ENE ADIM OKON v. ROSELINE EKPO ITA
(2010)LCN/3783(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/C/08/09
RATIO
PROCEDURE: COUNSELS ADDRESS; WHAT IS THE PURPOSE OF FURTHER ADDRESS
The purpose of further address is to add something new to the address already concluded or to expatiate on certain issues in the address. It will be unhealthy technicality to equate re-adoption of address with further address as the former adds nothing to what is already before the Court. PER NWALI SYLVESTER NGWUTA, J.C.A.
APPEAL: MEANING OF AN APPEAL
An appeal is an invitation to the Higher Court to review the decision of the Lower Court to find out whether in a proper consideration of the facts placed before it and the Applicable Law that Court arrived at a correct decision. See Nwankpa v. Nwogu (2006) 2 NWLR (Pt 964) 251 at 263. PER NWALI SYLVESTER NGWUTA, J.C.A.
APPEAL: CAN AN APPELLATE COURT DEAL WITH THE APPEAL IF ALL MATERIALS RELIED ON BY THE TRIAL COURT ARE NOT PLACED BEFORE IT
The Appellate Court can hardly deal with the appeal if all the materials relied on by the trial Court are not placed before it. As if the trial Court anticipated a delay in delivering its judgment it made written notes upon which the judgment was later written. Absence of the note relied on by the Court in it judgment renders the judgment in this case a nullity particularly in view of the long delay in delivering the judgment. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
ENE ADIM OKON (SUBSTITUTED FOR NANCY BOCO DECEASED) Appellant(s)
AND
ROSELINE EKPO ITA Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of Itam J of the High Court of Justice, Cross River State Calabar Judicial Division. The judgment was delivered on 26th January 2009 in suit No HC/154/2005.
Endorsed on the writ of summons issued on 11th April 2005 and reproduced in paragraph 37 of the statement of claim is the Plaintiff’s claim for:
(a) A declaration that the Plaintiff is the beneficial owner of the property situate and lying at No 58/71 Palm Street Calabar.
(b) Perpetual injunction restraining the Defendant, her heirs, assign from trespassing and /or laying claim to the property situate and lying at No 58/71 Palm Street, Calabar.
(c) General damages of N1,000.000.00 (One Million Naira) against the defendant.
In her statement of defence the defendant denied the Plaintiff’s claim in its entirety and counter-claimed thus:
(i) A declaration that the counter-claimant is the bonafide owner of the property know as No 58/71 Palm Street Calabar.
(ii) An order directing the defendant to this counter-claim, her agent, assigns, privies to vacate forthwith from the counter-claimant’s property at No 58/71 palm Street Calabar.
(iii) An order directing the defendants to this counter-claim to return to the counter claimant the original copy of the survey plan of the property at No 58/71 Palm Street Calabar especially identified as survey plan of property at No 58/71 Palm Street Calabar especially identified as survey plan No ISH922 surveyed by E. Ekpenyond FNIS.
(iv) N2,000.000.000 (Two Million Naira) general damages against the defendant to this counter-claim.”
At the trial three witnesses testified for each side. The defendant closed its case on 30/7/2007 and the matter was thereafter adjourned to 6/8/07 for addresses of Counsel.
Learned Counsel for the parties filed and exchanged written addresses but for reasons not apparent on the face of the record the addresses were not adopted until 8/7/08, about one year after the close of the Defendant case. From 8/7/08 the matter was adjourned to 29/7/08 for judgment. The judgment was not delivered as scheduled and on 17/11/08 at the instance of Learned Counsel for the Plaintiff, Learned Counsel for the parties “readopted” their written addresses. The trial Court then adjourned to 11/12/08 for judgment. The judgment was finally delivered on 26th January 2009.
