HIS ROYAL HIGHNESS AGBOGIDI OFULUE II & ANOR v. PA (DIOKPA) JOHN OKOH & ORS (2014)

HIS ROYAL HIGHNESS AGBOGIDI OFULUE II & ANOR v. PA (DIOKPA) JOHN OKOH & ORS

(2014)LCN/7267(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of June, 2014

CA/B/125/2006

RATIO

IMPLICATION OF NOT FILING A REPLY BRIEF AS AT WHEN DUE

Now, the law seems to be well settled that where an appellant fails to file a Reply Brief when it is necessary to do so, he will be deemed to have conceded the points arising from the Respondent’s Brief. See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE COMPANY (1991) 6 NWLR (PT.199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 D-E and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT.1209) 518.
The situation is even worse where a Reply Brief is not filed to a preliminary objection like in this case. See DAIRO vs. UNION BANK (2008) 2 WRN 1 AT 8 – 9, POPOOLA vs. ADEYEMO (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT.532) 129. On the state of the law therefore, the Appellants having failed to file a reply brief are deemed to have conceded the points raised in the preliminary objection and which has been, is incorporated in the Respondents Brief: ALAYA vs. ISAAC (2012) LPELR 1 at 67-68. Howbeit, this fact alone will not willy-nilly mean that the preliminary objection is bound to succeed. The court remains duty bound to consider the merits of the preliminary objection.
The current trend is to incorporate a preliminary objection in a Respondent’s Brief of Argument without necessarily having to set it out in a separate Notice of Preliminary Objection. See DAKOLO vs. DAKOLO (2011) 16 NWLR (PT.1272) 22 at 41 and AGURA vs. OROBIYI (2012) LPELR 1 at 15. The substance of the Respondents Preliminary Objection which is incorporated in the Respondents brief of argument is that Issue No. 1 distilled by the Appellants does not relate to any ground of appeal and that since the said Issue does not arise from any finding contained in the decision of the Lower Court, the Issue was speculative and academic. per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WORDS AND PHRASES: DECISION

Now, Section 294 (1) of the 1999 Constitution stipulates 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 cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”

The contention of the Respondents is that the above provision is inapplicable because the decision appealed against is an interlocutory decision, which did not entail the hearing and determination of the substantive matter. I am not enthused by this contention as it does not seem to me to be a correct restatement of the law. The main thrust of Section 294 (1) of the 1999 Constitution is for a court to deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. Evidence in a matter litigated in court encompasses affidavit, testimonial and documentary evidence. The court is addressed on issues of law and the evidence before it irrespective of whether it is an interlocutory or substantive matter. In any event, decision as employed in Section 294 (1) of the 1999 Constitution has been interpreted in Section 318 of the 1999 constitution to mean in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation, Clearly therefore based on the definition of decision in Section 318 of the 1999 Constitution, the order of the Lower Court overruling the Appellants preliminary objection even though given in an interlocutory ruling on preliminary objection is clearly a decision within the purview of Section 294 (1) of 1999 Constitution. per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. HIS ROYAL HIGHNESS AGBOGIDI OFULUE II,
(OBI OF UBULU-UKU)
2. MR. SUNDAY OFULUE Appellant(s)

AND

1. PA (DIOKPA) JOHN OKOH
2. P. O. OJI
3. G. N. EKWEMUYA
4. P. O. MOKOLO
5. J. N. AZU
(FOR THEMSELVES AND ON BEHALF OF UMU-OZIM ROYAL FAMILY, UBULU-UKU) Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Delta State, contained in the Ruling of Honourable Justice G. B. Briki-Okolosi delivered on 16th May, 2003.
The background facts of this matter shows that in an action in suit No.A/157/2002 instituted on 5th August, 2002 the Plaintiffs/Respondents who expressed in the writ to be suing in a representative capacity claim to be the kingmakers and supreme authority in Ubulu-Uku. They claim sundry declarations, injunctions and order with the respect to the appointment of the 2nd Defendant/Appellant as the Ozoma Ani; an appointment which they claim is contrary to Ubulu-Uku native law and custom.
The Defendants/Appellants entered appearance under protest and filed a preliminary objection wherein they contended that the suit was incompetent and urged that the same be dismissed or struck out. In a considered Ruling which is at pages 30 to 42 of the Records of Appeal, the Lower Court overruled the said preliminary objection for not being properly conceived. The Defendants/Appellants being dissatisfied with the said Ruling appealed against the same. The Notice of Appeal is at pages 43 to 44 of the Record of Appeal.

