FIRST BANK OF NIGERIA PLC v. ALHAJI ISIYAKU YAKUBU
(2013)LCN/6683(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of December, 2013
CA/YL/50/2012
RATIO
WHETHER FAILURE TO FILE A NOTICE OF PRELIMINARY OBJECTIION SEPARATELY WILL RENDER THE NOTICE INEFFECTIVE.
A notice of preliminary objection may however be validly raised in the respondent’s brief. The failure to file the notice of preliminary objection separately will not render the notice in a respondents brief as was done in this case, ineffective. See Onwuka v. Ononoju (2009) 4 SC (Pt. 11) 188, Magit v. University of Agriculture Makurdi (2005) 19 NWLR (Pt. 959) 211, Yusuf v. Union Bank of Nigeria Ltd (1996) 6 SCNJ 203 at 209-210, Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248, Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42, Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469, Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166, Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555, BOSIEC v. Kachalla (2006) 1 NWLR (Pt. 962) 582. Per ADAMU JAURO, J.C.A
WHETHER FAILURE TO PAY FILING FEES FOR A COURT PROCESS RENDERS THE PROCESS FILED INCOMOETENT.
The fees paid by the respondent as reflected in the amended respondents brief is N2,000 for the brief itself but nothing was paid in respect of the preliminary objection incorporated in the respondent’s brief. The failure to pay filing fees for a process renders the process so filed improperly filed and hence incompetent. See Onwugbufor v. Okoye (1996) 1 SCNJ 1, (1996) 1 NWLR (Pt. 424) 252, Abia State Transport Corporation & Ors v. Quorum Consortium Ltd. (2009) 9 NWLR (Pt. 1145) 1 SC, Okolo v. Union Bank of Nigeria Ltd (2004) 3 NWLR (Pt. 859) 87 SC, Seven-Up Bottling Co. Ltd v. Yahaya (2001) 4 NWLR (Pt. 702) 47 CA, Moyosore V Gov. Kwara State (2012) 5 NWLR (pt.1292) 242 CA. Per ADAMU JAURO, J.C.A
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
FIRST BANK OF NIGERIA PLC – Appellant(s)
AND
ALHAJI ISIYAKU YAKUBU – Respondent(s)
ADAMU JAURO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Adamawa State High Court of Justice, Yola delivered on the 1st day of June, 2012 in suit number GGSY/95/89.
The appellant as plaintiff instituted the action culminating in this appeal in the lower Court, against the respondent for following reliefs:
“(a) The total sum of N4,127,035.31 made up of the followings:
(i) The sum of 3,145,348.07 being debit balance in respect of defendant’s current account with the plaintiff as at 27th December, 1999.
(ii) The sum of N981,687.24 being debit balance in respect of the loan account of the defendant with the plaintiff as at 27th December, 1999.
(b) Interest at the bank rate of 24% per annum from 28th December, 1999 to date of judgment.
(c) Interest at the Court rate of 10% per annum from the date of judgment to date of liquidation.
TOTAL SUM CLAIM FROM THE DEFENDANT IS N4,127,035.31 with interest at 24% and 10% as aforesaid.”
The respondent as defendant filed his defence and counter claim, and amended same twice. The defendant counter claimed for the following reliefs against the appellant namely:
“(a) A declaration that the statement of account issued to the defendant or the one presented by the plaintiff i.e. Exhibits “6” “6A” – “60” is incomplete, incorrect and to that extent is not a true record of the transactions of the defendant/counter claimant with the plaintiff.
(b) The sum of N795,000.00 (Seven hundred and ninety five thousand naira) as rent due to the defendant from July 1989 to June 1999 at N79,500.00 per annum.
(i) Interest on the sum of N795,000.00 at the prevalent bank rate from 1989 until judgment.
(ii) 10% interest on the sum of N795,000.00 from the date of judgment until final liquidation.
(c) An order directing the plaintiff to release to the defendant/counterclaimant all the documents wrongly detained by the plaintiff.
