FEMI SOETAN & ORS. V. STELIZ LIMITED & ANOR.
(2010)LCN/3969(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/IL/36/2007
RATIO
WRITTEN AGREEMENT: EXEPTION TO THE RULE THAT WRITTEN AGREEMENT CAN NOT BE VARIED,ALTERED OR ADDED TO BY ENTRINSIC EVIDENCE
…It is very clear that the rule relied upon by the appellant that a written agreement cannot be altered, varied or added to by an extrinsic evidence is only a general rule under Section 132 (1) of the evidence Act (Cap. 112) 1990. There is a proviso under the rule which permits oral evidence to prove, amongst others “the existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them – see proviso (b). There is a plethora of authorities on this proviso to the general rule apart from the ones cited by the parties herein. These include: UBN LTD. VS. OZIGI (1994) 3 NWLR (PT. 333) 385; EKWUBUFE VS. WAYRUE (1989) 5 NWLR (PT.122) 422; RCC (NIG.) LTD VS. EDONWONYI (2003) 4 NWLR (PT. 811) 513; OMEGA BANK (NIG.) PLC VS. OBC LTD (2002) 16 NWLR (PT. 794) 483; SUMMIT FINANCE CO. LTD. VS. IRON BABA & SONS LTD (2003) 17 NWLR (PT. 848) 89 (AT 124-125 PER ADAMU, JCA). PER DALHATU ADAMU (OFR), JCA
DELIVERY OF COURT JUDGMENTS: WHETHER ANY COURT JUDGMENT DELIVERED OUTSIDE THE PRESCRIBED TIME MUST BE SET ASIDE OR TREATED AS A NULLITY
…on the issue of the trial Court delivering its judgment outside the three months statutory period under or in accordance with the provision of section 294 (1) of the 1999 Constitution. The section in paragraph (1) provides: “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 and furnish all parties to the case or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”. The above provision is usually read together with the new amendment incorporated under subsection (5) which reads as follows: “(5) The decision of a Court shall not be set aside or treated as a 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 is satisfied that a party complaining has suffered a miscarriage of justice.” Now the position in case of delay (of 3 months) between the final address and the judgment of the Court is that such judgment will not be set aside or treated as a nullity, it is shown by the complainant that it has led to a miscarriage of justice. This amendment to the 1979 Constitution was initially affected by the Constitution (suspension and Modification) Decree No. 17 (1985) before its incorporation in subsection (5) of the 1999 Constitution. Commenting on it Mohammed JCA (as he then was) said in WALTER VS. SKYLL (NIG) LTD. (2001) 3 NWLR (PT. 701) 438 AT P. 474 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 the section unless the appellate Court is satisfied that the party complaining of such noncompliance has suffered a miscarriage of justice by reason thereof. In effect iIn effect it is no longer the law that mere delivery of judgment later than three months after conclusion of evidence and final address of counsel automatically renders the judgment a nullity. The onus is now on the party complaining to satisfy the Court that the failure of the trial Court to deliver its judgment within three months from the date of the conclusions of evidence and final address as required under section 258 (1) now 294 (1) had occasioned a miscarriage of justice – IFEZUE VS. MBADUGHA (1984) 1 SCNLR 427; EGWU VS. EGWU (1995) NWLR (PT. 396) 493”. In DAHIRU VS. KAMALE (2005) 9 NWLR (PT. 929) 8 AT 38; OGBUAGU JCA (as he then was) commented on the provision approving the dictum of OWOYEMI VS. ADEKOYA & 2 ORS (2003) 18 NWLR (PT. 852) 307 that: “It is not right to say that by the said amendment, the onus was shifted to the appellant who relied on the non-Compliance to show a miscarriage of justice. That it may be said that the burden has now been placed on him and not shifted to him”. PER DALHATU ADAMU (OFR), JCA
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
Between
1. FEMI SOETAN
2. SAMUEL OBIAGWU
3. SAMMEX INVESTMENT NIG. LTD. Appellant(s)
AND
1. STELIZ LIMITED
2. ELIZABETH O. OZUA Respondent(s)
DALHATU ADAMU (OFR), JCA, (Delivering the Leading Judgment): The Respondents herein (Plaintiffs in the court below) by a Writ of Summons dated 7/2/2002 claimed against the Appellants (as Defendants) the following:
“1. A Declaration that the Defendants breached the Sales Agreement between them and the 1st Plaintiff for the importation, supply, installation and maintenance of a stainless automatic water filling, sealing and packaging machine system for the sum of N1.7 million.
2. The sum of N1.03 Million plus 15% interest per annum thereof with effect from 4th December 2000.
3. 10% interest per annum on the judgment sum until fully liquidated.
4. (4500,000.00 as general damages against the 1st Defendant for unlawful taking photographs of 2nd Plaintiff without her knowledge, consent or authority and an order of court impounding the photographs and negatives for destruction.”
