SAULA OGUNDIMU & ANOR. v. SULE OGUNSEYE & ANOR.
(2011)LCN/4649(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of June, 2011
CA/I/176/2000
RATIO
RULES OF INTERPRETATION: PROCEDURE TO BE FOLLOWED IN CONSTRUCTING THE WORDS OF A STATUTE OR INSTRUMENT
The law is that in constructing a statute or instrument, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See: Oyeyemi vs. Commissioner for Local Government Kwara State (1992) 2 SCNJ 266 at 280; Artra Ind. Nig. Ltd. vs. NBCI (1998) 3 SCNJ 97 at 115; Bakare vs. NRC (2007) 17 NWLR (Pt. 1064) 606 at 639 paragraphs C-D page 640 paragraph G, 641 paragraph G-H; Odutola Holdings Ltd vs Ladejobi (2006) 12 NWLR (PT. 994) 321 at 358 paragraphs C-D Unipetrol vs E.S.B.I.R (2006) 8 NWLR (Pt. 983) 624 at 641 paragraphs F-H; Rivers State Government vs. Specialist Konsolt (2005) 7 NWLR (pt 923) 145 at 179 paragraphs E-F. PER SIDI DAUDA BAGE, J.C.A.
INTERPRETATION OF STATUTE: COMBINED EFFECT OF THE PROVISIONS OF SECTION 249 (1) AND (5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) AS TO WHETHER A JUDGMENT WILL BE SET ASIDE OR TREATED AS A NULLITY SOLELY ON THE GROUND OF BEING DELIVERED OUTSIDE THE STATUTORY PERIOD
From the provisions of the Constitution read together, such delayed judgment delivered after the period given by the law can only be made a nullity by this court or a further appellate court, where in evidence before it, to its satisfaction, that as a result of such delay, a miscarriage of justice had occasioned. PER SIDI DAUDA BAGE, J.C.A.
MISCARRIAGE OF JUSTICE: WHAT MISCARRIAGE OF JUSTICE ENTAILS
A miscarriage of justice is simply justice miscarried. Miscarriage of justice is failure of justice. It is the failure on the part of the court to do justice. It is justice misapplied, misappreciated, misappropriated. It is an ill conduct on the part of the court which amounts to injustice. Miscarriage of justice arises in a Decision or outcome of legal proceeding that is prejudicial or in consistent with the substantial Right of a party. See: Pam & anor vs. Mohmmed & anor (2008) 5-6 SC (Pt. 1) 83; Owoyemi vs. Adekoya (2003) 12 SCM 277; Ogunleke vs. Oyelakin (2003) 27 WRN 127; Ishaya bamaiyi vs. The State (2001) FWLR (Pt. 44) 954; Habib Nig. Bank Ltd. Vs. Nwolu (2001) FWLR (Pt. 54) 384; Uka vs. Irolo (2002) 12 MJSC 47; Adana vs. Onoja (2003) 51 WRN 92; Oto vs. Adojo (2o04) All FWLR (pt 203) 2151. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
SAULA OGUNDIMU & ANOR. Appellant(s)
AND
SULE OGUNSEYE & ANOR. Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of High Court of Justice Ogun State, Sagamu Judicial Division, in /suit No. HCT/39/93 delivered on the 2nd of November 1998 (coram ogunlesi-Adio).
At the time when the plaintiffs who are the Respondents in this Appeal, instituted this action against the Defendants, the Appellants here in, at the Ogun State High Court of Justice, in the Otta Judicial Division by a writ of summons dated the 12th day of January 1993 (page 2 of the record), the final amended writ of summons claimed the following reliefs: –
(i) Declaration that the plaintiffs are entitled to a Statutory Right of Occupancy over a piece of land situate lying and being at Odubale village Ogun State and which is more particularly delineated on Plan No. TAA/OG/309/93 drawn by Awofodu Registered surveyor.
(ii) N100,000:00 damages for trespass committed by the Defendants when they entered the plaintiffs land situate, lying and being at odubale village, via Alagbdo Railway Station Ogun State and destroyed the cash and food crops planted thereon.