After a review of the evidence on both sides, a review that included a blistering denounciation directed at the Plaintiff (Dw1) and one of her witnesses (Pw2) the trial Court concluded:
“In the event, judgment is hereby entered in favour of the Plaintiff against the Defendant as follows:
1. The claim for declaration is granted in the terms sought in the writ of summons.
2. The claim for perpetual injunction is granted as per the terms sought in the writ of summons.
3. The claim for general damages is granted in the sum of N100.000.00 only with N10,000.00 costs. The counter -claim is dismissed in its entirely with N10.000.00 costs against the Defendant for lack of merit and frivolity.”
(See page 176 of the records)
Aggrieved by the judgment the Appellant (then Defendant) appealed on five grounds through her Counsel. From the five ground of Appeal Learned Counsel for the Appellant distilled four issues for determination in the Appellant’s brief.
The four issues are:
(1) Whether the delivery of judgment by the Lower Court more than 90 days after conclusion of evidence and addresses of Counsel occasioned a miscarriage of Justice this rendering the entire judgment a nullity. (Grounds of the notice of Appeal).
(2) Whether the Learned trial Judge property evaluated the evidence adduced by the parties at the trial (Grounds 2 and 3 of the notice of Appeal).
(3) Whether the Learned trial Judge rightly rejected the land agreement of 1945 sought to be tendered by the Defendant in proof of her title to the land in dispute. (Grounds of the Notice of Appeal).
(4) Whether the Learned trial Judge was not being speculative by relying on extraneous circumstances when he held he was relying on impression he had of the witnesses. (Grounds 5 of the notice of Appeal).
In his own brief of argument Learned Counsel for the Respondent stated:
For the purposes of this appeal the Respondent shall be adopting the grounds of appeal filed by the Appellant including the issues formulated therein, albeit the fact that the Respondent shall narrow the issues to three, namely:
1. Whether the delivery of judgment by the trial Court in this case after the conclusion of evidence and addresses of Counsel was in excess of ninety days and did occasion a miscarriage of justice thus rendering the entire judgment a nullity.
2. Whether the Learned trial judge rightly rejected the land agreement of 1945 sought to be tendered by the Defendant in proof of her title to the land in dispute.
3. Whether the trial Judge properly evaluated the evidence adduced by the parties at the trial.
A Respondent may adopt issues framed by the Appellant, he may modify the issues giving them a slant in favour of this case or he may frame his own issues provided the issues so framed or modified are traceable to the grounds of Appeal. Contrary to the position of Learned Counsel for the Respondent a Respondent cannot adopt the Appellant’s grounds of Appeal. He can Cross-appeal and frame his own grounds of Cross-appeal.
The resolution of issues 2-4 in the Appellant’s brief may lead to reversal of the judgment of the Court below but issue one if resolved in favour of the Appellant will nullify the judgment. I deem it proper to determine issue one first and its resolution will determine whether or not issues 2-4 will be resolved.
Addressing the issue in his brief Learned Counsel for the Appellant invoked S 294(1) of the Constitution of the Federation 1999 and impugned the judgment on the ground that it was delivered 18 months after the conclusion of the trial. He submitted that the delay had adverse effect on the perception, appreciation and evaluation of the evidence by the learned trial judge who he said had lost impressions made on him by the witnesses during the trial. Learned Counsel referred to page 152 of the records for the trial judge’s comment on DW1 and her evidence. He drew attention of the Court to specific findings of the trial court on the evidence of Dw1 and Dw2 and the judges finding with regards to suit No HC/MSC. 58/2001 and said that the findings and comments were not founded on the evidence before the trial court and this resulted to miscarriage of justice. He referred to “re-adoption” of written addresses on 17th November 2008 and argued that the re-adoption could not cure the fundamental defect and a breach of the Constitutional provision in the judgment. He relied on Oto v. Adojo (2003) 7 NWLR (Pt 820) 661-662 and urged the Court to declare the judgment a nullity.