The Records of Appeal having been compiled and transmitted by the Registry of the Lower Court, the learned Counsel for the parties filed and exchanged briefs of argument. The Appellants brief of argument is dated 5th June, 2006, but filed on 6th June, 2006. The Respondents Brief of Argument is dated and filed on the 25th day of August, 2006.In their brief of argument which was settled by P. C. E. Dunkwu Esq., the Appellants distilled two issues for determination as follows:
1. When a Court finds that a matter is incompetent what order can it make in law?
2. What is the effect of a decision which was delivered outside the three months stipulated in Section 294 (1) of the constitution of Federal Republic of Nigeria?

In their brief of argument, which was settled by Albert N. Maidoh Esq., the Respondents raised a preliminary objection to the competence of Issue No. 1 formulated in the Appellants Brief on the ground that the said issue is not covered by any ground of appeal. The Respondents then proceeded to formulate two issues for determination in the appeal as follows:
“1. Was the learned trial Judge right in dismissing the Appellant’s Preliminary Objection dated 18/10/2002”
“2. Whether section 294 (1) of the constitution of the Federal Republic of Nigeria, 1999, is applicable to facts of the case at hand.”
When the appeal came up for hearing, learned Counsel for the parties who had been duly served with the notice of hearing were not in court to present oral argument on the appeal. However, since briefs had been filed and exchanged by the parties, the appeal was treated as having been duly argued, pursuant to the provisions of Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011.

PRELIMINARY OBJECTION
In the preliminary objection which is incorporated at pages 7 to 9 of the Respondents Brief of Argument, the Respondents contend that Issue No. 1 distilled in the Appellants Brief is not covered by any of the grounds of the appeal; it was posited that issues for determination must be related to the grounds of appeal filed. The cases of ONYIDO vs. AJEMBA (1991) 4 NWLR (PT 184) 203 at 217 – 218; EGBE vs. ALHAJI (1990) 1 NWLR (PT.128) 549 at 567 and MOMODU vs. MOMOH (1991) 1 NWLR (PT.169) 608 at 620 -621 were cited in support.

It is the further contention of the Respondents, that the Lower Court in its Ruling did not declare the Respondents suit as constituted to be incompetent and that it was therefore speculative and an academic exercise for the Appellants to have formulated their Issue No. 1 in a manner that is premised on a finding that was never made by the Lower Court. The Respondents maintained that a court does not embark on an academic exercise. The cases of OKULATE vs. AWOSANYA (2000) 74 LRCN 167 at 196 and A-G KWARA STATE vs. ALAO (2000) 9 NWLR (PT 671) 84 amongst other cases were referred to. The Respondents urged the court to uphold the preliminary objection and strike out Issue No. 1 of the Appellants Brief for being incompetent.
The Appellants did not file any Reply brief, so they did not reply to the submissions of the Respondents on the preliminary objection.

The current trend is to incorporate a preliminary objection in a Respondent’s Brief of Argument without necessarily having to set it out in a separate Notice of Preliminary Objection. See DAKOLO vs. DAKOLO (2011) 16 NWLR (PT.1272) 22 at 41 and AGURA vs. OROBIYI (2012) LPELR 1 at 15. The substance of the Respondents Preliminary Objection which is incorporated in the Respondents brief of argument is that Issue No. 1 distilled by the Appellants does not relate to any ground of appeal and that since the said Issue does not arise from any finding contained in the decision of the Lower Court, the Issue was speculative and academic.

As already stated, the Appellants did not file any Reply Brief in answer to the preliminary objection raised by the Respondents. The Appellants Issue No. 1 which has been challenged by the Respondents reads as follows:
“When a Court finds that a matter is incompetent what order can it make in law?”

The above issue as distilled presupposes that the Lower Court in the decision appealed against held that the Respondents action was incompetent. However, this is not borne out by the Records of Appeal because even though the Lower Court stated at Page 41 of the Records that the “Ruling has not by any way endorsed the representation expressed on the writ of summons”, the Lower Court never made any pronouncement that the Respondents action was incompetent. This being so, I cannot but agree that it will be speculative and a mere conjecture for the court to begin to consider academic and hypothetical issues that do not arise from the decision appealed against. See PLATEAU STATE GOVERNMENT vs. A-G (FEDERATION) (2006) 3 NWLR (PT 967) 346 and EZEREBO vs. EHINDERO (2009) 10 NWLR (PT.1148) 166.

