitution where a similar provision of Section 294 (5) of the 1999 Constitution was unavailable.

That the Appellant also failed to show how the delivery of the judgment outside the (90) ninety days prescribed period occasioned any miscarriage of justice to them. (Refers Owoyemi v. Adekoya (2003) 12 S.C. (Pt. 1) @ 21. Also commended in the case of Dahiru vs. Kamale (supra) which the learned Counsel says infact supports the Respondent’s against the Appellant’s case.

Purporting to have a solid ground in the provisions of Section 294 (1) of the 1999 Constitution of the FRN, the learned Counsel for the Appellant went to town. The learned Counsel declared in paragraph 4.03 of the appellant’s brief of argument that:
(i) The trial Court had lost the impression made on it by the witnesses.
(ii) The trial Court did not consider the evidence of the witnesses dispassionately; and thereby,
(iii) The trial Court fell into error in consequence of which the appellants suffered miscarriage of justice.
All for the sole reason that the learned trial Judge delivered the Judgment on the 27th October, 2010 when final addresses were taken on the 8th July, 2010.

Now let us go real mathematical here!
Plaintiffs’ case opened on 17th day of January, 2007 (pg. 18 of the record). Defence case closed on 12th day of January, 2010 (pg. 55 of the record.) Written address was argued on 1st day of June, 2010 (pg. 85 of the record), And the final addresses were concluded on 8th day of July, 2010 (pg. 86 of the record).
Judgment was delivered on 27th October, 2010 (pg. 87 of the record)

Number of days between the time trial was concluded, on the 12th day of January, 2010 and conclusion of the argument of written addresses – on the 8th day of July, 2010 is a total of 177 days.

Number of days between date of adoption of final written addresses and judgment – 8th of July 2010 – 27th October, 2010 is a total of 112 days. For the avoidance of doubt, we make a graphic presentation as follows: from the date of final address to the date judgment was delivered!
By the records of appeal and submission of the learned Counsel, the months in contention are July, August, September and October, 2010.

JULY 8 – OCTOBER 27, 2010
July 2010
M    T    W    T    F    S    S
1    2    3    4
5    6    7    8    9    10    11
12    13    14    15    16    17    18
19    20    21    22    23    24    25
26    27    28    29    30    31       –    8th – 31st = 24 days

August 2010
M    T    W    T    F    S    S
1
2    3    4    5    6    7    8
9    10    11    12    13    14    15
16    17    18    19    20    21    22
23    24    25    26    27    28    29
30    31                   –    1st – 31st = 31 days

September 2010
M    T    W    T    F    S    S
1    2    3    4    5
6    7    8    9    10    11    12
13    14    15    16    17    18    19
20    21    22    23    24    25    26
27    28    29    30             –    1st – 30th = 30 days

October 2010
M    T    W    T    F    S    S
1    2    3
4    5    6    7    8    9    10
11     12     13     14     15     16     17
18     19     20     21     22     23     24
25     26     27     28     29     30     31    –    1st – 27th = 27 days
(Note: source of Calendar culled from the internet)
Sub Total Number of Days: –
24 days of July
31 days of August
30 days of September
27 days of October
Grand Total number of days 112 days. less
90 days constitutional prescription
21 days! Less than one month!!

Unless the learned counsel for the Appellants used a different calendar other than the usual Gregorian calendar, it is incomprehensible how one hundred and twelve days can transmute to nine months!

Was the learned Counsel for the Appellant truly mistaken in his calculation or was he exaggerating the facts for mischief purposes? The learned Counsel for the Respondent puts the extra days of twenty-one (21) as against the nine months of the Appellant. The learned Counsel did not however state which calendar he used in the calculation. We therefore agree with the calculation and submission of the learned Counsel for the Respondents that judgment was delivered 21 days outside the 90 days stipulated by the Constitution. Further, the learned Counsel totally ignored the provisions of Section 294 (5) of the Constitution which states the condition for the invocation of the provision of Section 294 (1). The case of Dibiamaka & 2 Ors vs. Osakwe & Anor cited by the learned Counsel cannot by any stretch of imagination be one to be applied to the facts of this case. First and foremost, 21 days, which is the number of extra days cannot be described as inordinate delay. Even with an established facts of inordinate delay, it is required to be shown that the Judgment was “apparently and obviously affected by the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be EASILY SEEN he has LOST the impression made on him….” Indeed, the eminent and ageless jurist Oputa explained further that:
“….The emphasis is not the length of time simpliciter, but in the effect it produced in the mind of the trial Judge”!
“In the mind of the trial Judge”, declared my Lord Oputa JSC! Has the mind of the learned trial Judge been shown to have been in anyway affected by the Judgment rendered? It is instructive that the Judgment of the learned trial Judge is replete with references to the pleadings of the parties, exhibits, testimonies of the witnesses and a rich reliance on decided cases for guidance. This does not appear to be the product of a wane memory as the Appellant urges upon this Court.
In the case of OWOYEMI VS. ADEKOYA (2003) 12 SC (pt 1) P1 @ 21, the Supreme Court while dealing with a situation similar to the instant, held that:
“Appellant’s learned Counsel … wants it assumed that the delay of 15 days outside the 3 months led to some perverse findings of fact by the learned trial judge. I am afraid I find it difficult to accept such assumption….”
Had the learned Counsel or the Appellant heeded the caution of the Apex Court, this issue would not have arisen. The ultimate Court recommended thus:
“… the true position now is that a party should not just go on appeal merely on the ground that the judgment he wants to set aside was given outside the three months’ period. He will have to fight the appeal on all known grounds which can render the judgment unsustainable … an appellant with good grounds of appeal may have no need at all to canvass a ground on non-compliance with three months’ period.”
Indeed, only a scavenger goes out dangling the sword of non-compliance with Section 294 (1) like the sword of Damocles. An Appellant with solid errors placed on a terra firme will not go crying foul over 21 days when ill-health was cited as a reason for the delay in delivering the judgment.

The industry displayed in the hearing and determination of the suit clearly belies a deliberate delay. Honour demands that good work should be appreciated even if the outcome does not favour one!
I find this appeal as totally lacking in merit and I hereby affirm the decision of Ogun State High Court Coram M. A. Dipeolu (J) delivered on the 27th of October, 2010. This appeal is dismissed.
A cost of N50, 000.00 is hereby ordered to the Respondents and against the Appellants.
It is hereby so ordered.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment of my learned brother M. B. Dongban-Mensem, J.C.A. affirming the decision of the lower court in holding that the appeal is lacking in merit. I adopt the reasoning therein in dismissing the appeal. I abide by the order made as to costs in the leading judgment.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, M. B. Dongban-Mensem, JCA afforded me the opportunity to read in advance, the judgment just delivered.

My learned brother succinctly and admirably considered all the pertinent issues that cropped up for determination in this appeal. I agree with his reasoning and conclusions thereon. I have nothing different to say that will add value to this appeal. Accordingly, I also hold that this appeal lacks merit. It is hereby dismissed.
I abide by the order on costs.

Appearances

Adebayo Awolusi Esq.For Appellant

AND

O. O. Ojutalayo Esq. with A. A. Isiolaotan and I. O. AkinfenwaFor Respondent