(d) The sum of N20,000,000.00 (Twenty Million Naira) only as General damages for wrongful detention of the defendant’s Title documents.
(e) A declaration that the debiting of the sum N1,692,50 against the defendant vide cheque No. HD655674 and the subsequent interest charged on the defendant’s account no. current Account No. 07395 is wrongful, fraudulent and amounts to a breach of trust by the plaintiff.
(f) A declaration that the plaintiff is in breach of the duty of care it owed the defendant/counterclaimant in that the defendant’s account were not properly maintained and largely tampered with by the plaintiff.
(g) The sum of N10,000,000.00 (Ten Million Naira) only as General damages for breach of trust and unlawful manipulations of the defendant’s account No. 07935.
(h) An order directing or mandating the plaintiff bank to return to the defendant’s savings account No. 94 the sum of N11,692.11 together with all the accrued interest at bank rates from July, 1982 up to the date of judgment and thereafter.
(i) The defendant counterclaimant claims ‘Mesne profit’ from the plaintiff at the rate of N500,000.00 (five hundred thousand naira) only per annum from July 1999 until possession of the premises is given back to the defendant/counterclaimant.
i. Interest on the total sum at bank rates from 1999 until judgment.
ii. 10% interest on the total mesne profit from the date of judgment until final liquidation.
(j) An order ejecting the plaintiff from the premises of the defendant/counterclaimant (i.e. the Market Branch of the Plaintiff) along Mubi road, Jimeta/Yola.”
Upon settlement of pleadings the case proceeded to hearing. The plaintiff called two witnesses in support of its case and tendered 14 exhibits in evidence. The defendant testified for himself and tendered 14 exhibits in evidence. Written addresses were filed, exchanged and adopted in Court on the 27th day of September, 2011. In a five paged judgment delivered on 1st June, 2012, the lower Court granted all the reliefs claimed by the respondent in his counterclaim in the following words:
“It is therefore the view of this court that the evidence put in by the defendant on preponderance of evidence has proved the counter claim while the plaintiff has failed to prove his claims. The reliefs sought by the defendant in his counter claim is accordingly granted.”
Aggrieved by the aforementioned decision, the plaintiff challenged same vide a notice of appeal dated and filed 9th July, 2012. The notice of appeal is anchored upon seven grounds of appeal. In strict compliance with the Rules of Court, briefs of argument were filed and exchanged. The appellant’s further amended brief of argument dated 8th November, 2013 and filed on 11th November, 2013 but deemed properly filed on 13th November, 2013. The appellant’s reply brief is also dated 11th November, 2013 and filed on 12th November, 2013 but deemed properly filed on 13th November, 2013. The respondent’s amended brief of argument is dated 8th November, 2013 and filed on 12th November, 2013 but deemed properly filed and served on 13th November, 2013.
On the 13th November, 2013 the date slated for hearing the appeal, Mr. J. Olabode Makinde for the respondent intimated the Court of a preliminary objection raised in the amended respondent’s brief of argument. Learned Counsel adopted pages 4 to 6 of the respondent’s amended brief of argument containing the notice of preliminary objection and argument in support and urged the Court to strike out the offensive grounds, namely grounds 3, 5 and 6. Learned Counsel stated that having filed the original respondent’s brief on the 27th May, 2013, they have complied with the requirements of the Rules of Court for three days notice. Mr. E. M. Zangina leading Mr. Salihu Mohammed for the appellant adopted the appellant’s reply brief in response to the preliminary objection and urged the Court to dismiss same or strike it out for incompetence. As for the main appeal Mr. E. M. Zangina adopted the appellant’s further amended brief of argument and urged the Court to allow the appeal, set aside the decision of the lower Court and reverse same by entering judgment in favour of the plaintiff in terms of the reliefs claimed. Mr. J. Olabode Makinde adopted pages 7 to 29 of the amended respondent’s brief as his argument in the main appeal and urged the court to dismiss the appeal with costs.
