MR. R.O. OGUNDAYOMI V. CHIEF AKINBOLU
(2011)LCN/4471(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/B/52/2002
RATIO
GROUNDS OF APPEAL: CONSEQUENCE OF FAILING TO FRAME ISSUE FOR DETERMINATION FROM A GROUND OF APPEAL; WHETHER IT IS PROPER TO FRAME MORE THAN ONE ISSUE FROM A GROUND OF APPEAL
There are 12 grounds in the appellant’s amended notice of appeal. However learned counsel framed issues from grounds 1 & 2, 3, 5 – 12. He did not frame issue from ground 4 and the said ground is hereby deemed abandoned and accordingly struck out – See Ojiegbe & Anor v. Omatsone (1999) 6 NWLR (Pt.608) 591 Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208 Abisi v. Ekweala (1993) 6 NWLR (Pt. 302) 643. Further more it is observed that ground 7 was split and shared by issues 1 and 3. This is not good practice. Neither the ground of appeal nor issue in appeal should be split. PER NWALI SYLVESTER NGWUTA, J.C.A.
STATUTORY PROVISION: PROVISION OF SECTION 294 (1) AND (5) OF THE CONSTITUTION 1999 AS TO WHETHER A DECISION OF A COURT DELIVERED AFTER NINETY DAYS FOLLOWING THE CONCLUSION OF EVIDENCE AND FINAL ADDRESSES WILL BE SET ASIDE OR TREATED AS A NULLITY
294 (1) of the Constitution 1999 alleged to have been violated by the learned trial Judge provides S. 294(1): “Every Court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses ….” (5) “The decision of a Court shall not be set aside or treated as a nullity solely on the grounds of non-compliance with the provisions of subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of Justice by reason thereof.” PER NWALI SYLVESTER NGWUTA, J.C.A.
EVALUATION OF EVIDENCE:EFFECT OF THE FAILURE OF THE TRIAL COURT TO EVALUATE THE EVIDENCE BEFORE IT
In Buhari v. INEC (2008) 9 NWLR (pt. 1120) 246 at 372 Para F the Supreme Court held that Justice cannot be determined in vaccuo but on the facts of the case. The trial Court failed in its duty to evaluate the evidence of pw2 and pw3 and expressly or implicably believe or disbelieve each in arriving at its conclusion in the case. See Ojogbue & Anr. V. Nnubia & ors (1972)1 All NLR (Pt. 2) 226. The failure to do so makes the basis of the Judgment doubtful. See Mogaji & ors. v. Odofin & ors. (1979) 3 SC 91 at 95, Ezeoke v. Nwagbo (1988) 1 NWLR (pt. 666) 627 for duty of the trial court with respect to the evidence adduced at trial. PER NWALI SYLVESTER NGWUTA, J.C.A.
MISCARRIAGE OF JUSTICE: MEANING OF “MISCARRIAGE OF JUSTICE”
In Onogoruwa v. The State (1983)7 NWLR (Pt. 3030) 49 the Supreme Court held that “Miscarriage of Justice means failure on the part of the Court to do Justice. It is Justice misplaced. Mis-appreciated or misappropriated. It is an ill conduct on the part of the Court which amounts to injustice” per Niki Tobi JSC. The concept of miscarriage of Justice is denoted by the facts of the case and so it varies from case to case. See Ojo v. Anibire (2004) 10 NWLR (Pt.786)195, Oguntayo v. Adebayo (2009) 5 NWLR (P1.1163) 150 at 186 – 187 Para G – B. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. R.O. OGUNDAYOMI (for himself and on behalf of Amos Okunrinpo family of Idepe Okitipupa) Appellant(s)
AND
CHIEF AKINBOLU Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Judgment delivered on 18th May, 2001 by the Okitipupa Judicial Division of the Ondo State High Court of Justice presided over by Obaremo, J.
Indorsed on the writ of summons issued on 30th September, 1999 are the plaintiff’s two claims against the defendant:
“(a) Five Hundred Thousand Naira (N500, 000.00) only for trespass committed on the land of the plaintiff at Odelawe Igedege in Okitipupa Local Government.
(b) And perpetual injunction restraining the defendant and or his agent from further trespass on the said land.”
The claims are also reproduced in paragraph 8 (a) and (b) of the statement of Claim as amended, dated 3rd May, 2000 and filed on 4th May, 2000.
The 9 paragraph statement of defence in which the defendant denied the plaintiff claims was dated and filed on 15/11/99. The plaintiff’s reply to the statement of defence was dated 20/12/99 and filed on 30/12/99.