In his brief Learned Counsel for the Respondent urged the Court to dismiss the issue as misconceived. He however stated that the defence concluded its case on 30/2/07 and after intermittent adjournments the judgment was delivered on 26/1/09. He said emphasis is placed on “and final address” in S. 294 (1) of the Constitution. He said the final addresses were made on 17/11/08 when Counsel adopted their addresses and the period 17/11/08 to 26/01/09 was within the period specified in S. 294 (1) of the Constitution. He said even if the judgment was delivered after 90 days S. 294(5) would save same from being declared a nullity. He relied on Olasope v. Babatayo (2005) ALL FWLR (Pt 272) 339 at 355 and Walter v. Skyll Nig Ltd (2000) FWLR (Pt 13) 2244 in his contention that a breach of S.294 (1) of the Constitution per se will not render the judgment a nullity. He referred to Dibiamaka vs Osakwe (1996) 3 NWLR (Pt 124) 471 and argued that the delay did not affect the trial judges perception, appreciation and evaluation of the evidence as it is not apparent in the case.
Learned Counsel referred to the evidence of Pw1, Pw2, Dw1 and Dw2 and said that the observations made by the trial Judge were based on and justified by, the evidence before the Court.
He argued that the Appellant has failed to disclose a miscarriage of justice and urged the Court not to interfere with the findings of fact by the trial Judge. He urged the Court to resolve issue one against the Appellant.
Evidence at the trial was concluded when the Defendant (now Appellants) closed her case on 30/7/07 and addresses were concluded at the adoption of Counsel’s written addresses on 8/2/08 about 22 days shy of one year after the conclusion of the evidence in the case. On 17/11/08 the trial Court recorded inter alia:
“Mgbe: The matter was billed for judgment but to avoid complications in future, we apply to re- adopt our written addresses as already exchanged. I beg to re-adopt
Anajulu: We also apply to readopt our written addresses. I beg to readopt
Court: In the event the case is hereby re-adjourned for judgment on 11th December 2008 after the sitting of the Appeal Tribunal Order accordingly…-”
See pages 164-165 of the records.
The judgment was not delivered on 11/12/08 as earlier scheduled. It was finally delivered on 26/1/09.
Learned Counsel for the Appellant invoked S. 294 (1) of the Constitution of the Federation 1999 and argued that notwithstanding the re-adoption of addresses of Counsel on 17/11/08 the judgment is a nullity having been delivered 18 months after the conclusion of evidence and addresses of Counsel in the case. On the other hand learned Counsel, for the Respondent sought refuge in the phrase “and finial addresses in S 294 (1) supra and argued that the 90 days in S. 294 (1) did not start running until the re-adoption of the addresses on 17/11/08. S. 294(1) of the Constitution provides: S.294(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…”
S.294(5) the decision of a Court shall not be set aside or treated as nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision in satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The spirit behind the ninety day period in S. 294(1) is to ensure that the decision of the Court is written and delivered when the facts of the case, the inference from the facts and the impression created by the witnesses are still fresh in the mind of the judge. Re-adoption of addresses in this case was not at the instance of the trial judge. Learned counsel for the respondents applied for the re-adoption. “To avoid complications in future”. The court did not ask the parties counsel to refresh its memory of the facts of the case. After the re-adoption the Court said:
-in the event, the case is hereby re-adjourned for judgment on 11th December 2008….”
There is no indication that the judgment was not already written and ready for delivery on 17/11/08. There is no basis to suggest that the re-adoption of the addresses had any impact on the judgment of the Court.
The purpose of further address is to add something new to the address already concluded or to expatiate on certain issues in the address. It will be unhealthy technicality to equate re-adoption of address with further address as the former adds nothing to what is already before the Court. In my humble view and without attempting to propound a general principle for its application the concept of re-adoption of address in this case cannot address the lapse of memory over one year from the conclusion of address in the case. It did not achieve the purpose for which learned counsel for the Respondent introduced it not the proceeding and the situation is not remedied by the fact that the Appellant’s counsel acquiesced in it. In effect and barring a technicality that is intended to defeat the purpose of S.294(1) of the Constitution. I hold that the ninety days period within which the judgment should have been delivered started to run at the conclusion or adoption of addresses on 8/7/08 and not on 17/11/08 when the addresses were re-adopted. I find nothing so arcane in the concept of re-adoption of written address and presentation of further addressees as to relief the Court of its dirty of strict compliance with S- 294 (1) of the Constitution. By its nature mere re-adoption of Counsel’s written addresses is a contrivance hatched by Learned Counsel for the Respondent and acquiesced in by the trial Court and Counsel for the Appellant, to circumvent the Constitutional provisions in S.294(1) of the Constitution. It had no effect on the judgment which from all indications in the records, was written before the re-adoption of the address. In the case of further address the effect, if any, is the same as the re-adoption of written addresses unless it is made before the writing of the judgment is completed and it adds relevant new points to the address originally delivered or expatiates a relevant part of same.
