NIDB v. ROLISCO (NIG) LTD
(2022)LCN/17207(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, July 26, 2022
CA/A/128/2006
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
NIGERIAN INDUSTRIAL DEVELOPMENT BANK APPELANT(S)
And
ROLISCO NIGERIA LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE TIMEFRAME FOR THE COURT TO DELIVER ITS JUDGEMENT ON A MATTER
By Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, 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.
This provision is express and specific on the fact that every Court established under the Constitution inclusive of the trial Court shall deliver its decision in writing not later than 90 days after conclusion of evidence and final addresses. This provision is mandatory. Failure to comply with the provision has two pronged repercussions. Firstly, the decision is liable to be set aside on appeal if the appellate Court is satisfied that such a breach has caused the appellant to suffer a miscarriage of justice. Secondly, the judge who caused the breach is liable to be reported to the National Judicial Council (NJC).
The appellate Court who is reviewing the decision that was delivered out of the time of ninety days should not primarily set aside the decision or treat the decision as a nullity on the face value by the reason of such non-compliance with Section 294(1). The appellate Court is enjoined to consider the complaint of the appellant and deal with it, if it is satisfactorily shown that such non-compliance with Section 294(1) of the Constitution has occasioned a miscarriage of justice to the appellant. In essence, failure by the Court concerned to deliver judgment within 90 days from conclusion of evidence and final address does notipso facto render such a judgment automatically null and void and of no effect. Such a decision shall only be set aside or treated as a nullity by the appellate Court if it is satisfied that the appellant or complainant has suffered a miscarriage of justice thereby. See Owoyemi v. Adekoya & Ors (2003) 18 NWLR (Pt. 852) 307, Akpan & Ors v. Umoh & Ors (1999) LPELR – 375 (SC), State v. Kapine & Anor (2019) LPELR-49511 (SC). PER ADAH, J.C.A.
THE POSITION OF LAW ON THE TERM “MISCARRIAGE OF JUSTICE”
The term miscarriage of justice is not too difficult to appreciate. It deals with the error in the judgment of the Court that is prejudicial to the party complaining. In Larmie v. Data Processing Maintenance Services Ltd (2005) 18 NWLR (Pt. 958) 438, Onnoghen, JSC, (as he then was) said:
“The term “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.”
In the same vein, Tobi, JSC, in the case of Pam & Anor v. Mohammed & Anor (2008) LPELR – 2895 (SC), held that:
“Miscarriage of justice is simply justice miscarried. I do not think I have said much. I should go further to say that miscarriage of justice is failure of justice. It is the failure on the party of the Court to do justice. It is justice misapplied, misappreciated or misappropriated. It is an ill conduct on the part of the Court which amounts to injustice. See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49. Miscarriage of justice arises in a decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial right of a party. See Joshua v. The State (2000) 5 NWLR (Pt. 658) 591, Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.” PER ADAH, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF THEIR CONTRACT
In respect of these issues two and three, it is worthy of note that parties to any contract are bound by the terms of their contract. The terms of the contract of the parties were agreed by them to govern their transaction. By the doctrine of sanctity of contract, each of the parties are required to stick to the terms and carry out their duties under the contract. See the cases of ABC (Transport Company) Ltd v. Miss Bunmi Omotoye (2019) LPELR – 47829 (SC), Idufueko v. Pfizer Products Ltd & Anor (2014) LPELR – 22999 (SC), AIB Ltd v. Integrated Dimensional System Ltd & Ors (2012) LPELR-9710 (SC), A.G. River State v. A.G. Akwa Ibom State & Anor., (2011) LPELR-633 (SC). PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State, sitting in Minna, delivered on the 19th October, 2004, in Suit No. NSHC/22/1991.
The respondent as claimant instituted this action at the trial Court and claimed against the appellant as defendant all the sundry reliefs as per the Statement of Claim, thus:
a.) A Court declaration that the final notice purportedly given to the plaintiff dated 2nd January, 1992 by the Defendant jointly and severally is null and void, illegal, unlawful and of no effect whatsoever.
b.) A Court’s perpetual injunction restraining the defendants, their servant, agent, privies from removing, carrying and seizing the said machines for sale.
c.) A Court’s Order compelling the defendant jointly and severally to perform its own side of the contract.
d.) A Court’s determination of the true indebtedness of the plaintiff to the defendant’s minus the loss occasioned the plaintiff for non-performance of the contract by the defendant.
e.) A Court’s declaration that there is no valid legal mortgage between the plaintiff and the defendants jointly and severally.
f.) A Court’s Order determining the cost of the machines and interest payable.