The appellant submitted six issues for determination on pages 3 and 4 of appellant’s further amended brief of argument as follows:
“1. Whether the judgment of the learned trial Judge is not a nullity and has not occasioned miscarriage of justice to the appellant and liable to be set aside by this court, when same was delivered outside the statutory period of 90 days without reasons for the delay, reasons for the judgment and without evaluation of evidence adduced by the parties (Ground 1)
2. Whether the learned trial Judge was right in granting the reliefs sought by the defendant/counterclaimant in respect of landed property at No. 99 Mubi Road without resolving the issue of jurisdiction raised against it by the plaintiff/appellant in its final address (Ground 2)
3. Whether the judgment of the learned trial Judge is not a nullity and liable to be set aside by this court when the judge ignored his vital duties as judge in writing judgment and gave judgment that lacks all mandatory contents and basic components of a legal judgment (Ground 4).
4. Whether the judgment of the trial court is not perverse (Ground 5).
5. Whether the learned trial Judge was right in giving a blanket approval to all the reliefs sought by the defendant/counterclaimant without regards to the nature of each relief, the pleadings, the evidence adduced and without quantifying or assessing the damages (Ground 6).
6. Whether having regards to the evidence before the court and the admission of part of the plaintiff’s claim by the defendant the judgment is not against the weight of evidence (Grounds 3 & 7)”
The respondent on his part identified three issues for determination on pages 6 and 7 of the amended respondent’s brief namely:
“1. Whether the judgment of the lower Court is a nullity having been delivered more than 90 days after the conclusion of evidence and final addresses?
(Distilled from ground 1 of the grounds of appeal)
2. Whether the lower Court did or did not resolve the issue of jurisdiction raised by the appellant in his written address?
(Distilled from ground 2 of the grounds of appeal)
3. Whether the trial judge did not evaluate of evidence before him and give reasons for giving judgment in favour of the defendant counterclaimant?
(Distilled from ground 4, 6 and 7 of the grounds of appeal)”
A consideration of the preliminary objection will first be made before delving into the main appeal.
PRELIMINARY OBJECTION
The grounds, upon which the preliminary objection is predicated as contained on page 4 of the respondent’s amended brief of argument, are as follows:
“(i) Ground 5 is incompetent as it is general in nature.
(ii) Ground 6 of the grounds of appeal is imprecise, general in nature and discloses no reasonable ground of appeal contrary to Order 6 rule 3 of the court of appeal rules.
(iii) Ground 3 is not a complaint against the decision or judgment of the trial judge and discloses no reasonable ground of appeal.”
The respondent submitted that ground 3 and 6 are imprecise and vague, hence incompetent. It was argued that ground 3 is quotation from the judgment and the first leg of the quotation is not a decision of the trial judge. It was submitted that an appeal can only be against or relate to the decision of the trial Court. In support, reference was made to the following cases: Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, A. G. Oyo State v. Fair Lakes Hotel Ltd (1985) 5 NWLR (Pt. 92) 1. It was also argued that ground 5 of the grounds of appeal is general in nature and has no particulars. Learned counsel submitted that by Order 6 Rule 3 of the Court of Appeal Rules 2011, any ground of appeal that is vague or discloses no reasonable ground of appeal is liable to be struck out. Hence, it was urged that the aforementioned grounds be struck out.
The appellant challenged the competence of the preliminary objection and in the second part of the reply made a response to the preliminary objection. On the competence, it was argued that the respondent did not file a motion or a notice of preliminary objection as a separate process as required by Order 7 Rule 1 and Order 10 Rule 1 of the Court of Appeal Rules 2011. It was contended that the notice of preliminary objection raised in the respondent’s brief was neither dated signed or filed separately, hence incompetent. In support, reference was made to the case of Dada v. Dosunmu (2006) ALL FWLR (Pt. 343) 1605 at 1631. It was submitted that the respondent has not paid filing fees for the preliminary objection. It was argued that by Order 12 Rule 1 of the Rules of Court, all processes to be filed in Court must be charged and paid for in the registry as prescribed in the third schedule of the Rules. It was contended that the 3rd schedule on page 101 of the Rules, prescribed N3,000 and N2,000 as filling fees for applications and briefs of argument. It was argued that what was paid for was for the respondent’s brief simpliciter, hence the preliminary objection that was not paid for is incompetent. It was therefore urged that same be struck out.