The plaintiff testified and called two other witnesses for his side while one Mr. Owoboye Metajuwa was the sole witness for the defence.
At their instance learned counsel for the parties filed written addresses. There is no indication that learned counsel subsequently adopted and relied on their written addresses. After several unexplained adjournments the trial Court delivered its Judgment on 18/5/2001. In the said Judgment the trial Judge concluded thus “In conclusion, I hold that the plaintiff did not discharge the onus of proving that the land in dispute in this case is within the area upon which a declaration of title is granted to his family by the Supreme Court in Suit No. SC.48/90…” See page 29 of the main records. The trial Court dismissed the plaintiff’s case with N5, 000.00 costs in favour of the defendant.
Aggrieved by the said Judgment, the plaintiff, now appellant, appealed to the Court on the 12 grounds contained in the amended notice of appeal dated 10/4/2002 and filed on 22/4/2002 with the leave of Court.
The parties herein, by their respective learned counsel, filed and exchanged briefs of argument.
In his brief of argument learned counsel for the appellant identified four issues for the Court to resolve. The issues are:
“12.01 Whether or not the defendant proved a better title or ownership than the plaintiff that could justify the Judgment was (sic) given in the defendant’s favour.
2.02. Whether or not the clear violation of section 294(1) of the constitution of the Federal Republic of Nigeria 1999, by delivering the Judgment in this case out side the period stipulated by the constitution occasioned miscarriage of justice.
2.03. Whether or not the proper appraisal of the evidence adduced before the court is made by the learned trial Judge before dismissing the case of the plaintiff.
2.04. Whether the learned trial Judge has power to interpret the Judgment of the Supreme Court as he did in this case.”
In his own brief of argument learned counsel for the Respondent presented these three issues for the Court to determine:
*4. Whether the learned trial Judge has the jurisdiction to and if so whether he properly appraised the evidence of the Judgment of the Supreme Court contained in exhibit ‘D’ before coming to the conclusion that the plaintiff failed to prove its case in the circumstances of this case.
B. Whether the learned trial judge correctly and properly placed the respective onus of proof on the parties in this case.
C. Whether in the circumstances of this case the appellant was able to show that the failure of the trial Judge to deliver his Judgment within 90 days occasioned a miscarriage of Justice to the plaintiff.” Learned Counsel of the appellant stated that issue one was distilled from grounds 5, 6, 7, 8 & 12; issue two from grounds 2 and 3; issue three from grounds 1,7, 9 & 11; and issue four from ground 10 of the grounds of appeal.
There are 12 grounds in the appellant’s amended notice of appeal. However learned counsel framed issues from grounds 1 & 2, 3, 5 – 12. He did not frame issue from ground 4 and the said ground is hereby deemed abandoned and accordingly struck out – See Ojiegbe & Anor v. Omatsone (1999) 6 NWLR (Pt.608) 591 Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208 Abisi v. Ekweala (1993) 6 NWLR (Pt. 302) 643. Further more it is observed that ground 7 was split and shared by issues 1 and 3. This is not good practice. Neither the ground of appeal nor issue in appeal should be split.
I have considered the issues presented by the parties. Appellant’s four issues encompass the three issues in the Respondent’s brief. Appellant’s issue 2 is threshold I will take the issue before taking any issue, if need be, that may involve the merit vel non of the appellant’s case.
But first I will pause to comment on the novelty introduced in brief writing by learned counsel for the appellant. In issues 1, 2 and 3 learned counsel prefaced his argument with a statement of the main issue for determination in the grounds of appeal from which he formulated each issue. Learned counsel rightly stated the grounds of appeal from which each issue is distilled. Counsel may, at the conclusion of argument on an issue, urge the Court to allow the appeal based on the grounds from which the issues are framed; but that is as far as reference can be made to the grounds of appeal in the appellant’s brief of argument. Grounds of appeal commence, and end their journey within the four walls of the notice of appeal. Argument in the brief are based not on the grounds of appeal but on the issue distilled therefrom. Grounds of appeal should not be enumerated and/or argued in the brief. See Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544 at 561 (SC) Para H.