g.) A Court’s determination of the accrued interest covering the period of warehousing the machine.
h.) A Court’s true determination of the accrued interest and commitment charges as at the date of actual disbursement of loan.
i.) A Court’s true determination of the accrued interest during all the periods the project was being reviewed.
j.) A Court order to determine the accrued interest as at the time the bank committed itself towards the cost of installation and the time the bank was requesting for the payment of the total cost of machinery and accrued interest.
k.) A Court determination of what the plaintiff is being charged for by the defendants jointly and severally when he requested for disbursement and the money was not available.
l.) The Court should determine the appropriate rate of interest in view of the different interest rates quoted in the two deeds even though the latter deed was backdated to 1982.
m.) A Court’s determination whether the required legal consents as per the Land Use Act 1978 were obtained and whether the appropriate authorities signed the letters of consent in respect of the two deeds of legal mortgage.
n.) The plaintiff claims N700,000.00 as special and general damages for fundamental breach of contract against the defendants jointly and severally.
This case was originated by the respondent who as a plaintiff took out a Writ of Summons against the appellant at the lower Court. The Writ of Summons was taken out on the 22nd January, 1992, and sought the determination of five questions and several reliefs.
The parties joined issues and the lower Court on the 19th October, 2004 entered judgment for the Respondent, granting the reliefs sought in the Statement of Claim.
Aggrieved by the decision, the appellant filed this instant appeal vide the notice of appeal filed on the 26th June, 2006. There are eight grounds of appeal listed in the notice of appeal.
The Record of Appeal was transmitted to this Court on 5th October, 2012 but deemed properly filed and served on 25th January, 2017. The appellant filed his Brief of Argument on 10th March, 2017. The Respondent did not file any application neither did he file any Brief of Argument in his own defense, which prompted the appellant to file a Motion for the Court to hear the appeal on the Appellant’s Brief of Argument alone.
Learned counsel for the appellant in his Brief of Argument formulated five (5) issues from grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice and Grounds of Appeal, thus:
1. Whether it can be held that the learned trial judge still had vivid impression of the facts and evidence led at the trial when he delivered the judgment long after the constitutional period for delivery of judgment had lapsed? (Grounds 1 of the Notice of Appeal).
2. Whether the trial Court was right when it held that the Respondent did not breach a term of the contract imposing an obligation on the Respondent to provide working capital? (Grounds 2 & 3 of Notice of Appeal).
3. Whether the trial Court was right when it held that the Appellant breached a term of the contract when the Appellant provided the foreign currency and procured the machines two and half years into the contract? (Grounds 4 and 5 of the Notice of Appeal).
4. Whether in the circumstance of this case, the trial Court was right when it entered judgment in favor of Respondent, granting reliefs (i), (ii) and (iii) claimed by the Respondent? (Grounds 6 and 7 of the Notice of Appeal).
5. Whether the trial Court was right when it held that the Appellant failed to prove its counter-claim and dismissed same? (Ground 8 of the Notice of Appeal).
The appeal will be considered based on the issues formulated by the appellant’s counsel. I now start with issue one.
Issue One:
This issue is – Whether it can be held that the learned trial judge still had vivid impression of the facts and evidence led at the trial when he delivered the judgment Iona after the constitutional period for delivery of judgment had lapsed?
Learned counsel for the appellant while canvassing this issue pointed out that the constitutional mandatory period within which a Court is required to deliver its judgment after conclusion of trial and adoption of final address is 3 (three) months from the date of the adoption of final addresses. Any judgment which is not delivered within three months of the adoption of final addresses is a nullity. Counsel relied on the cases of S. B. N. Ltd v. Ind. O. Corp. (2009) 8 NWLR (Pt. 1144) P. 491 at P. 499, Paras. F-D. Learned counsel further submitted that in order for a party to show that an inordinate delay in delivery of judgment by the Court occasioned a miscarriage of justice, one has to demonstrate that the said delay caused the learned trial judge to lose grasp of evidence adduced and affected his perception, appreciation and evaluation of the evidence. Counsel cited the cases of Nagebu Co. (Nig.) Ltd v. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) Page 42 at 101, Akoma v. Osenwokwu (2014) 11 NWLR (Pt. 419) Page 462 at Page 497, Paras. E-F.
By Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, 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.
This provision is express and specific on the fact that every Court established under the Constitution inclusive of the trial Court shall deliver its decision in writing not later than 90 days after conclusion of evidence and final addresses. This provision is mandatory. Failure to comply with the provision has two pronged repercussions. Firstly, the decision is liable to be set aside on appeal if the appellate Court is satisfied that such a breach has caused the appellant to suffer a miscarriage of justice. Secondly, the judge who caused the breach is liable to be reported to the National Judicial Council (NJC).