On the above claim, the parties filed and exchanged their respective pleadings. The Defendants filed their Amended Statement of Defence and Counter-Claim pursuant to the order of the trial court counterclaiming the following reliefs:
“(i) An Order of specific performance of the contract entered into between the Plaintiffs and the 1st and 2nd Defendants on the 4th – 12th December 2000 – directing the said 1st and 2nd Plaintiffs jointly and severally to pay the Defendants the sum of N700,000.00 (Seven Hundred Thousand Naira) being balance sum owed the Defendants, 21% interest from 4th December 2002 till judgment and 10% interest until judgment sum is fully liquidated.
(ii) The sum of N1 million Naira being general damages for the inconveniences and embarrassment caused the Defendants by the Plaintiffs.”
The Plaintiffs then filed a reply to the Defendants’ counter-claim above dated on 20/12/2002.
In proof of their claim the Plaintiffs called three witnesses and tendered five exhibits while the Defendants called two witnesses and tendered photographs and negatives which were referred in evidence and were so marked. With the pleadings completed, the parties filed and exchanged their final written addresses which were adopted on 16/4/2005. The court delivered its judgment in favour of the Plaintiffs on 22/5/2006.
Dissatisfied with the judgment the Defendants/Appellants appealed against it by their notice of appeal to this court. They applied by a motion dated 14/12/2007 and sought for a stay of execution of the judgment in this court which was granted conditionally on 24/1/2008 ordering the judgment sum of N1,130,000.00 to be deposited into an interest yielding account with First Bank Plc, Ilorin. The sum has since been deposited.
In accordance with the Rules of this court, the parties hereto have filed their respective briefs of arguments which they have adopted at the hearing of the appeal. The Appellants’ brief is dated 3/7/2009 and filed on the same date. In addition to the above brief the Appellants also filed an additional brief of arguments dated 9th day of February 2010 and filed on the same date. Lastly for the Appellants they also filed an Appellants’ reply to the Respondents’ brief dated and filed on 5/10/2009. This last brief was filed out of time but was regularized by the order of this court granted on 7/10/2009.
On the Respondents part, they filed their Respondents’ brief of arguments dated on 4th August, 2009 and filed on 5th August, 2009. They also filed the Respondents’ reply to the Appellants’ additional brief of arguments dated 18th February 2010 and filed on 19th February, 2010 (within time).
In the Appellants main brief of arguments, the Appellants formulated the following four (4) issues for determination of the appeal, viz:
“1. Whether the trial court was right to have gone outside the agreement between the parties?
2. Whether the trial court was right in awarding damages against the Defendants for taking the second Plaintiffs photograph without her consent when the pictures were not before the court.
3. Whether the trial court delivery of judgment one year after the parties adopted their final addresses did not occasion miscarriage of justice on the Appellants.
4. Whether the trial court was right in awarding judgment against the Appellants jointly and severally when the first and second Appellants are agents of the third Appellant?”
The above four issues formulated by the Appellants are also adopted by the Respondents.
In their arguments under the 1st issue, the Appellants stated the trite law that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract, or contradict the terms of the written instrument – moreso where it was not shown that the contract was not fraudulently made. Reference is made to the Plaintiffs’ evidence and pleadings that the 1st Plaintiff and 3rd Defendant entered into a contractual agreement via an agreement dated 4th December, 2000 – see paragraph 7 of the Statement of Claim dated 11/12/2001 at page 6 of the record and also the evidence of PW1 at page 68 of the record where PW1 stated as follows:
“He made an agreement that he prepared by himself and I then paid the One Million through standard Bank. The agreement prepared by the Defendant was signed by both of us and by consultant representative signed by witnesses.”
The above evidence was also corroborated by DW1 and DW2 who also maintained that there was a written agreement signed by the parties after it was read by them. The said agreement merely limited the obligation of the 3rd Defendant to the “supply and installation of automatic filling, sealing and packaging machine which they would maintain for a year” was admitted in evidence and marked Exhibit 5.
The appellants cited section 132(1) of the Evidence Act; LARMIE VS. D.P.M.S. LTD (2005) 18 NWLR (PT.985) 438 AT 459 (PER ONNONGHEN, JSC); SPDC (NIG.) LTD VS. EMEHURU (2007) 5 NWLR (PT.1027) 350 AT 366; S.E. CO. LTD VS. NBCI (2006) 7 NWLR (PT.978) 198 AT 312. It is submitted that the learned trial judge made an error in the present case when he held in his judgment (at page 3 thereof – see page 97 of the record) thus:
“A close look at Exhibit 5 which is the agreement made by the parties, it can be seen that only the price is on it and the fact that it is an auto sealing and packaging machine and the price and time of submission. I am of the view that there must have been more explanation by the parties as to the type and make of the machine to be supplied. From a reasonable mans angle one cannot just give money to a supplier to supply just anything there has to be specification for even arriving at a price, I have come to a conclusion that there are apparent inadequacies and short comings m Exhibit 5 which must have been orally agreed upon by the two parties and which is not contained in Exhibit 5.”