Responding on the merit of the objection, it was contended that ground 3 and its particulars are clear, unambiguous and disclosed a reasonable ground of appeal. It was submitted that the ground complains about decision of the trial Court which recorded admission of part of the plaintiff’s claim, yet concluded against the plaintiff that it has not proved its case. It was submitted that the primary aim of a ground of appeal is to give the other side the nature of the complaint. In support reference was made to the case of Hani Akar Enterp. Ltd v. Indo Nig. Merchant Bank Ltd (2011) ALL FWLR (pt. 567) 726 at 742. On ground 5, it was contended that the complain in the said ground is that the decision is perverse. On ground 6, it was argued that the ground and its particulars are clear and devoid of any ambiguity. It was further argued that the ground was well understood by the respondent to the extent that issue 3 formulated by the respondent was distilled from three grounds, including ground six. It was submitted that once a ground of appeal is not misleading or incomprehensible, interest of justice demands that such ground be allowed, particularly where parties have joined issues on the ground. In support reference was made to Onah v. Okenna (2011) ALL FWLR (Pt. 565) 357. In concluding, this court was urged to dismiss the preliminary objection in its entirety.
On the competence of the preliminary objection, the first challenge was that it ought to have been raised separately not incorporated in the respondent’s brief. Order 10 of the Court of Appeal Rules 2011, makes provision for notice of preliminary objection. By Order 10 Rule 1 of the aforementioned Rules of Court, where a respondent wishes to raise a preliminary objection to the competence of an appeal, there is the need to file a notice of preliminary objection, three clear days to the hearing of the appeal. A notice of preliminary objection may however be validly raised in the respondent’s brief. The failure to file the notice of preliminary objection separately will not render the notice in a respondents brief as was done in this case, ineffective. See Onwuka v. Ononoju (2009) 4 SC (Pt. 11) 188, Magit v. University of Agriculture Makurdi (2005) 19 NWLR (Pt. 959) 211, Yusuf v. Union Bank of Nigeria Ltd (1996) 6 SCNJ 203 at 209-210, Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248, Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42, Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469, Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166, Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555, BOSIEC v. Kachalla (2006) 1 NWLR (Pt. 962) 582. Consequent upon the foregoing, the fact that the preliminary objection was raised in the respondent’s brief does not ipso facto render it incompetent.
As for the non payment of filing fees for the preliminary objection, Order 12 Rule 1 of the Rules of Court made provision for the payment of filing fees as prescribed in the third schedule of the Rules. The fees for the filing of brief of argument as provided in the third schedule is N2,000 while that of any motion not otherwise provided for is N3,000. The fees paid by the respondent as reflected in the amended respondents brief is N2,000 for the brief itself but nothing was paid in respect of the preliminary objection incorporated in the respondent’s brief. The failure to pay filing fees for a process renders the process so filed improperly filed and hence incompetent. See Onwugbufor v. Okoye (1996) 1 SCNJ 1, (1996) 1 NWLR (Pt. 424) 252, Abia State Transport Corporation & Ors v. Quorum Consortium Ltd. (2009) 9 NWLR (Pt. 1145) 1 SC, Okolo v. Union Bank of Nigeria Ltd (2004) 3 NWLR (Pt. 859) 87 SC, Seven-Up Bottling Co. Ltd v. Yahaya (2001) 4 NWLR (Pt. 702) 47 CA, Moyosore V Gov. Kwara State (2012) 5 NWLR (pt.1292) 242 CA. The failure to pay filing fees for the preliminary objection breached Order 12 Rule 1 of the Rules of Court and renders the process improperly filed hence, incompetent. On this score alone, the preliminary objection is incompetent and is hereby struck out.