Appellant’s complaint in issue 2 is that the learned trial Judge Obaremo J, delivered the Judgment in the Suit in contravention of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999. Counsel referred to page 58 lines 1 – 9 of the records and said address of counsel ended on 30th October, 2000 from which date Judgment was reserved till 6th December, 2000. He said that the Judgment was not delivered until 18th day of May, 2007 outside the period stipulated in S. 294 (1) of the Constitution. He referred to S. 294(5) and the Judgment of the Supreme Court in Ogundete v. Fasu (1999) 9 SCNJ 105 at 112 and contended that the delivery of the Judgment seven months after final addresses occasioned miscarriage of justice in that the learned trial Judge, due to lapse of time, omitted the testimony of PW2 and PW3 in writing the Judgment. He referred to affidavits of PW2 and PW3 exhibits A and B as evidence that the two witnesses testified at the trial. Learned counsel urged the Court to hold that the learned trial Judge had lost memory of the facts and evidence in the case before the judgment was written. He urged the Court to allow the appeal on the grounds from which the issue was distilled.
In his argument on the issue in his brief learned counsel for the Respondent referred to S. 294 (1), (5) and (6) of the Constitution and Oto v. Adojo (2003)7 NWLR (Pt. 820) 436 at 662 and contended that the Judgment cannot be treated as a nullity merely because it was delivered outside the time frame of S. 294 (1) of the Constitution. He argued that the appellant must satisfy the Court that a miscarriage of Justice resulted from the delay in the delivery of the Judgment. Learned counsel said that the evidence of PW2 and PW3 which was inadvertently omitted has been supplied as part of the record of appeal thereby disproving the assertion that the appellant suffered miscarriage of justice.
S. 294 (1) of the Constitution 1999 alleged to have been violated by the learned trial Judge provides S. 294(1): “Every Court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses ….”
(5) “The decision of a Court shall not be set aside or treated as a nullity solely on the grounds of non-compliance with the provisions of subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of Justice by reason thereof.” I indicated earlier that learned counsel for the parties filed and exchanged written addresses, but the record does not show if, and when, the addresses were adopted and relied on. Respondent’s counsel’s address was dated 13th October, 2000 and that of the appellant was dated 24th October, 2000.
After the written addresses had been filed the matter was listed on 30th October, 2000 from which dated it was adjourned to 6th December, 2000 for judgment. On 6/12/2000 the brief record of the trial Court showed: “Court: – case is adjourned to 10/1/2001 for judgment.” see page 58 of the record. It was signed by “Oluwore Fagbe – Judge”.
On 10/1/2001 the record showed, in part: “… Mr. Semudara says this is a case which has been concluded and awaiting Judgment by the former Judge who heard it. He therefore asks for an adjournment.
Court: – case is adjourned to 21/2/2001 for judgment.” It was once more signed by Hon. Oluwole Fagbe Judge.
The case did not come up on 21/2/2001 a date to which it was adjourned for Judgment. The case resurfaced on 18th May, 2001. The Judgment was delivered by Obaremo J. on the said date (18/5/2001). As I said before the records does not show when the Counsel adopted their final addresses or if the written addresses were ever adopted. Also it can not be determined from the record if, and when, the addresses were filed in Court. In the circumstance the 90 day period stipulated in S. 294(1) of the Constitution within which the judgment ought to have been delivered will be calculated from the date the case was initially fixed for Judgment i.e. 30/10/2000. Viewed from 30/10/2000 when the Judgment was reserved to 18/5/2001 when the Judgment was eventually delivered is a period of more than seven (7) months. It follows as argued by learned counsel for the appellant, that Judgment in the suit was delivered not within, but outside, the 90 day period prescribed in S.294 (1) of the Constitution.
S. 294(1) of the 1999 Constitution is similar to S. 258(1) of the 1979 Constitution except that the phrase “on the date of delivery thereof in s. 258(1) of the 1979 Constitution was replaced by the phrase “within seven days of the delivery thereof in S. 294 (1) of the current Constitution. The time limiting provision in the Constitution is meant to prevent what has happened in this case – Undue and prolonged delay in the writing and delivery of judgments. A prolonged delay will deprive the Judge of the advantage of having seen the witnesses and observed their demeanour for the important purpose of assessing their credibility. See Paul Odi & Anor v. Gbamiyi Osafile & Ors (1985) 1 SC 37 at 39 – 40. In Ifezue v. Mbadusha & Anor (1984)5 SC 79, Ojo v. Ogisanyin & Ors (1985) 1 SC 37 decided on S. 258(1) of the 1979 Constitution the Supreme Court set aside the decisions delivered outside the limit set in S. 258(1) of the Constitution. In Sodipo v. Leminkainen of (1985) 2 NWLR 542 it was held that Judgment delivered one day beyond the time stipulated in S. 258 (1) of the 1979 constitution was rendered null by the one day delay. It was held in the same case that after the time stipulated for the delivery of Judgment the Judge is functus officio and has no more the jurisdiction to deliver the Judgment. Within the time stipulated in the Constitution for delivery of Judgment the Judge could recall counsel and parties for further argument but that device, cosmetic as it would appear in some cases, was not even resorted to in this case: There was no explanation whatsoever for a delay of over seven months from the date the matter was reserved for Judgment. Be that as it may the stricture imposed by time in S.294 (1) of the 1999 Constitution has been mellowed by S. 294 (5) thereof already reproduced in this Judgment. Learned counsel for the Respondent, confronted with the scandalous and inordinate delay in the delivery of the Judgment, sought refuge in the saving provision of subsection 5 of Section 294 of the Constitution. He argued that as the evidence of PW2 and PW3 has been recovered and made part of the record it cannot found a claim of miscarriage of Justice and the issue of loss of memory is moot as the evidence is largely documentary.