See also YADIS (NIG.) LTD VS. GNIC LTD (2007) 14 NWLR (PT.1055) 548 AT 610; AGBAREH & 1 OR VS. DR. ANTHONY MINNA (2008) 1 SC (PT.III) P.88 AT 112. It is emphasized that the Defendants did not plead non est factum or fraud in the present case rather she stated in her evidence that she signed an agreement.
Reference is also made to the evidence of PW1 where under cross examination she answered as follows:
“It is true this is the agreement between the defendant and I. It is true it is not specified in Exhibit 5 that the machine would be imported and new but we discussed it verbally with him that it had to be new and imported as on two previous occasions we had verbal agreement and it was followed.”
The authority of LEWIS VS. UBA PLC. (2006) 1 NWLR (PT.962) 546 AT 564 is cited and relied upon where both M.D. Mohammed and Aderemi, JJCA held that where an agreement has been reduced to writing S.13(1) of the Evidence forbids a Defendant from reneging the conditions imposed on him by the written agreement signed by him.
We are finally urged to follow the line of the above authorities in resolving the 1st issue in the negative and to hold that the parties hereto are bound by the contents of their written agreement (Exhibit 5) and nothing more.
The respondents address on the 1st issue is contained in their main brief of arguments dated 4th and filed on 5th August, 2009 (covering pages 6-12 thereof). The respondents first admitted the trite law mentioned by the appellants that a written agreement of the parties cannot be varied, contradicted etc by extrinsic evidence but such variation etc can only be done in writing. The respondents however said that there are exceptions to the above general rule as provided for under Section 132 (1) (a) – (e); (2) and (3) of the Evidence Act. The most appropriate exception which is relevant to the present appeal is in paragraph (b) of Section 132 (1) of the Act which provides as follows:
“The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties intend the documents to be a complete and final statement of the whole of the transaction between them.”
It is stated in the brief that a cursory look at Exhibit 5 leaves no one in doubt that the document was hurriedly prepared and was incomplete in several respects for a contract involving the sum of One Million, Seven Hundred Thousand Naira. It is further submitted that Exhibit 5 by any standard does not qualify as an agreement. It is at best a memorandum of understanding lacking the ingredients of a contract transaction for the procurement and supply of an automatic pure water production machine with N1.7 Million. It is asserted that all that is contained in Exhibit 5 by way of description is “auto filling, sealing and packaging system” and no more. The agreement in Exhibit 5 was also prepared on the letter heading paper of the 3rd Appellant. Reference is also made to the evidence of PW1 (2nd respondent) at page 68 of the record which is as follows:
“He made an agreement that he prepare (sic) by himself and I then paid the One Million Naira through Standard Bank i.e. Standard Trust Bank by bank transfer. The agreement prepared by the defendant was signed by both of us and by consultant representative signed by witnesses.”
The respondents then relied on other pieces of evidence and submitted that having regard to the pieces of evidence of the parties and the surrounding circumstances of the contract, it is obvious that the contents of Exhibit 5 do not fully represent the agreement reached between the parties on the type of machine to be supplied and the source. It is submitted that the paragraph (b) of Section 132(1) of the Evidence Act readily applies the exception to this case. This court is therefore urged to hold that this is an appropriate case where the exception to the general rule that contract in writing cannot be varied orally is applicable. This is moreso when the evidence adduced by the witnesses merely supplied the missing links and is not inconsistent with the contents of Exhibit 5 – see the cases of EKPECHI VS. OWHONDA (1998) 3 NWLR (PT. 543) 618 AT 642; AND ABIGAIL MAJEKODUNMI VS. NATIONAL BANK LTD (1978) 3 SC (REPRINT) 82 cited in support of the above submissions of the respondents. We are also urged to uphold the findings and conclusions reached by the learned trial judge on the issue at pages 97-98 of the record and to resolve the issue in favour of the respondents.
The appellants have also filed a reply brief dated and filed on 5/10/2009 in which they replied to the above submissions of the respondents. On the respondents’ submissions that the machine (the subject matter of the case) was to be sourced from France, the appellant urges us to discountenance the submission and the authorities cited therein. Reference is made to the evidence of DW1 and DW2 which were overlooked by the trial judge. In particular DW1 (at page 87 of the record) stated as follows:
“When I came to Ilorin we sat down, agreed that I will give them a machine that I have been supplying to other people that I can maintain for a period of one year. The agreement was reduced to writing for the supply of the machine. The machine I supplied was not rusted and was not a scrap. We never agreed I will supply the machine from France. I would not have agreed to supply it within 3 weeks as it would take not less than 3 months to do that….”