MAIN APPEAL
The issues for determination as formulated by the appellant will be adopted in the resolution of this appeal. The appellant argued issue 1 and 3 together which were replied to in issues 1 and 3 of the respondent’s brief of argument.
ISSUES 1 AND 3
The appellant started with section 294(1) of the 1999 Constitution (as amended), to the effect that the judgment of a court of law should be delivered within 90 days from the date of final addresses. It was stated that final addresses were adopted on 27th September, 2011 and the matter adjourned to 1st November, 2011 for judgment, but the judgment was not delivered until 1st June, 2012. It was contended that judgment was delivered 6 months outside the mandatory period prescribed by the constitution.
It was submitted that failure of the trial Judge to deliver judgment within the time frame, has made the Judge to lose impression of the evidence adduced. It was argued that the learned trial Judge not only failed to give reasons for the delay but also failed to give reasons for his conclusion against the appellant in favour of the defendant/counterclaimant. It was contended that both the decision and reason for the decision must be given within the time frame allowed by law. In support, reference was made to the case of Abubakar v. Nasamu (2012) ALL FWLR (Pt. 630) 1208 at 1216.
It was submitted that the failure to deliver the judgment within the time frame has occasioned serious miscarriage of justice to the appellant. It was argued that the miscarriage of justice in this case is the judgment delivered against the appellant without a judgment sum, without reasons, without basis and guess oriented. It was submitted that the judgment did not raise any issue for determination or adopt any issue raised by the parties and there was no resolution of any of the issues raised by the parties. It was contended that the judgment did not make any summary of the evidence adduced, evaluation of such evidence and giving them probative or non probative value, findings of facts, resolution of issues and conclusions based on reasons and consequential orders. It was submitted that the judgment ignored to examine the exhibits tendered and ignored to give reasons for its conclusion.
It was contended that a good judgment should contain among others, the following:
i. Introduction of the parties
ii. Nature of the action before the court
iii. Issues in controversy
iv. Review of the case for the parties
v. Evaluation of evidence
vi. Consideration of relevant laws applicable to the case
vii. Specific findings of fact and conclusion
viii. Reason for the conclusion to be stated.
In support, reference was made to the following cases: Igwe v. Alvan Ikoku College of Education Owerri (1994) 8 NWLR (Pt. 363) 459 at 480-481, Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 25, Unity Bank Plc v. Onye (2012) ALL FWLR (pt.627) 711 at 715.
In concluding, it was argued that the delay in delivering the judgment has occasioned a serious miscarriage of justice to the appellant and it lacked basic requirements of a legal judgment, hence a nullity. It was urged that issues 1 and 3 be resolved in favour of the appellant and the judgment be set aside for being a nullity.
The respondent under issue one stated that a judgment delivered after the 90 days provided in section 294(1) of the Constitution, does not become a nullity simply for being delivered outside the prescribed time. It was argued that by section 294 (5) of the same Constitution, the appellant has to show that the judgment delivered outside the 90 days has occasioned a miscarriage of justice to him. It was contended that the appellant has not shown how the judgment occasioned a miscarriage of justice to him to warrant nullifying same. In support, reference was made to the case of Cotechna International Ltd v. Churchgate Nig. Ltd & Anor (2010) 12 SC (Pt. 11) 140.
It was submitted that the appellant failed to demonstrate how the trial Judge lost the impression of the evidence adduced. It was argued that the trial Judge gave a reason for his decision to the effect that the respondent/counterclaimant has proved his case on preponderance of evidence. It was further argued that even where miscarriage of justice has been established, it must be linked to the failure to deliver the judgment within the 90 days prescribed by law. It was contended that even though the judgment was delivered outside the 90 days, the judgment cannot be treated as a nullity because it has not occasioned any miscarriage of justice to the appellant. Hence the court was urged to resolve this issue against the appellant.