The appellate Court who is reviewing the decision that was delivered out of the time of ninety days should not primarily set aside the decision or treat the decision as a nullity on the face value by the reason of such non-compliance with Section 294(1). The appellate Court is enjoined to consider the complaint of the appellant and deal with it, if it is satisfactorily shown that such non-compliance with Section 294(1) of the Constitution has occasioned a miscarriage of justice to the appellant. In essence, failure by the Court concerned to deliver judgment within 90 days from conclusion of evidence and final address does notipso facto render such a judgment automatically null and void and of no effect. Such a decision shall only be set aside or treated as a nullity by the appellate Court if it is satisfied that the appellant or complainant has suffered a miscarriage of justice thereby. See Owoyemi v. Adekoya & Ors (2003) 18 NWLR (Pt. 852) 307, Akpan & Ors v. Umoh & Ors (1999) LPELR – 375 (SC), State v. Kapine & Anor (2019) LPELR-49511 (SC).
The term miscarriage of justice is not too difficult to appreciate. It deals with the error in the judgment of the Court that is prejudicial to the party complaining. In Larmie v. Data Processing Maintenance Services Ltd (2005) 18 NWLR (Pt. 958) 438, Onnoghen, JSC, (as he then was) said:
“The term “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.”
In the same vein, Tobi, JSC, in the case of Pam & Anor v. Mohammed & Anor (2008) LPELR – 2895 (SC), held that:
“Miscarriage of justice is simply justice miscarried. I do not think I have said much. I should go further to say that miscarriage of justice is failure of justice. It is the failure on the party of the Court to do justice. It is justice misapplied, misappreciated or misappropriated. It is an ill conduct on the part of the Court which amounts to injustice. See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49. Miscarriage of justice arises in a decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial right of a party. See Joshua v. The State (2000) 5 NWLR (Pt. 658) 591, Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.”
In the instant case, the complaint is that the judge in the trial Court delayed and delivered judgment out of time and that the delay must have caused the learned trial judge not to have vivid impression of the facts and evidence led at the trial. The facts on record before us show that after concluding on evidence, the final addresses were delivered on 10th February, 1998. Judgment was reserved till 3rd March, 1998. The judgment was not delivered. By a letter of the appellant of 26th February, 2002 complaining of failure to deliver judgment, the learned trial judge invited the parties to address him again on 29th April, 2002. Then judgment was again set down for delivery on 30th July, 2002. The judgment was not delivered as scheduled until 19th of October, 2004.
This, no doubt, is unprecedented and I must say with a heavy pain that the delay in delivering judgment is not only inordinate, it is an exhibition of high level of insensitivity and an abuse of privilege the society bestowed upon him (trial judge) as a judge. The delay was long and inexplicable. This fact, notwithstanding, what this Court is to consider is the interest of justice having due regards to the circumstances of this case.
This case originates from a dispute of the parties to this appeal over a loan facility the appellant, an Industrial Development Bank, gave the respondent for the respondent’s business since October, 1981. The loan facility from the facts before us remained unpaid till this matter was filed before the trial Court on 22/01/1992. The matter was before the trial Court till judgment was eventually delivered in the case on the 19th day of October, 2004. The appeal was filed on the 26th day of June, 2006. The appeal had been languishing in the registry till it was finally heard now. Furthermore, the case at the trial Court was fought largely on documents. This fact therefore, would make this Court answer issue one which is whether the learned trial judge still have vivid impression of the facts and evidence led at the trial when he delivered the judgment long after the constitutional period had lapsed to be in the affirmative. Since the evidence is largely documentary, the issue of impression of facts and evidence does not carry any steam. Moreover, the relief of the appellant in this appeal is not for nullification of the proceedings of the trial Court but:
1. Allowing the appeal with substantial costs;
2. Setting aside the judgment of the lower Court; and
3. Granting the reliefs sought by the appellant in its counter-claim and entering judgment in favour of the appellant in terms of its counter-claim.
From the foregoing therefore, I am of the firm view that the breach of Section 294(1) of the Constitution cannot in the circumstances of this case lead to the nullification of the decision of the trial Court. The decision of the trial Court shall therefore be reviewed on its merit in this appeal.
Issues Two and Three:
These issues are – whether the trial Court was right when it held that the Respondent did not breach a term of the contract imposing an obligation on the Respondent to provide working capital; and
Whether the trial Court was right when it held that the Appellant breached a term of the contract when the Appellant provided the foreign currency and procured the machines two and half years into the contract?