(iii) Injunction restraining the Defendants whether by themselves, their servant agents or privies from committing further acts of trespass?
Parties exchanged pleadings and various interlocutory applications were made in the course of the proceedings. The first statement of claim was dated 8th March, 1994, it was concluded in paragraph 27 thus: –
“WHEREOF the plaintiffs claim as per their writ of summons.”
Briefly put, the facts of this case as could be gathered from the pleadings by the parties and the reliefs sought are hearing commenced on 12th November, 1996 when two witnesses were called, and continued on the 13th November, 1996 with the third witness and further hearing continued on 5th February, 1997. On the 6th February 1997 the plaintiffs called their fourth witness and closed their case. Defence was adjourned to 17th, 22nd and 23rd of April 1997. At page 31 of the record, the learned counsel for the defendants opened their case. The heading of the record bears no date of the trial but at the end of page 34 of the records, the learned trial signed the record of proceedings and dated it 8/7/97. In other words, the matter never came up for hearing on 17, 22 and 23 April, 1997 as stipulated at page 30 of the record. There is no record of what transpired on those days. On the 8th July 1997, after the completion of the day’s proceedings, the learned trial judge fixed further hearing for 15th July, 1997 (page 34) there is no record of what transpired on the 15th July, 1997 but the matter came up before the judge on 27th February, 1998 at page 55 of the record of proceedings when a new counsel chief V.A. Odunaiya came into the case for the defence, before the trial judge at Ijebu-ode High Court. At the end of hearing the learned trial judge adjourned further hearing and address to 6th, 13th, March and 24th April, 1998. On the 6/3/98 DW4 continued with his testimony, DW6 & DW7 testified on the 13/3/98. On the 20/3/98 DW7 concluded his testimony. On that day the learned trial judge adjourned the address of counsel to 24/4/98. This was a case instituted at Otta Judicial Division. On 26/5/98 the date to which counsel address was further adjourned, counsel for the plaintiff moved a motion to amend the statement of claim. Learned counsel for the defendants in a 17 paragraphs Counter Affidavit opposed the application, because he has already addressed the court on the issue. The trial judge granted the plaintiffs’ application for leave to amend by introducing a new paragraph 7(a). Learned counsel to the Defendant continued with his address from 22/7/98-30/7/98 learned counsel to plaintiffs started and concluded his address, the learned trial judge allowed him to move a motion to further amend the Amended statement of claim by altering the number of the plan already put in evidence and adding a new paragraph 28 to set out plaintiffs’ claims in the amended statement of claim as set out in the amended writ of summons. The court granted the application and ordered that the Amended statement of claim be filed and served within 7 days from today (i.e. 3/7/98). The case was adjourned for judgment on the 20/10/98. No order was made that the Defendants should file an Amended statement of Defence in answer to the plaintiffs, amended statement of claim. There is no record that the plaintiffs filed the amended statement of claim as ordered or that it was served on the Defendants. The learned trial judge appreciated that the trial took an unusual course because at page 140 of the record, after setting out the catalogue of events she showed the chequered journey of this case almost 6 years old suit. The trial judge relied on Exhibit ‘D’ the finding of an independent public body when the maker of that report was not called to testify.
The Appellant filed a motion on Notice pursuant to Order 6 Rule 10 of the Court of Appeal Rules and under the inherent jurisdiction of the Court.
The Appellant had prayed: –
(1) A order setting down this Appeal for hearing on the Appellant/Applicants Brief of Argument before the court; and
(2) For such further order or other orders as this Honourable court may deem fit to make in the circumstances of the case.
The motion dated the 19th of February, 2010 was filed on the 22/2/10. The motion was moved and granted by this court on the 19th May, 2010.
The Appellant filed his Notice of Appeal dated the 5th of November, 1998, from the said Notice of Appeal; the following issues are distilled by the Appellant for the determination of the court.