On evaluation of evidence, the respondent under issue 3 stated that the trial Judge evaluated the evidence before him and gave reason for his decision. It was also submitted that the trial Judge took pains to read the addresses of both parties. The respondent contended that the trial Judge gave reason for his decision to the effect that the respondent had on preponderance of evidence proved the counterclaim. It was submitted that the conclusion that the appellant failed to prove his case is sound and correct. It was argued that what an appellate court will be concerned with is the correctness of the judgment of the lower court and not the reason thereof. In support, reference was made to the following cases: Rock Bottom Interior Ltd v. Gafar (2005) All FWLR (Pt. 271) 113 at 136, Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180, Usman v. Garke (2004) 5 SCNJ 152.
It was posited that judgment writing is an art, no particular format is to be adopted and once the right judgment is reached, the reason for the judgment is immaterial. In support, reference was made to the unreported decision of the court, namely: Alh. Moh’d Abubakar v. Elizabeth M. Anobih CA/J/392/2007 of 6th February, 2013, and the case of Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 913) 63 at 692. It was contended that the trial Judge examined the evidence of all the witnesses and the 28 exhibits tendered before concluding that the respondent had proved his counterclaim on the preponderance of evidence. The respondent posited that the conclusion of the trial Judge is right and unassailable in view of the failure of the appellant to prove his claim. The respondent in the second part of the issue under consideration proceeded to analyze the evidence in support of the appellant’s claim and the respondents counter claim. In concluding, the respondent urged the court to resolve the issue against the appellant and hold that the judgment is not a nullity and that the appellant failed to prove its claims before the lower court.
A good starting point is from section 294(1) of the 1999 Constitution (as amended) which provides thus:
“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
In the instant case, written addresses were adopted on 27th September, 2011 and the case adjourned to 1st November, 2011 for judgment. The judgment however was not delivered on the adjourned dated but was subsequently delivered on 1st June, 2012, a period of about 6 months after the 90 days. There was no reason given by the lower Court explaining the delay.
Section 294(5) of the 1999 Constitution (as amended) provides thus:
“The decision of a Court shall not be set aside or treated as a nullity solely on ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The complain of the appellant in the issues under consideration is that the delay in the delivery of the judgment has occasioned a miscarriage of justice. The appellant submitted that the failure to deliver the judgment within the time frame has made the Judge to lose impression on the evidence adduced before him. Several other reasons were given by the appellant in his submissions as earlier reproduced to support the fact that the delay occasioned a miscarriage of justice. The respondent maintained a contrary position, to the effect that the delay has not occasioned any miscarriage of justice.
The position of the law via the aforementioned constitutional provisions is to the effect that the delay per se will not result in declaring a judgment a nullity, except where it has occasioned a miscarriage of justice. See Cotechna Int. Ltd. v. Church gate Nig. Ltd (2010) 12 SC (Pt. 11) 140, Egbo v. Agbara (1997) 1 NWLR (Pt. 481) 293, Ariori v. Elemo (1983) 1 SCNLR 1, Chukwu v. State (1992) 1 NWLR (Pt. 217) 255. In the course of trial as earlier stated, two witnesses testified for the plaintiff and the defendant testified for the defence. A total of 28 exhibits were admitted in evidence. I have meticulously and painstakingly studied the five paged judgment several times.