Learned counsel for the appellant argued that parties to a contract are bound by the terms of such contract. And that a party is said to have breached a contract where that party fails to perform its obligation under the contract or where the party performs its obligation but not in accordance to the dictates of the contract. Counsel relied on the cases of Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 386, Pan Bisbilder (Nig.) Ltd v. First Bank of Nigeria Ltd (2001) 1 SC, Pg. 71 AT 86-87, UBN Ltd & Anor. v. Benjamin Nwaokolo (1995) LPELR-3385 (SC), Larime v. D. P. M. S. Ltd (2005) 18 NWLR (Pt. 958) page 438 AT page 459, para E, Nika Fishing Co. Ltd v. Lavina Corporation (2008) 16 NWLR Pt. 1114, pg. 509 AT 543, paras. A-D, Afrotec Technical Services (Nig.) v. Mia & Sons Ltd & Anor (2000) 15 NWLR, Pt. 692, pg. 730 AT 788, paras. D-E, Aminuishola Investment Limited v. Afribank Nigeria Plc (2013) 9 NWLR Pt. 1359, Pg. 380 AT 408 Para G, Egharevba v. Osagie (2009) 18 NWLR, Pt. 1173, Pg. 299 AT 310, Paras. D-E, Womiloju v. Kiki (2009) 16 NWLR Pt. 1166, Pg. 143 AT 153 Paras. F-H.
Learned counsel further submitted that where a contract is silent as to time of performance as in this case, it is implied that the obligation should be performed within reasonable time. Counsel relied on the cases of N.B.C.I. v. Integrated Gas (Nig.) Ltd (2005) 4 NWLR (Pt. 916) 617 AT 649-650, Edem v. Canon Balls Ltd & Anor., (2005) LPELR-1007 (SC), Niger Insurance Company Ltd v. Abed Brothers Ltd & Anor. (1976) LPELR-1995 (SC).
In respect of these issues two and three, it is worthy of note that parties to any contract are bound by the terms of their contract. The terms of the contract of the parties were agreed by them to govern their transaction. By the doctrine of sanctity of contract, each of the parties are required to stick to the terms and carry out their duties under the contract. See the cases of ABC (Transport Company) Ltd v. Miss Bunmi Omotoye (2019) LPELR – 47829 (SC), Idufueko v. Pfizer Products Ltd & Anor (2014) LPELR – 22999 (SC), AIB Ltd v. Integrated Dimensional System Ltd & Ors (2012) LPELR-9710 (SC), A.G.River State v. A.G. Akwa Ibom State & Anor., (2011) LPELR-633 (SC).
In the instant case, Exhibit E – the Deed of Legal Mortgage as well as Exhibit M, the loan agreement required that the respondent should source for working capital. The trial Court found that there was an undertaking for the respondent to obtain from other sources working capital to be used for the project. This was not complied with by the respondent. The respondent did not place any evidence to indicate that she complied with that condition. The trial Court was then wrong to try to swerve the duty of providing working capital on the appellant instead of the respondent. The trial Court was therefore, wrong when it held that the respondent did not breach a term of the contract relating to provision of working capital. The issue is therefore, resolved in favour of the appellant.
Furthermore, the issue of timing was raised in this appeal. There is no timing attached to the execution of any part of the agreement of the parties. The Court cannot and must never be a ready tool in the hands of the parties in writing terms of agreement for the parties. This is because the duty of agreeing and putting down terms is for the parties and not the Court. Since the parties did not make time to be of essence in the performance of their respective duties, it will completely be out of place and a brazen act of error for the Court to activate time to follow the agreement of the parties. It follows therefore, that where the business of the parties did not set a time for their performance except that it is expected that the obligations set shall be carried out within reasonable time. See NBCI v. Integrated Gas (Nig.) Ltd & Anor (2005) LPELR – 2016(SC), Edem v. Canon Balls Ltd & Anor (2005) LPELR – 1007 (SC), cited by the appellant in his brief.
It follows therefore that these issues are also resolved in favour of the appellant.
Issue Four:
This issue is – whether in the circumstance of this case, the trial Court was right when it entered judgment in favor of Respondent, granting reliefs (i), (ii) and (iii) claimed by the Respondent?
Learned counsel for the appellant submitted that an order of specific performance is an equitable remedy which requires of a party the performance of a contract in a specific term in which it was made. Counsel cited Ibekwe v. Nwosu (2011) LPELR- 1391 (SC), Universal Vulcanizing (Nigeria) Ltd v. Ijesha United Trading & Transport & Ors (1992) LPELR-3415 (SC).