With regard to the contention that the Appellants Issue No. 1, does not derive from any ground of appeal, the law is settled beyond peradventure that issues for determination must derive from a ground of appeal otherwise such an issue will be redundant and must be discountenanced. See FASORO vs. BEYIOKU (1988) 2 NWLR (Pt.76) 263; OKPALA vs. IBEME (1989) 2 NWLR (PT.102) 122 and ALI vs. UMARU (1999) LPELR 1 at 3 – 4.

The Appellants Grounds of Appeal contained in the Notice of Appeal, at page 43 to 44 of the Records are as follows:-
“1. The Court has no jurisdiction therefore incompetent to entertain the matter.
2. The court delivered its Ruling later than ninety days contrary to section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria and this resulted to a miscarriage of justice to the Appellants.”

It seems as clear as crystal, that there is nothing in the above grounds of appeal on which Issue No. 1 distilled by the Appellants can be anchored; there is nothing in the ground of appeal complaining of a failure by the Lower Court to make the necessary order consequent upon finding that the Respondents action was incompetent. In any event as already stated in the course of this Judgment, the Lower Court in its Ruling did not decide that the Respondents action was incompetent. Consequently, since Issue No.1 of the Appellant’s brief is not founded on any ground of appeal the said Issue is redundant and must be discountenanced. See AKINBINU vs. OSENI (1992) 1 NWLR (PT.215) 97 and ADEKUNLE vs. AREMU (1998) 1 NWLR (PT. 533) 203. Accordingly the Respondent’s preliminary objection is eminently meritorious, it is upheld and Issue No. 1 of the Appellants Brief which does not derive from any ground of appeal would be discountenanced: MOMODU vs. MOMOH (supra).
Having dealt with the Respondents preliminary objection, we now segue to a consideration of the appeal.

THE APPEAL
I have already set out the issues for determination as distilled by the parties in their respective briefs of argument. Going by the grounds of appeal, and having stated that Issue No. 1 of the Appellants is to be discountenanced, I find the second issue for determination distilled by the Appellants to be apt and distensible, such that it subsumes the issues distilled by the Respondents. I will therefore adopt the said issue in the determination of this appeal.

ISSUE FOR DETERMINATION
What is the effect of a decision which was delivered outside the three months stipulated in Section 294 (1) of the Constitution of the Federal Republic of Nigeria?

The submission of the Appellants is that the Lower Court concluded final argument on 15th November, 2002, after which it fixed its Ruling for 26th November, 2002; but that the Ruling was not delivered until 16th May, 2003 which was well outside the ninety days stipulated in Section 294 (1) of the 1999 Constitution. It was posited that the delay by the Lower Court impacted on the decision of the Lower Court such that it occasioned a miscarriage of justice. The Appellants argue that the failure by the Lower Court to give its decision within the stipulated period made the decision null and void and entirely of no legal effect. The cases of IFEZUE vs. MBADUGHA (1984)1 ANLR 256; OJOKOLOBO vs. ALAMU (1987) 3 NWLR (PT. 61) 377; TSALIBAWA vs. HABIBA (1991) 2 NWLR (Pt. 174) 461 and T. S. A. INDUSTRIES NIG. LTD VS. ABACUS MERCHANT BANK LIMITED (1996) 2 NWLR (PT. 430) 305 were referred to.

The Respondents contend in their brief that Section 294 (1) of the 1999 constitution is inapplicable since its application is only limited to final judgments, after the conclusion of the evidence and final addresses. It was submitted that the decision appealed against is an interlocutory decision which did not entail the hearing and determination of the substantive matter. It was further submitted that by the stipulations of Section 294 (5) of the 1999 constitution, the decision of a court shall not be set aside or treated as nullity solely on the ground of non-compliance, unless a miscarriage of justice has been occasioned by reason of the non-compliance. The Respondents assert that there is nothing to suggest that the Appellants suffered any miscarriage of justice.

The proceedings before the Lower Court at pages 26 to 29 of the Records shows that the court concluded argument on the preliminary objection on 15th November, 2002 after which it fixed its Ruling for 26th November, 2002. However, the Ruling was not delivered until 16th May, 2003, see pages 30 to 42 of the Record of Appeal. This is a period clearly in excess of the ninety days stipulated in Section 294 (1) of the 1999 Constitution. It therefore goes without saying that the decision of the Lower Court fell short of the stipulation in Section 294 (1) of 1999 constitution.