In any case though learned Counsel’s addresses are essential part of the adjudication process cases are not ordinarily decided on addresses but on credible evidence before the Court. A brilliant final address cannot make up for want of evidence to prove and establish or disprove and destroy points in issue. See Sanyaolu v. INEC & Or (1999) 7 NWLR (Pt 612) 600 Niger Construction Ltd v. Okugben (1987) 4 NWLR (Pt 67) 787. Obodo v. Olomu (1987) 3 NWLR (Pt 590 111, Ndu v. State (1990) 17 NWLR (Pt 164) 550.
Re-adoption of written addresses or presentation of further addresses without a showing that it refreshed the memory of the trial Judge in material particulars in writing the judgment is no more than a principle to evade the consequences of violation of S. 294(1) of the Constitution.
Learned Counsel for the Respondent contended that even if there was a delay the Appellant did not show there was a miscarriage of justice resulting from the delay. Learned Counsel for the Appellant had argued that the lapse of memory resulted in findings of fact not supported by the evidence before the Court.
He referred to the findings that Dw1 was distraught and confused, that the Dw1 denied that her name is Nancy, that the Dw1 was manipulated into laying false claims to the property in dispute, that the Dw1 is a complete imposter, that Dw2 is the evil genius who instigated the false claims etc, that the evidence of Dw3 was extra-ordinary and fraudulent, that Dw2 was pugnacious, quarrelsome argumentative with Counsel and that suit No HC/MSC/58/2001 was struck out for incompetency and submitted that the above findings were not based on the evidence before the Court. He said that the evaluation of the evidence did not show that the facts of the case and impressions created by the witnesses were still fresh in the mind of the trial Judge. In his argument to the contrary, Learned Counsel for the Respondent relied on a portion of the judgment of the Lower Court.
“But I think I must make it known that I keenly observed the witnesses in the witness box and took the trouble to comment by way of side notes on the record, my impression of them in the course of their testimony in Chief and Cross-examination or immediately thereafter. (Underlining mine) Pw1 and Pw2 gave their evidence in a calm, composed and apparently, honestly and truthfully despite vigorous cross-examination, their testimony on oaths stands unchallenged and uncontradicted at all. On the other hand the defendant (Dw1) gave the impression of being most distraught and confused as if being pushed or harassed from behind…….”
In believing one side against the other the Learned Trial Judge relied on findings of fact and comments based on the impression each witness created in his mind. In apparent distrust of human memory His Lordship took the precaution of recording his comments on the evidence and his impression of each witness on the side notes he made on the records at the time of testimony or immediately thereafter. The trial Court washed one side of the case with rose water, as it were and credited the other side with a monopoly of falsehood.
The case turned on the veracity vel non of the witnesses as contained in the notes made contemporaneous with the testimony of each witness or immediately thereafter and not on the evidence itself. The notes did not form parts of the record even though the trial Judge said at page 175 of the judgment that he:
“Keenly observed the witnesses in the witness box and took the trouble to comment by way of side notes on the record my impressions of them in the course of their testimony in Chief and Cross-examination or immediately thereafter” (Underlining mine for emphasis)
An appeal is an invitation to the Higher Court to review the decision of the Lower Court to find out whether in a proper consideration of the facts placed before it and the Applicable Law that Court arrived at a correct decision. See Nwankpa v. Nwogu (2006) 2 NWLR (Pt 964) 251 at 263. The Appellate Court can hardly deal with the appeal if all the materials relied on by the trial Court are not placed before it. As if the trial Court anticipated a delay in delivering its judgment it made written notes upon which the judgment was later written. Absence of the note relied on by the Court in it judgment renders the judgment in this case a nullity particularly in view of the long delay in delivering the judgment.