It is further submitted that the respondents in their brief failed to identify any paragraph of the statement of claim which has not been specifically denied by the defendant. A perusal of the statement of defence and counter-claim contained on pages 19-22 of the record shows that all the averments in the statement of claim (at pages 6-8 of the record) were specifically denied by the defendants. Consequently, it is argued that all the cases cited by the respondents on the point do not apply to this case and therefore are not relevant. We are finally urged to hold so.
From the above submissions in the two main brief and the reply brief, it is very clear that the rule relied upon by the appellant that a written agreement cannot be altered, varied or added to by an extrinsic evidence is only a general rule under Section 132 (1) of the evidence Act (Cap. 112) 1990. There is a proviso under the rule which permits oral evidence to prove, amongst others “the existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them – see proviso (b). There is a plethora of authorities on this proviso to the general rule apart from the ones cited by the parties herein. These include: UBN LTD. VS. OZIGI (1994) 3 NWLR (PT. 333) 385; EKWUBUFE VS. WAYRUE (1989) 5 NWLR (PT.122) 422; RCC (NIG.) LTD VS. EDONWONYI (2003) 4 NWLR (PT. 811) 513; OMEGA BANK (NIG.) PLC VS. OBC LTD (2002) 16 NWLR (PT. 794) 483; SUMMIT FINANCE CO. LTD. VS. IRON BABA & SONS LTD (2003) 17 NWLR (PT. 848) 89 (AT 124-125 PER ADAMU, JCA). Applying the above proviso to the present case, I will readily agree with and accept the submissions of the respondent that from the circumstance of the present case and the shallow agreement prepared hurriedly will leave no one in doubt that the said agreement was incomplete in several respects that it does not qualify as an agreement. This is why it was rightly described by the respondents as a “memorandum of understanding” and lacking in the essential ingredients of a valid contact transaction. There is also the evidence of the parties which show that the contents of Exhibit 5 do not show or full represent the agreement reached by the parties. See for example the evidence of DW1 (under cross examination at page 89 of the record). The witness stated that –
“It is not written in Exhibit 5 that it will be source (sic) in Nigeria and it was true that it will be source (sic) in France.”
Although the appellants have filed a reply brief (as reproduced above) the said appellants have not denied in their reply brief, that the oral evidence herein fall within the exception to the general rule under the proviso (b) to Section 132 (1). They only argued on the issue of whether the machine was to be supplied from Nigeria or France which as we have seen has been debunked in the above testimony of DW1 under cross-examination at page 89. This contradicts the evidence of the same witness relied upon by the appellant. In any case, the fact remains that the oral testimonies of the witnesses under the circumstances of the present case were relevant and they were covered by the exception to the general rule under the proviso (b) to Section 132 (1) of the Evidence Act. This should be more so in view of the scanty nature of the agreement reached in Exhibit 5 and the fact that the parties entered into a gentleman’s agreement in trust based on their earlier transactions which were successfully carried out. Issue 1 should therefore be resolved in the positive and against the appellants.
On the 2nd issue which is on whether the trial court was right in awarding damages against the defendants for taking the plaintiffs’ photographs without her consent the appellants submit that a trial court must not rely on a document not tendered as an Exhibit nor on a document that it has itself rejected. Reference is made to pages 87-88 of the record that photographs were taken showing the installation of the machine and the training of the staff of the 1st plaintiff were tendered in evident by the defence counsel and were objected to on the grounds of proper custody which was upheld in the ruling of the learned trial judge who rejected the photographs and the negatives in evidence. However despite this rejection the learned trial judge still made them the basis of her award of N100,000.00 general damages to the 2nd plaintiff without her knowledge when the said pictures/photographs were not before the court. See NIGERIAN PORTS PLC VS. BPP LTD (2006) 7 NWLR (PT.979) 323 relied upon by the appellant on his above submission. The appellants therefore urged us to regard the evidence as lacking in credibility and reliability and as having no basis in the award of damages against them and to resolve the issue in favour of the appellants. We are also urged to hold that the trial judge erred in awarding N100,000.00 against the appellants and in favour of the 2nd respondent for unlawfully taking her pictures without her knowledge.
In the respondents’ brief, issues 2 and 3 are argued together. Under the relevant portion (at pages 19-20), the respondents urges us to sustain the award. It is argued that the trial court properly awarded general damages of N100,000.00 against the appellants for wrongfully and unlawfully taking photographs of the 2nd respondent without her consent. The appellants’ argument that the award is not supported by the evidence is ridiculous. The rejection of the photographs and document do not erase or diminish the oral evidence of DW1 that the photographs were taken. We are finally urged to discountenance the arguments of the learned counsel for the appellants and the case law authority cited by him.