The Appellants relied on the case of IFEZUE vs. MBADUGHA (supra) amongst others, to contend that the non-compliance with Section 294 (1) rendered the decision of the Lower Court null and void and entirely of no legal effect. The cases relied upon by the Appellants were decided based on the stipulations of Section 258 (1) of 1979 constitution. Even though the said stipulation of Section 258 (1) of the 1979 constitution is in pari materia with Section 294 (1) of the 1999 Constitution, the position of the law has shifted with the stipulation in Section 294 (5) of the 1999 Constitution such that a decision given in excess of ninety days, does not ipso facto become a nullity unless a party has suffered a miscarriage of justice as a result of the delay.

Section 294 (5) of 1999 constitution provides as follows:-
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of sub-section (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.”

As already stated, the Records show that the decision of the Lower Court was delivered outside the ninety days period within which the decision ought to have been delivered after the close of argument. However, Section 294 (1) of the Constitution is not to be interpreted and applied in isolation, it should be read in conjunction with Section 294 (5) which provides that the decision of the court is not to be set aside or treated as nullity solely on the ground of non-compliance with sub-section (1) unless a miscarriage of justice is shown to have been occasioned by reason of the delay, in order to arrive at a proper understanding of the stipulations of the Section: PDP vs. TAIWO (2004) 8 NWLR (PT 876) 656 at 676 and DURO vs. INEC (2010) LPELR 1 at 24. Therefore the regnant legal position will seem to be that the effect of non- delivery of a decision by a court within ninety days is that such a decision would no longer be set aside for being a nullity unless the delay had occasioned a miscarriage of justice. See ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT 901) 18; IGWE vs. KALU (2002) 5 NWLR (PT. 761) 678; ACB vs. AJUGWO (2011) LPELR 1 at 34 – 35 and MOLEGBEMI vs. AJAYI (2011) LPELR 1 at 30 – 32.
From the foregoing, the decision of the Lower Court can only now be set aside if this court is satisfied that the delay occasioned a miscarriage of justice.

There is nothing in the Records of Appeal suggesting that the Lower Court lost track of the submissions made by learned counsel on the preliminary objection. The preliminary objection raised at the Lower Court was based on grounds of law. The Ruling of the Lower Court contains a painstaking review of the submissions and arguments of counsel before it, such that it cannot be said that the delay had resulted in the Lower Court forgetting the issues that were raised before it thus occasioning a miscarriage of justice.

I am of the informed view that the Appellants did not suffer any miscarriage of justice as a result of the failure by the Lower Court to deliver its decision within ninety days from the conclusion of argument before it. Consequently, I make bold to hold that the effect of a decision delivered outside the period stipulated in Section 294 (1) of the 1999 Constitution, is that such a decision is not a nullity unless it has occasioned a miscarriage of justice. See AYINKE STORES LIMITED vs. ADEBOGUN (2008) 10 NWLR (PT.1096) 612.

In a summation, since the decision of the Lower Court cannot be impeached solely on the ground that it was delivered outside the ninety days period stipulated in Section 294 (1) of the 1999 Constitution, the concomitance is that the appeal is devoid of merit and it is hereby dismissed. The sum of N50, 000.00 is awarded as costs in favour of the Respondents.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the judgment in draft prepared and just delivered by my learned brother, the Hon. Justice U. A. Ogakwu, JCA, Having equally perused the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, as a whole, I cannot but concur with the reasoning and conclusion reached in the lead judgment, to the effect that the instant appeal is devoid of merits.

Undoubtedly, of the two issues postulated upon by the Appellant in the brief thereof, the second issue is most instructive. The said second issue raises the vexed question, thus:
“(2) What is the effect of a decision which was delivered outside the three months stipulated in Section 294(1) of the constitution of the Federal Republic of Nigeria?”

In the instant appeal, the fact that the vexed ruling of the Lower Court was delivered outside the statutory time limit of 90 days is not at all in doubt. The hearing of the Appellant’s preliminary objection in question was commenced on 29/10/02, and concluded on 15/11/02. Consequent upon which, the Lower Court adjourned to 26/11/02 for delivery of the ruling. However, for reasons best known thereto, the Lower Court could not deliver the ruling until much later on 16/5/03. By the said ruling, the Lower Court held conclusively to the following effect;

This application or preliminary objection therefore fails because it is not an objection to the capacity expressed by the plaintiffs on the Writ of Summons in which case there would have been a supporting affidavit provoking a reply, but is an attempt to urge that the suit or motion is incompetent for the failing to obtain leave or authorisation to sue in a representative capacity. In conclusion, the preliminary objection not being properly conceived is hereby overruled, I make no order as to costs.