In my view the re-adoption of the addresses had no impact on the judgment there being no indication that the judgment was not already written as at the re-adoption of the addresses or that the mere re-adoption of the addresses contributed to aid the Judge in writing the judgment. Not only that the judgment was delivered more than one year after the addresses the notes the Court made on the veracity or falsity of the witnesses is not part of the records. Specifically the issue of who spoke the truth and who lied an oath and which ultimately determined the case was contained on notes not before this Court. Whether or not the comments upon the evidence and demeanor of the witnesses are in Constance with the evidence in the records of appeal cannot be determined without the note made upon which the veracity of one side was determined against the falsity of the other side of the case.
In my view the absence of the notes that played an important role in determining the veracity of falsity of the evidence before the trial Court was a direct consequence of non-compliance with S.294 (1) of the Constitution.
In deed the non-availability of the notes in the circumstances of this case is:
“A departure from the rules which permeate all judicial procedure as to make what happened not in the proper sense of the word, Judicial Procedure at all”
See Kalu Okorie Iroko & Ors v Ebe Ebe Uka & Anor (2002) 14 NWLR (Pt 786)195 at 238 Sc Nnajiofor v. Ukonu (1989) 4 NWLR (Pt 36) 505 at 516-517 SC. This is a miscarriage of justice. In Ojo v.Ogisanyin Anibire & Ors (2004) 10 NWLR (Pt.882) 571 at 583 S/C. the Apex Court on failure of justice held that what will constitute miscarriage of justice varies from case to case, depending on the facts and circumstances of each case. But to reach a conclusion that such a miscarriage of justice occurred it does not require a finding that a different result necessarily would have been reached in the proceedings affected by the miscarriage. It is enough that what has happened is not justice according to Law. See also Harrison Okonkwo & Anor v. Godwin Udoh (1997) 9 NWLR (Pt 517) 16 SC. It falls within the concept of failure or miscarriage of justice for a Court to base it decision on the veracity vel non of a witness or witnesses not on the evidence but on the note made on the evidence and impression of witnesses when the said notes appear not to exist or at least not parts of the records. The decision is prejudicial to or inconsistent, with the right of the Respondent in this case. See David Joshua & Anor v. The State (2000) 5 NWLR (Pt 658) 591 at 64 (CA), Oladija Sanusi v. Oreitan Ishola Ameyogun (1992) 4 NWLR (Pt 237) 527 (SC).
In my view the judgment based whether partially or entirely on notes which do not form parts of the records of the Lower Court is a nullity and I also declare. It is unnecessary to consider other issues raised in this appeal. A determination of the said issues (2-4) will be inappropriate in view of the order I will make herein. The saving provision in S.294 (5) of the Constitution is not applicable to the facts of this case.
It is my order that the case No HC/154/2005 be remitted to the Hon. The Chief Judge of Cross River State for trial de novo by a Judge of the State High Court other Itam. J. I further order that each parties bears its own costs.
JAAFARU MIKA’ILU, J.C.A.: I have read the draft of the lead judgment of my brother N.S. Ngwuta, JCA. I am in agreement with the reasons given in it and the conclusion reached. Retrial ordered. Each of the parties to bear it’s costs.
PROCLAMATION OF JUDGMENT OF JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, JCA (of blessed memory) participated in this Appeal and agreed in conference that the appeal should be allowed and the suit remitted to Hon. The Chief Judge of Cross River State for Trial de novo by a judge of the state high court other than Itam J. Pursuant to the proviso to section 294(2) of the Constitution I here by pronounce his opinion allow the appeal.
Appearances
Charles Duke Esq.
C. Anujulu Esq.For Appellant
AND
S.A. Mgbe Esq.;
J.C. Orim Esq.For Respondent