From the above submissions, it is easy for me to agree with the submission of the appellants that the trial court should not have awarded the general damages after rejecting the photographs and the negatives. Since the plaintiff/respondent wanted to rely on the photographs and negatives in making her claim for general damages, it was her duty to ensure that they were admitted in evidence. I therefore agree with the appellants that a trial or appellate court must not rely on a document not tendered as an exhibit before it. It must not also rely on the contents of a document it had itself rejected as an exhibit as such a rejected document goes to no issue and is irrelevant. See ACB LTD. VS. GWAGWADA (1994) 5 NWLR (PT. 342) 25; OLADELE VS. AROMOLARAN II (1996) 6 NWLR (PT. 453) 180; UBN VS. OZIGI (1994) 3 NWLR (PT. 333) 385 AND NIGERIA PORTS PLC (SUPRA) cited by the appellants. Nothing is said on this issue in the appellants’ reply brief (referred to earlier).
In the circumstances, I will not hesitate to answer the 2nd issue of the appellants in the negative and to resolve it in favour of the said appellants.
Under the 3rd issue (i.e. issue three) which is on whether the delivery of the judgment by the trial court one year after the parties adopted their final addresses did not occasion miscarriage of justice, the facts of the delivery of the judgment is given in the appellants’ brief that the plaintiffs closed their case on 30/6/2004 while the defendants closed theirs on 14/3/2005 (see page 92 of the record of appeal). The written addresses of the parties were filed but were adopted under the Kwara State (Civil Procedure) Rules 2005 on the 16/5/2005 and the judgment was delivered on 2/5/2006 (about 1 year thereafter). It is then submitted by the appellants that delivering the judgment after a whole year after the adoption of the final addresses has occasioned a miscarriage of justice on the appellants. It is pointed out in the brief that from the totality of the evidence given at the trial, the documents tendered and the review of evidence done by the trial court one would not be left in doubt that the trial judge had lost touch of the evidence adduced and the demeanour of the witnesses as at the time the judgment was delivered – see PAM & ANR VS. MOHAMMED & ANR (2008) 4-6 SC P.83; AND JOSHUA VS. THE STATE (2000) 5 NWLR (PT. 650) 591.
Part of the miscarriage of justice committed by the learned trial judge is said to be in the wrong appraisal of the evidence of DW1 and DW2 that the plaintiff caused the Nigerian Police to arrest both of them from Jos and lock them up at Ilorin for some days (see pages 89-91 of the record) yet the learned trial judge held on pages 2 and 3 of the judgment (pages 96 and 97 of the record) that –
“The Defendants in their statement of defence claimed damages of the sum of N1 million but did not lead any evidence or claim to it in the cause of evidence of DW1 and DW2 neither was there any cross-examination on it and it is therefore rightfully assumed that it has been abandoned by the defendants and pleading cannot be taken as evidence….”
The above is said to be a very poor review of the evidence of the witnesses and it is enough to convince this Honourable court that miscarriage of justice was made against the appellants due to the delay in the delivery of judgment outside the statutory period – see OLALEYE VS. ADEJUMO (2005) 10 NWLR (PT. 933) 429 AT P.460 cited in support of the above submission of the appellants. We are finally urged to resolve the 3rd issue in favour of the appellants and hold that the one year delay between the adoption of the final address and the delivery of judgment has occasioned a miscarriage of justice against the said appellants.
In their main brief in which they purported to argue issues 2 and 3 together, they did not address on the 3rd issue as per the appellants submissions above. This is why this court recalled the parties to readdress it on issue 3. Consequently both the appellants and the respondents filed additional briefs with the sanction of this court wherein they re-addressed issue 3. The appellants’ additional brief was dated 9/2/2010 and filed on the same date while the respondents reply to the appellants’ additional brief is dated 18th and filed on 19/2/2010.
In the appellants’ additional brief (supra) they referred us to the case of DAHIRU VS. KAMALE (2005) 9 NWLR (PT.929) 8 AT 35-40 where this court held as follows:
“If inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial courts perception, appreciation and evaluation of the evidence so that it can be easily seen that he 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.”
Reference is then made to the evidence of DW1 which was ignored by the learned trial judge (see page 28 of the record of appeal) where he stated that –
“the machine I supplied was not rusted and was not a scrap. We never agreed that I will supply the machine from France. I would not have agreed to supply it within three (3) weeks as it will not have taken less than 3 months to do that.”
Despite the above evidence, the trial court merely considered the evidence of the plaintiffs’ witnesses and concluded in his judgment (at page 97 of the record) thus:
“I have come to a conclusion that there are inadequacies and short-comings in Exhibit 5 which must have been orally agreed upon by the two parties and which is not contained in Exhibit 5.”