The provision of section 294(1) of the 1999 constitution, as amended is to the effect, thus:
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 cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

The above provision of section 294(1) of the 1999 constitution (supra) was lifted word-for-word from the provision of section 258(1) of the defunct 1979 constitution. Interestingly, from the historical perspective, the problems that bedevilled the construction of section 258 of the defunct 1979 construction have continued to pose difficulties, to use the words of His Lordship, Karibi-Whyte, JSC –
“despite valiant judicial efforts to construe the provision and its subsequent amendment in light of the problems disclosed by its operation and application.” See OKOLOBO V. ALAMU (1987) 2 NSCC 991 @ 1018, LINES 50 -51.

In the case of IFEZUE VS. MBADUGHA (1984) 5 SC 79, the Apex court reiterated that the words contained in section 258(1) of the 1979 constitution were clear, positive, and unambiguous thus literal interpretation must be accorded thereto. It was authoritatively held by the Apex court that:
To hold otherwise, would, in my view, before this court to perpetuate the mischief intended by the legislators to be prevented by the enactment of that section.
… Failure by any court of those courts to give its judgment within the period required by the section, is a violation of the provision and the so called judgment delivered outside the period is no judgment at all and accordingly, null and void and entirely of no legal effect. Per Aniagolu, JSC (of blessed memory) at 33 – 35 paragraphs D – A.

The above seemed to be the majority view and decision of the Supreme Court, with the exception of Bello, JSC (as he then was) who dissented, thus:
With due respect, I am unable to agree with the decision of my learned brothers that the judgment of the Court of Appeal delivered in breach of section 258(1) of the constitution is null and void and that the Court of Appeal has to start all over again to hear and determine the appeal afresh. The argument that the Court of Appeal is not bound by the provisions of the subsection may be summarily dismissed.
…
It seems to me from the foregoing, to construe the subsection mandatory will not promote but will frustrate its object and purpose. Instead, of being a vehicle for expeditious administration of justice and hinder the speed with the consequential inconveniences and inflation in the costs of litigations. On the other hand to construe the subsection directory will be a panacea for all the malais and ills of its mandatory meaning. These are the reasons that induce me to put directory meaning to the subsection, Accordingly, I hold that the judgment of the Court of Appeal delivered in breach of the first limb of section 258(1) of the constitution is valid.