With profound respect to the learned trial Judge not only that his Lordship treated S. 294(1) of the 1999 Constitution with contemptuous non-challenged or worse still utmost ignorance, His Lordship’s record presents a case study in inconsistency and unreliability. The plaintiff (now appellant) opened his case on 3/5/2000. His cross-examination was concluded on 17/7/2000 and the Court adjourned the case “to 27th and 28th day of July, 2000 for further hearing.” See page 29 of the record. The case for whatever reason was not listed on 27/7/2000 and surprisingly on 28/7/2000 the defence opened without the plaintiff resting his case formally or informally. For the purpose of this appeal and its peculiar facts I will draw a distinct between the record properly so – called and the Judgment which is part of the record in its wider meaning.
The record showed that Rufus Omotayo Ogundayomi was the sole witness for his side. However one Owoboye Metajuwa who testified for the defence made reference to PW3 in his testimony. See pages 32 and 33 of the records, and what is more curious, the learned trial Judge on pages 62 and 63 of the records summarized the evidence of PW2 and PW3. Also pages 1 to 3 of the supplementary record contain the evidence of PW2 and PW3. The proceedings were recorded on 17th day of August, 2000 but there was no proceeding in the main record on 17/8/2000. In the main record there was no adjournment to 17/8/2000. The matter was on 17/7/2000 adjourned to 27th and 28th July, 2000 for further hearing. The case did not come up on 27/7/2000 but on 28/7/2000 it came up and the defence opened its case. The disturbing question for which neither the main record nor the supplementary record has an answer is where were the proceedings in the supplementary record, especially the evidence of PW2 and PW3 originally recorded? For all practical purposes the plaintiff’s case was closed on 17/7/2000 and the defence opened its case on 28/8/2000. See pages 29 and 30 of the record. In the distinction, I drew between the record and the Judgment in a particular case the latter must manifest and demonstrate the contents of the former. In other words the Judgment must be based on the record of proceedings in the sense of the processes filed as well as the Court’s recording of the evidence of witnesses at the trial. See Buhari v. INEC (2008) 9 NWLR (Pt.1120)246 at 372 Para F. Evidence of PW2 and PW3 was allegedly recorded on 17/8/2000 but there is no record of any adjournment between 17/7/2000 when the PW1’s cross-examination was concluded and 28/8/2000 when the defence opened its case. I cannot determine from the records the date from which the matter was adjourned to 17/8/2000 when the PW2 and PW3 allegedly testified. PW2 and PW3 each swore that he testified in the trial on 27th of July, 2000 contrary to the supplementary record which indicates that the witnesses testified on 17/7/2000. The two dates 17/7/2000 and 27/7/2000 contradict the main record which showed that after the PW1 was cross-examined on 17/7/2000 the defence opened on 28/8/2000. See pages 29 and 30 of the records. The Judgment of the Court below runs from pages 59 to 80 of the records. The trial Court summarized the evidence of the PW1 in chief and under cross-examination. It left out the evidence of PW2 and PW3 and jumped to what it called the defence of Mr. Owoloyo Metajuwa even though the witness is not a party directly or by representation to the proceedings. After ten lines of summary of the evidence of the witness Mr. Owoloyo Metajuwa “in his defence” the trial Court abandoned the summary and went on to the evidence of PW2 and PW3. See pages 61 – 63 of the main records. However in the supplementary record the Court summarized the evidence of PW2 and PW3 before stating “In his defence the witness Mr. Owoloyo Metajuwa said …..” and embarked on a three page summary of the evidence of this witness in his defence against a ten line summary in the main record. See pages 6 to 8 of the supplementary record. At page 71 of the main record and page 14 of the supplementary record the trial Court in apparent formulation of its guide to the determination of the case stated “I have given a calm and prolonged thought to this case. I have come to the conclusion that to understand the mass of the oral documentary evidence tendered in the case by both parties, it is to the pleadings that I have to look through. I have examined carefully the pleadings so that I may adequately define the crucial and central issue which will itself give the plaintiff a right to the relief he