It is submitted by the appellants that the above shows a very strong presumption that the trial court could not have made use of its advantage of seeing and observing the demeanor of the witnesses who testified before it as he would have lost the impression of the trial due to the prolonged and undue one year delay – see the case of EGBO & ORS VS. AGBARA (1997) NWLR (PT. 481) 314.
It is further submitted that the test for fair hearing and justice is the impression of a reasonable man who was present at the trial whether or not justice has been done in the case – see PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1 AT P.48. We are finally urged to hold that the one year delay in the present case occasioned a miscarriage of justice.
In the respondents’ reply to the appellants additional brief of argument, dated 18th and filed on 19/2/2010 the respondents stated that on 26/1/2010 when the appeal came up for further address, this Honourable Court directed the counsel to address the Court on whether there has been a miscarriage of justice in this appeal and to address more on the instances of misapplication, misappropriation or misapplication of justice as held by NIKI TOBI JCA (as he then was) in PAMS & ANOR VS. MOHAMMED (supra) cited by the appellant in his brief of arguments,. The respondents then complied with the directive of the Court. They stated that by virtue of section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, Courts are enjoined to deliver their judgments in writing within three months after the conclusion of evidence and final addresses. However under subsection (5) of the section, it is provided that:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of a 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 is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.
It is submitted by the respondents that in view of the above provision the Appellants in the present case have failed woefully to show that the delay in the delivery of judgment by the trial Court has occasioned any miscarriage of justice since the onus lies on them to substantiate that allegation – See WALTER VS. SKYLL (NIG) LTD. 2001) 3 NWLR (PT. 701) 483 AT 448 – 449 where the Court held that:
“The onus is now on the party complaining to satisfy the Court that non-delivery of the judgment within three months from the date of the conclusion of evidence and final addresses as required by section 294(1) of the 1999 Constitution had occasioned a miscarriage of justice”.
It is further submitted that the Appellants have failed to establish that the trial Court lost touch of the evidence and the demeanor of the witnesses as they alleged in their additional brief. The short evidence of DW 1 reproduced at page 3 was duly considered by the trial judge at pages 97 – 98 of the record. It is stated by the respondents that the decision of the trial Court was mainly hinged on the construction and interpretation of Exhibit 5 and the existing relationship between the 1st Appellant and the Respondents. It is finally submitted that there is no miscarriage of justice in the present case – See STATE VS. USMAN (2005) NWLR (PT. 906) 80 AT P. 99 where this Court gave the definition of miscarriage of justice to establish the case of the party complaining a delay in the delivery of judgment – See also OGUNDELE VS. FASU (1999) 12 NWLR (PT. 632) 662 cited in support of the above submissions. It is submitted further that the trial Court was well abreast with all the evidence adduced before it as much of the evidence adduced at the trial was documentary evidence – See STATE VS. USMAN (supra), and EHORIS VS. KIMISEDE (1976) 9 – 10 SC 61 where the Supreme Court held that miscarriage of justice does not arise merely because the evidence was not properly evaluated by the trial judge but it must be shown that the facts were not properly remembered, summarized or perceived by the learned trial judge in the judgment and since the bulk of evidence adduced by the parties was documentary, the perception of which can hardly be affected by the lapse of time in the delivery of judgment.
It is also submitted that most of the cases cited by the appellants in their additional brief are inapposite. The case of PAM & ANR. VS. MOHAMMED cited by the appellant is said to be distinguishable from the facts of the present case. See also DAHIRU VS. KAMALA (2005) 9 NWLR (PT. 929) 8; and OWOYEMI VS. ADEKOYE (2003) 12 SCNJ 131 ATP. 153-156.
After considering the above submissions of the parties on the issue of the delivery of judgment after the constitutional period of three months period in the present case. I am of the view or opinion that the case of PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1 AT P. 67 – 68 was cited by the appellant towards the end of his address on the above issue. I have however on reading the judgment in PAM VS. MOHAMMED (SUPRA) found that it is not having anything to do with the issue of delayed judgment. Rather the dictum of TOBI JSC is dealing with the definition of reasonable time under section 36 of the 1999 Constitution on fair hearing. His Lordship stated in the dictum that “A reasonable time is also a moderately and practically possible time within which a Court or tribunal could complete a trial and pronounce its decision. See EFFIOM VS. STATE (1995) 1 NWLR (PT. 373) 507. Reasonable time means the period of time which, in the search for justice does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable person to be done. See ARIORI VS. ELEMO (1983) 1 SCNLR 1; ATEJIOYE VS. AYENI (1998) 6 NWLR (PT. 552) 132.