Undoubtedly, the decision in IFEZUE VS. MBADUGHA (supra) was accepted grudgingly by lawyers due to the fact that contravention of the provision even by one day was relied upon to set aside very well reasons decisions. See GAFARI VS. JOHNSON (1986) 5 NWLR 66. Most unfortunately, the provision of section 258(1) of the 1979 constitution (supra) then became the panacea for appellants who had no other reasonable ground of appeal.
Regrettably, appeals were allowed, and cases remitted to the Lower Courts without being determined on the merits by the appellate courts.
Gladly, the few dissenting views courageously echoed by Bello, JSC (as he then was) and others were not in vain. On 7/8/85, the Constitution (suspension And modification) (Amendment) Decree No.17, 1985 was promulgated.
By section 6 of the said Decree, section 258 of the 1979 constitution, (supra) was amended by adding subsections (4) and (5) thereto, thus:
258-
(4) 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 this section unless the court exercising jurisdiction by way of an appeal from a review of that decision is satisfied that the party complaining of such noncompliance has suffered a miscarriage of justice by reason thereof.
(5) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the court shall report on the case to the chairman of the Advisory judicial Committee who shall keep the committee informed for appropriate action.
Later in the case of OJOKOLOBO VS. ALAMU (1987) 2 NSCC 991, the Apex Court reiterated that section 258(1) provided that for a ‘court Judgment’ to be valid, it must be delivered within 3 months, and that any judgment delivered by a court after that mandatory 3 months period is a Judgment delivered without jurisdiction. And that section 258(4) now allows an appeal court to examine the judgment and determine whether or not there was a miscarriage of justice, and if there’s, the Judgment cannot be treated as a nullity.
While allowing the appeal for different reasons, Bello, CJN maintained the view, thus:
“Now, it is clear to me that the direction under subsection 258(1) of the constitution that every court shall deliver its decision in writing not later than three months from the conclusion of evidence and final addresses is purely procedural and does not in any way affect the rights of the parties.
…
It is clear that the amendment does no more than to resolve the contentious issue in Ifezue case as to whether or not mere non-compliance with the subsection renders the decision of a court null and void. The amendment resolves the Issue in the negative,
…In Odi & Anor. v. Osafile (1985) 1 NWLR 17 this court exhaustively considered the significance of adhering to the rule of stare decisis in constitutional cases and set out the circumstances on which the court may depart from its previous decision… I am satisfied with the decisions in Kpema and Taylor cases were reached per incuriam but as I pointed out in Odi v. Osafile (supra) such decisions will not perpetuate hardship or injustice. Accordingly, one of the circumstances i.e, perpetuating hardship or injustice that will warrant the court to depart from the decisions in Kpema and Taylor cases has not been satisfied.
I would therefore allow the appeal and it is hereby allowed, I endorse the orders made by my learned brother, Nnomani, JSC.
However, Karibi-whyte, JSC, in his dissenting judgment (at page 1018, lines 51 – 54 and 1019, lines 22 – 45) aptly observed, thus:
There is no doubt that on the express words of the provisions without reading in to them words which the legislature omitted but ought to have added to save the provision from abundity, this construction cannot be faulted. See Ogunmade v. Fadayiro (1972) 8 – 9 SC 1, Nabham v. Nabham (1967) 7 All NLR 42, However, the lone dissenting opinion of M. Bello JSC (now CJN) as he then was) in that pointed out the inconvenience and injustice that will result from giving the provision a mandatory construction. He held that it should be as directory, so that the non-compliance with the provision will merely be regarded as irregular and the act consequent will only be void where the non-compliance will result in a miscarriage of justice.
… It was in this background that the amendment of section 258, by S.6 of the Constitution (suspension and Modification) (Amendment) Decree No.17 of 1985 was promulgated and by subsection (4) of section 258 providing that 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 section 258(1) and enabled appellate courts to consider whether the non compliance complained or had resulted in a miscarriage of justice.

It is trite that the exercise of the court’s power to set aside the Judgment of the Lower Court, under section 294(1), is not merely as a matter of course. The Appellant is under a duty to establish that by such delay in delivering the ruling by the Lower Court, he has suffered a miscarriage of justice. See Section 294(5) of the 1999 constitution, thus:
294 –
(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 by way of appeal or review of that decision is satisfied that the complainant has suffered a miscarriage of justice by reason thereof.

As alluded to above, in determining whether or not a party has suffered a miscarriage of justice consequent upon a delay in delivering the decision of a court between the conclusion of trial and delivery of the decision, the emphasis is not so much on the length of time per se, but rather on the adverse effect resulting from the delay. In the present case, it’s rather obvious that the Appellant has failed to satisfy the requirements of subsection (5) of section 294 of the 1999 constitution as amended (supra) by establishing that in addition to non-compliance with subsection (1) of section 294 (supra), i.e. for delivering the vexed ruling after three months of the conclusion of hearing of the preliminary objection and final addresses thereon, and that the non compliance thereby had resulted in a miscarriage of justice thereto.

Hence, in the light of the above postulations and the detailed reasoning and conclusion reached in the lead judgment, I have no hesitation in holding that the instant appeal is devoid of merits, and it’s equally hereby dismissed by me. I abide by the order of costs of N50,000.00 awarded in favour of the Respondents, against the Appellants.

HAMMA AKAWU BARKA, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother OGAKWU JCA, just delivered. I agree with my brother that the appeal lacks merit, and is hereby dismissed by me. I wish to add that a person complaining against a judgment rendered in contravention of S. 294(1) of the 1999 Constitution, must show to the court that the non compliance occasioned a miscarriage of justice against him. He has the evidential burden, otherwise the lapse occasioned by the section is excusable by reason of S. 294(5) of the same Constitution. Owoyemi Vs. Adekoya (1998) 8 NWLR (Pt. 560) 74; Dibiameke Vs. Osakwe (1989) 3 NWLR (Pt.107) 1010 at 141 – 115; Mil. Governor of Ondo State Vs. Ajayi (1998) 3 NWLR (Pt. 540) 27.

That not having been shown in the instant case, the question as to whether the decision is not rendered a nullity, will not arise.
For this and the more detailed reasons given in the lead judgment, I too dismiss this appeal and abide by the consequential order made as to costs.

Appearances

Parties and Counsel absentFor Appellant

AND

For Respondent