(1) Whether the learned trial Judge was right in taking away the case file from the judicial Division where the land is situate to other Judicial Division for hearing and determination contrary to the rules and without obtaining an order of the state chief judge in that regard? (Ground 6)
(2) Whether the lapse of time between the reception of evidence and the delivery of Judgment did not affect the judgment of the learned trial Judge and thereby occasioning a miscarriage of justice (Ground 7)
(3) Whether the various amendments granted to the Respondents to file amended statement of claim after the issues have been raised by the Appellants counsel in his address did not occasion a miscarriage of Justice and prejudicial to the Appellants (Ground 5)
(4) Whether the learned trial Judge was right in awarding the plaintiffs reliefs based on pleadings which was not filed, marked and served in accordance with the Rules of the Honourable court (Ground 8)
(5) Whether the damages of N100,000:00 and cost of N25,000:00 awarded to the Respondent was not excessive and prejudicial to the Appellants and therefore amounted to a miscarriage of justice (Grounds 2 & 3)
(6) Whether having regards to the pleadings facts and evidence, the learned trial Judge was right in granting the reliefs claimed by the Respondents when such reliefs were based on contradictory traditional evidence and/or on facts not pleaded or proved by evidence at the trial. (Ground 4)
(7) Whether or nor the learned trial judge was right in dismissing the Defendant’s counter-claim having regards to the facts and evidence adduced by the Defendants in this case (Ground 9).
The learned counsel to the Appellant argued issues 1 & 2 together and submitted that the trial of this case commenced on 12/11/96 at Otta Judicial Division when plaintiffs opened and closed evidence. The defence opened evidence on 8/7/97 at Otta Judicial Division called their DW1, but he was yet to conclude his evidence when the learned trial judge was transferred to Ijebu-Ode Judicial Division as DW1, DW2, DW3 gave evidence, the defence closed their case on 20/3/98 at DW7 had testified. The counsel addresses the court and the Judgment which was reserved to 20/10/98 was finally delivered on 2/11/98, more than ninety days after the conclusion of evidence and final addresses by counsel for the parties.
Learned counsel submitted further that by section 294 (1) of the 1999 constitution, every court established under the constitution shall deliver its decision in writing not later than 90 days after conclusion of evidence and final addresses. There is however an exception provided for under section 294 (5) of the 1999 constitution. The judgment in this case was delivered four days outside the statutory period.
Learned counsel further submitted that in the present appeal under consideration the judgment of the learned trial judge delivered on 2/11/98 was outside the 3 months statutory period by 4 days, it is therefore a nullity and coupled with the change of venue of trial without written order of the chief judge occasioned a miscarriage of justice.
Learned counsel further submitted that the learned trial judge was again transferred from Ijebu-Ode to Sagamu Judicial Division about July 1998 and she carried the file with her to Sagamu without any order from the chief judge of ogun State, and also contrary to the clear provision of order 10 Rule (1) of the High Court (Civil Procedure) Rules of ogun State 1987.
It is very clear that the arguments proffered by the learned counsel to the Appellant, with respect to issues 1 and 2, presents two segments viz: –
(1) The judgment delivered by the trial court outside the statutory period of 3 months.
(2) The judgment of the trial court delivered in a Judicial Division other than where the land is situate, and also where the action was commenced, what effect therefore in law.
In considering the argument relating to the judgment in question delivered 4 days outside the statutory period, this issue is one strictly guided by the provision of the constitution of the Federal Republic of Nigeria 1999 (As Amended).
Section 249 (1) provides as follows: –
“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”
Section 294 (5) provides:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court 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.
In the present appeal the argument of the learned counsel to the Appellant is that the final address of counsel was concluded on the 30/7/98. The learned trial judge had reserved judgment to 20/10/98, but the judgment was not to be delivered until 2/11/98. From a simple arithmetic from the 30/7/98 to 2/11/98, it was a period of ninety four (94) days. The constitution provided the period for the delivery of the judgment not later than 90 days. The learned counsel further argued by the judgment coming 4 days outside the 90 days stipulated by the constitution, the judgment being appealed against constitutes a nullity. It is very clear that the learned counsel although cited himself in his submissions the provision of section 294 (5) of the 1999 constitution, which provided such a decision of the 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) (which provided for the ninety (90) days) 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. This of course will depend on the argument proffered before the latter court. The law is that in constructing a statute or instrument, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See: Oyeyemi vs. Commissioner for Local Government Kwara State (1992) 2 SCNJ 266 at 280; Artra Ind. Nig. Ltd. vs. NBCI (1998) 3 SCNJ 97 at 115; Bakare vs. NRC (2007) 17 NWLR (Pt. 1064) 606 at 639 paragraphs C-D page 640 paragraph G, 641 paragraph G-H; Odutola Holdings Ltd vs Ladejobi (2006) 12 NWLR (PT. 994) 321 at 358 paragraphs C-D Unipetrol vs E.S.B.I.R (2006) 8 NWLR (Pt. 983) 624 at 641 paragraphs F-H; Rivers State Government vs. Specialist Konsolt (2005) 7 NWLR (pt 923) 145 at 179 paragraphs E-F.