It is therefore clear that the above authority of PAM VS. MOHAMMED (supra) was quoted out of con and is not therefore applicable to the present case on the issue of the trial Court delivering its judgment outside the three months statutory period under or in accordance with the provision of section 294 (1) of the 1999 Constitution. The section in paragraph (1) provides:
“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 and furnish all parties to the case or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
The above provision is usually read together with the new amendment incorporated under subsection (5) which reads as follows:
“(5) The decision of a Court shall not be set aside or treated as a 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 is satisfied that a party complaining has suffered a miscarriage of justice.”
Now the position in case of delay (of 3 months) between the final address and the judgment of the Court is that such judgment will not be set aside or treated as a nullity, it is shown by the complainant that it has led to a miscarriage of justice. This amendment to the 1979 Constitution was initially affected by the Constitution (suspension and Modification) Decree No. 17 (1985) before its incorporation in subsection (5) of the 1999 Constitution. Commenting on it Mohammed JCA (as he then was) said in WALTER VS. SKYLL (NIG) LTD. (2001) 3 NWLR (PT. 701) 438 AT P. 474 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 the section unless the appellate Court is satisfied that the party complaining of such noncompliance has suffered a miscarriage of justice by reason thereof. In effect it is no longer the law that mere delivery of judgment later than three months after conclusion of evidence and final address of counsel automatically renders the judgment a nullity. The onus is now on the party complaining to satisfy the Court that the failure of the trial Court to deliver its judgment within three months from the date of the conclusions of evidence and final address as required under section 258 (1) now 294 (1) had occasioned a miscarriage of justice – IFEZUE VS. MBADUGHA (1984) 1 SCNLR 427; EGWU VS. EGWU (1995) NWLR (PT. 396) 493″.
In DAHIRU VS. KAMALE (2005) 9 NWLR (PT. 929) 8 AT 38; OGBUAGU JCA (as he then was) commented on the provision approving the dictum of OWOYEMI VS. ADEKOYA & 2 ORS (2003) 18 NWLR (PT. 852) 307 that:
“It is not right to say that by the said amendment, the onus was shifted to the appellant who relied on the non-Compliance to show a miscarriage of justice. That it may be said that the burden has now been placed on him and not shifted to him “.
Applying the above constitutional provision with its amendment to the present case, I am more inclined to agree with the respondents’ submissions. The appellants in the present case have failed to show or prove that the delay in the delivery of judgment by the trial Court has caused a miscarriage of justice to them. They have failed to substantiate their allegation or to show that the trial Court had lost touch of the evidence and the demeanor of the witnesses. The evidence of DW1 has been duly considered by the trial Court as I have earlier stated when dealing with the 2nd ‘issue above. Consequently the 3rd issue of the appellants should also be answered in the positive and resolved against the said appellants and in favour of the respondents.
Issue 4 of the appellants’ brief is on whether the trial Court was right in awarding its judgment against the appellants jointly and severally when the first and second appellants are agents of the third appellant. In arguing the issue, the appellant stated the trite law that an agent who was acting on behalf of a known and disclosed principal incurs no liability because the act of the agent is that of his principal. Reference is therefore made to paragraphs 4 and 5 of the statement of claim of the plaintiff and to the evidence of PW1 (at page 9 of the record) where the 1st and 2nd defendants were said to be employees of the 3rd defendant – See the case of BAYERO VS. MAINASARA & SONS LTD. (2006) 8 NWLR (PT. 982) 391 AT 431.
The evidence of PW 2 is also referred to which infers that the appellant only as an agent of the disclosed principal and he cannot therefore be held as personally responsible or liable for any act or omission of the Principal (the 3rd appellant) who was well known to the respondents – See the cases of VASSILEV VS. PAAS INDUSTRIES NIG. LTD. (2000) 12 NWLR (PT. 681) 347 AT 353; and QUA STEEL PRODUCTS LTD.VS. BASSEY (1992) 5 NWLR (PT. 239) 67.
It is stated that there is no dispute on the capacity of the 1st and 2nd appellants in entering the agreement on behalf of the 3rd appellant. They are not therefore personally liable for any default committed by the principal. Consequently, it is argued that the learned trial judge wrongly entered judgment against the 1st and 2nd appellants and this is said to occasion a miscarriage of justice against them – see AYODELE JAMES VS. MID MOTORS (NIG.) LTD (1978) 11-12 SC 31 AT 68 and YESUFU VS. KUPPER INTERNATIONAL (1996) 4 SCNJ 40 AT 50-51 cited and relied upon by the appellants on the above submission. The appellants also submitted that it is trite that a limited liability company is a juristic person who can sue and be sued in its corporate name. It is said that it was therefore unnecessary to join the 1st and 2nd appellants as codefendants at the trial court. We are finally urged to strike out the names of the 1st and 2nd defendants from the suit and any order made by the trial court meant to bind or affect them and to set aside such order and allow this appeal under this 4th issue.