Learned counsel for the appellant further submitted that an order of specific performance, being an equitable remedy and being a matter for the discretion of the Court is not granted as a matter of course. The party seeking it must show that he is entitled to be granted same and that the Court in the exercise of its discretion to refuse or decree specific performance must do so judicially and judiciously so that a party who is in breach of the contract or who has failed to fulfil its own part of the obligation under a contract cannot be granted an order of specific performance. Counsel relied on the cases of U. I. C Ltd v. T. A. Hammond (Nig.) Ltd (1998) 9 NWLR (Pt 565) Page 340 AT page 356 Para H, Balogun v. Alli-Owe (2000) 3 NWLR (Pt. 649) Pg. 477 AT Pg. 482, para. E, Ali v. Hussaini & Ors (2002) LPELR-12267 (CA), L.S.D.P.C v. N.L.& S.F. Ltd (1992) 5 NWLR (Pt. 244) Pg. 653 AT Pg. 671 Para B, Oyefolu v. Sadiq & Ors (2008) LPELR-4816 (CA), Network Security Ltd v. Dahiru (2008) All FWLR (Pt. 419) 475 AT 479, P. 498 Paras. C- D (CA), Ladoja v. INEC (2007) All FWLR (Pt. 377) 934 AT 922, Paras. C-D, Olagbeni v. Oyewusi & Ors (2013) LPELR-20363 (CA), Leasing Co. (Nig) Ltd v. Tiger Ind. Ltd (2007) 14 NWLR (Pt. 1054) 14 NWLR (Pt. 1054) 346 AT 380-381, Paras. H-C.
The contract between the parties was for loan. The appellant from the record before us did disburse the loan but the respondent never showed that she repaid the loan disbursed. I cannot see under what imagination the trial Court can now go and grant an injunction and other orders to sabotage the appellant from recovering her funds. The orders given were without any foundation nor proven by credible evidence, so they were perverse. The orders granted cannot stay in the circumstances of the instant case.
Issue Five:
This issue is – whether the trial Court was right when it held that the Appellant failed to prove its counter-claim and dismissed same?
Learned counsel for the appellant while arguing this issue submitted that it is settled that facts which are not denied are deemed admitted and admitted facts need no further proof. Counsel relied on the cases of Efet v. INEC & Ors (2011) LPELR-8109 (SC), Okereke v. State (2016) LPELR-26059 (SC), Geneva v. Afribank Nigeria Plc (2013) LPELR-20662 (SC), Larmie v. D. P. M. S. Ltd (2005) 18 NWLR (Pt. 958) 438 AT 463 (SC).
Learned counsel for the appellant argued that a counterclaim being a distinct action, the trial judge had a duty to evaluate the evidence produced at the trial in relation to the counter-claim. There is no way the appellant’s counter-claim would have been properly and satisfactorily resolved without an evaluation of the evidence led in support, which with due respect, the trial Court failed to do. Counsel relied on the cases of Gabriel v. State (2010) 6 NWLR (Pt. 1190) P. 280 AT P. 332 Paras. C-D, Pip Ltd v. Trade Bank (Nig.) Plc (2009) 13 NWLR (Pt. 1159) P. 577 AT P. 637 Para C. Counsel urged this Court to allow the appeal, set aside the judgment of the lower Court and also proceed to enter judgment in favour of the appellant in respect of the counter-claim.
Under this issue, it is very clear that evidence abound that the appellant did prove its counter-claim as required. The only plausible thing to do was for the trial Court to grant the counter-claim. The trial Court was therefore, in error for not granting the counter-claim. This issue is resolved in favour of the appellant.
From the foregoing therefore, I hold conclusively that this appeal has merit. The appeal is allowed. The judgment of the trial Court delivered on 19th October 2004, is hereby set aside.
We act under Section 15 of the Court of Appeal Act to grant the counter-claim of the appellant. The counter-claim succeed and it is fully granted. I therefore order as follows:
a. That the respondent shall pay the appellant a sum of N13,527,269.30, representing the principal loan plus interest.
b. A post-judgment interest at the rate of 15% per annum until the whole amount is paid.
Parties are to bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My Lords, I have been privileged to read in advance a draft copy of the leading judgment just delivered by my noble lord, Stephen Jonah Adah, JCA. I am completely satisfied with the reasoning and conclusion reached therein, and it, haven covered the field, I have nothing more to add.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother, Adah, JCA. I am in agreement with the reasonings expressed therein and the conclusion thereby reached.
I adopt those reasoning as mine by which I too set aside the judgment of the lower Court and in its stead enter judgment for the Appellant in terms of the twin orders made in the lead judgment.
Appearances:
Patrick Okoh, Esq For Appellant(s)
…For Respondent(s)