claims. I have also given considerations arising from other subsidiary issues to enable me see whether the plaintiff is entitled to the relief he claim.” Consistent with the above self imposed guide the trial Court reached a conclusion in the matter without a further thought to the evidence of the PW2 and PW3. In Buhari v. INEC (2008) 9 NWLR (pt. 1120) 246 at 372 Para F the Supreme Court held that Justice cannot be determined in vaccuo but on the facts of the case. The trial Court failed in its duty to evaluate the evidence of pw2 and pw3 and expressly or implicably believe or disbelieve each in arriving at its conclusion in the case. See Ojogbue & Anr. V. Nnubia & ors (1972)1 All NLR (Pt. 2) 226. The failure to do so makes the basis of the Judgment doubtful. See Mogaji & ors. v. Odofin & ors. (1979) 3 SC 91 at 95, Ezeoke v. Nwagbo (1988) 1 NWLR (pt. 666) 627 for duty of the trial court with respect to the evidence adduced at trial.
In order to determine whether the plaintiff is entitled to the relief he claims the trial Court had “also given consideration arising from other subsidiary issue. The question is – what were those other subsidiary issues the trial Court considered in resolving the sole issue in the case? The answer is not expressed or implied in the Judgment or in the record leaving the impression that the subsidiary issues were extraneous to the proceedings.
The abnormalities I have set out above can only be attributed on the peculiar facts of this case, to avoidable lapse of human memory as a result of effluxon of time, a lapse which S. 294(1) of the 1999 Constitution S. 258(1) of the defunct 1979 Constitution) is intended to prevent.
In my humble view the appellant has not only demonstrated a violation of S. 294(1) of the constitution by the trial Court in the delivery of its Judgment seven months from the close of the case and final addresses but has shown a miscarriage of Justice as a direct result of the violation. Justice between the parties is the sole aim of judicial proceedings and where Justice is not done the result is injustice. When a decision of a Court does not reflect the quality of being Just and fair justice finds itself in the wrong vessel as it were and it is miscarried. It is inconsistent with the legal right of a party to the action. In Onogoruwa v. The State (1983)7 NWLR (Pt. 3030) 49 the Supreme Court held that “Miscarriage of Justice means failure on the part of the Court to do Justice. It is Justice misplaced. Mis-appreciated or misappropriated. It is an ill conduct on the part of the Court which amounts to injustice” per Niki Tobi JSC. The concept of miscarriage of Justice is denoted by the facts of the case and so it varies from case to case. See Ojo v. Anibire (2004) 10 NWLR (Pt.786)195, Oguntayo v. Adebayo (2009) 5 NWLR (P1.1163) 150 at 186 – 187 Para G – B. On the peculiar facts of this case it is my view that the trial Court, by its unexplained and inexcusable tardiness effectively disabled itself from doing justice in the case, thereby occasioning a miscarriage of justice.
A court below the apex court has a duty to resolve all competent issues presented by the parties, but on the peculiar facts of this case it serves no useful purpose to resolve other issues in the appeal. Resolving the other issues in alternative to my resolution of issue 2 will prejudice the case of one of the parties at retrial.
Learned counsel merely urged the court to allow the appeal and did not ask for any other relief.However the Court in giving its judgment has power to make such further order as the case may require. See order 18 rule 11(1) of the Court of Appeal Rules 2007.
In consequence of all the above I hereby declare the Judgment of the trial Court in this case a nullity. I order that the Suit be retried by a Judge of Ondo State High Court other than the Hon. Justice Obaremo. I make no order for costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Nwali Sylvester Ngwuta JCA. Upon perusal of the record of appeal and the briefs of argument of the parties, I am of the view that my learned brother considered and resolved all the issues in contention in the appeal, I agree with the reasoning contained therein and the conclusions arrived thereat.
MOORE A.A. ADUMEIN, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother – NGWUTA, JCA.
I agree with His Lordship’s reasoning and conclusion that the appeal be allowed and it is hereby allowed.
I abide by all the consequential orders in the lead judgment.
Appearances
J.O. Semudara Esq.For Appellant
AND
Chief B.F. Adeleye Esq.For Respondent