In the respondents’ brief, the 4th issue is answered from page 20 thereof (paragraph 2.18-2.21). It is argued by the respondents that on the strength of the facts of the case, the 3rd appellant was merely used as a front by the 1st and 2nd appellants. Their claim to be agent of the 3rd appellant is said to be merely a slam. It is pointed out that the 2nd and 3rd appellants were unknown to the respondents and the contract to supply an “auto filling, sealing and packaging system” was negotiated and awarded to the 1st appellant based on his previous jobs he had done to the respondents. Reference is made to the evidence of PW1 (at pages 68, 79-80 under cross-examination) PW2 and pw3 AT PAGES 81 – 84 of the record cited by the respondents to buttress the above point.
In the reply brief dated and filed on 5/10/09 in which the appellant replied to all the new points raised in the respondents’ brief, nothing is said on the respondents’ new point on the 4th issue that the 3rd appellant was merely used as a front by the 1st and 2nd appellants and that the 2nd and 3rd appellants were not known to the plaintiffs/respondents. That it was only the 1st appellant who negotiated the contract with the appellants/respondents. That the plaintiffs/respondents gave the contract to the 1st appellant because of the earlier jobs he did for them, these allegations of issuing the 3rd appellant as a front and that the money for the contract was paid into the account of the 1st appellant has not therefore been denied in any reply brief. By the provision of Order 17 Rule 5 of the Court of Appeal Rules 2007, a reply brief is meant to answer or respond to a new or fresh point raised in the respondents’ brief. The appellants’ failure to deal with the new points raised in the respondents’ brief meant that the said appellants are deemed to have conceded to all the new points or issues arising from the respondents’ brief of arguments which they have not answered – see AYALOGU VS. AGU (1998) 1 NWLR (Pt. 532) 1209; SALAMI VS. MOHAMMED (2000) 6 SC (Pt.11) 37; OKONKWO OKONJI VS. GEORGE NJOKANMA (1999) 12 SC (Pt. 11) 150; SHUAIBU VS. MAITHODA (1993) 3 NWLR (Pt. 284) 748 and ALIKOR VS. OGWU (2010)5 NWLR (Pt. 1187) 281 at 298.
As a result of the appellants’ failure to reply on the new points raised in the reply brief, they are hereby deemed to have conceded to those new points. The 4th issue must therefore be consequently resolved in favour of the respondents and against the appellants.
Finally, having resolved the 1st, 3rd and 4th issues against the appellants and only the 2nd issue in their favour, their appeal has failed. Consequently, the appeal is therefore dismissed. The 2nd issue which is decided in their favour only relates to the damages granted against them for taking photographs which had been rejected in evidence of the 2nd respondent. Accordingly, the N100,000.00 damages awarded to the said 2nd respondent is hereby set aside. I make no order as to costs. Apart from that, the judgment of the trial court is hereby affirmed.
SOTONYF DENTON-WEST, JCA: I have just been given the judgment delivered by my learned brother DALHATU ADAMU, PJ, JCA. The judgment has dealt adequately with all the issues raised for determination in the appeal, especially issue 3 whether the trial court delivery of judgment one year after the parties adopted their final addresses did not occasion miscarriage of justice on the appellants.”
This issue also was well treated and I agree with his lordship on his reasonings and conclusions therein. However I would want to add that this constitutional provisions in sec 294 (1) of the 1999 constitution that provides as follows:
“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 case or mater determined with duly authenticated copies of the decision within seven days of the delivery thereof.
Further the above provision is usually read together with the new amendment incorporated under subsection (5) which reads as follows:
“(5) the decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court excerising jurisdiction by way of appeal or review is satisfied that a party campaigning has suffered a miscarriage of justice.”
The provision of this law in the constitution, in my humble view is appropriate and acts as checks and balances to the average Judge and of course puts a lazy and complacent Judge to be alive to his responsibility and thus within a reasonable time of three months deliver his judgment.
It is however contorting that the decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of the subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review is satisfied that a party complaining has suffered a miscarriage of justice. A party should not suffer because a court has failed to pronounce its judgment within these three months period allowed by the Constitution. Equity has stepped in and this is good for the litigants.
Nevertheless, I urge that we judges to adhere and act within this three months provision of section 294(1) of the 1999 constitution of federal Republic of Nigeria to deliver our judgment. It is good to do so and makes the delivery of judgments ascertainable within a reasonable time.
I also find the appeal lacking in merit and I abide with the orders made in the lead judgment.
CHIMA CENTUS NWEZE, JCA: I agree.
Appearances
R. A. Lawal Rabana (SAN);
Iwalola Bello (Ms.);
Tosin AlawodeFor Appellant
AND
A. O. Mohammed;
Kehinde Ajide;
Lilian Unanwa (Miss)For Respondent