By way of prologue it must be stated that judgment writing is an art as rightly submitted by the respondent, and each Judge is entitled to and free to follow his own style in achieving the end result. There are however certain essential components which a good judgment must incorporate, namely, set out the nature of the case/action before the court; the issues in controversy, a review of the case for the parties, a consideration of the relevant law raised and applicable to the case, specific findings of fact and conclusions. The reasons for arriving at the conclusions must also be stated. The most essential thing however, is that a Judge should show a clear understanding of the facts and issues raised in the case, the law applicable to arrive at a conclusion. See Onuoha v. State (1988) 2 SC (pt.11) 115, Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494, Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 913) 663 at 692, Igwe v. Alvan Ikoku College of Education Owerri (1994) 8 NWLR (Pt. 363) 459 at 480-481, Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 25 Unity Bank Plc v. Onye (2012) ALL FWLR (Pt. 627) 711 at 715; Once there is proper evaluation of evidence and proper application of the law, the style adopted is not important. The Apex Court, per Uthman Mohammed, JSC in Awopejo v. State (2001) 18 NWLR (Pt. 745) 430 at 442 stated thus:
“Whichever style a Judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding….”
In the judgment of the lower Court now on appeal, there was nothing like reference to the evidence of any of the witnesses, or a review/summary of the evidence and evaluation. Indeed there was no reference to or examination of any of the 28 exhibits tendered. The only thing the lower Court said about the evidence of the witnesses on page 233 of the record is as follows:
“I have carefully gone through the pleadings, statement of claim of the plaintiff, statement of defence and counter claim made by the defendant. I have carefully gone through the evidence of PW1, PW2 and DW1 as well as the 28 exhibits admitted. I have also taken pains and read the written addresses of counsel, the issues formulated for determination”.
The judgment has not resolved any of the issues for determination raised by the parties, nor has any issue been identified and resolved by the court based on evidence. A summary of the evidence adduced by the parties was not made and neither was evaluation made to accord probative value to the evidence adduced. It is clear from the judgment, that the learned trial Judge is no longer in a position to properly articulate the evidence adduced before him and had lost his impressions of the trial. I am in agreement with the appellant that the delay in delivery of the judgment has occasioned a miscarriage of justice. Consequent upon the foregoing, issues 1 and 3 are resolved in favour of the appellant and the judgment is hereby declared a nullity.
This court being a penultimate court is enjoined to consider and pronounce on all issues put across by the parties. However, there are circumstances under which a consideration of other issues may be dispensed with. The circumstances are: (i) when an order for retrial is considered desirable or (ii) where the judgment appealed against is declared a nullity, in which case there will be no need to pronounce on other issues flowing from the trial declared a nullity and which could possible arise at the retrial or action. See Brawal Shipping (Nig) Ltd Onwadike (2000) FWLR (Pt. 23) 1254 at 1271, Sanusi v. Amoyegun (1992) 4 NWLR (Pt. 237) 527 at 550-551, Shashi v. Smith (2009) 18 NWLR (Pt. 1173) 330. Though it has earlier been indicated that the appeal will be determined on the issues formulated by the appellant, it is no longer necessary considering the access of issue one and three.
Consequent upon the forgoing, the appeal is meritorious and is hereby allowed. The judgment of the lower Court delivered on 1st June, 2012 in suit number GGSY/95/89 is hereby set aside. In its place, an order is hereby made remitting the case to the Hon. Judge of Adamawa State for re-assignment to another judge who shall hear determine case without further delay.
There shall be no order as to costs.
JIMI OLUKAYODE BADA, J.C.A.: I had the opportunity of reading before now, the lead judgment just delivered by my learned brother ADAMU JAURO, JCA.
My Lord dealt with all the issues for determination in this appeal in a very lucid form.
I agree with the reasons contained in the Judgment as well as the conclusion that the appeal is meritorious. I too allow the appeal.
I endorse the consequential orders made in the said lead judgment.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft a copy of the lead judgment delivered by my learned brother, Jauro, JCA.
I agree with his reasoning and conclusion. I do not intend to add anything thereto.
I would also allow the appeal. I abide by the consequential orders made in the lead Judgment, including the order on costs.
Appeal allowed.
Appearances
Mr. E. M. Zangina with Mr. Salihu MohammedFor Appellant
AND
Mr. J. Olabode Makinde For Respondent