From the provisions of the Constitution read together, such delayed judgment delivered after the period given by the law can only be made a nullity by this court or a further appellate court, where in evidence before it, to its satisfaction, that as a result of such delay, a miscarriage of justice had occasioned. No such evidence is before this court. This issue of the trial court not complying with the provisions of Order 10 Rule (1) of the High (Civil Procedure) Rules of Ogun State bears no relationship with the delay in delivering the judgment. It is in itself another area for a consideration in this appeal. Again the requirement of the law with regards to such judgments delivered outside the period allowed is to ascertain whether the delay has occasioned a miscarriage of justice. A miscarriage of justice is simply justice miscarried. Miscarriage of justice is failure of justice. It is the failure on the part of the court to do justice. It is justice misapplied, misappreciated, misappropriated. It is an ill conduct on the part of the court which amounts to injustice. Miscarriage of justice arises in a Decision or outcome of legal proceeding that is prejudicial or in consistent with the substantial Right of a party. See: Pam & anor vs. Mohmmed & anor (2008) 5-6 SC (Pt. 1) 83; Owoyemi vs. Adekoya (2003) 12 SCM 277; Ogunleke vs. Oyelakin (2003) 27 WRN 127; Ishaya bamaiyi vs. The State (2001) FWLR (Pt. 44) 954; Habib Nig. Bank Ltd. Vs. Nwolu (2001) FWLR (Pt. 54) 384; Uka vs. Irolo (2002) 12 MJSC 47; Adana vs. Onoja (2003) 51 WRN 92; Oto vs. Adojo (2o04) All FWLR (pt 203) 2151.
The Appellant counsel had argued strenuously that the action instituted at Otta Judicial Division, the trial when on transfer to Ijebu-Ode Judicial Division took the file along with the leave of the Hon. Chief Judge of the State, and repeated the same feat when on transfer again to Sagamu Judicial Division with respect to the counsel to appellant, creation of Judicial Division within the State is strictly an administrative matter within of the authority of the State, but the movement of the trial judge from the record before this court, had nothing, no bearing with the content of the judgment or its outcome, on this point therefore no miscarriage of justice had occasioned.
Turning now to the second segment of issues No. 1 & 2, dealing with the judgment of the trial-court, delivered in a Judicial Division other than where the land is situate and also where the action was instituted, what effect therefore in law.
The learned counsel to the Appellant had argued that this action was instituted at Otta Judicial Division where the piece of land in dispute is situated. The trial judge was later transferred to the Ijebu-ode Judicial Division, and she took the file along with her continued the proceedings thereon. She did so without having obtained the leave of the Chief Judge of the authorizing the movement with the file which was part heard. Again the same judge was transferred from Ijebu-Ode Judicial Division to Sagamu Judicial Division, she again took along the part heard case filed and concluded at Sagamu where the judgment was delivered without such leave of the Hon. Chief Judge of the State. The learned counsel to the Appellant continued that in any event even if such leave or order was sought and obtained from the Chief Judge of the State, such an Order would be illegal, the learned counsel to the Appellant sought refuge on the clear provision of Order 19 Rule (i) of the High Court (Civil procedure) Rules of Ogun State 1987; where in it provides.
“All Suits relating to land or any mortgage or charge thereon, or any other interest therein shall be commenced and determined in the Judicial Division in which the land is situate—”
Learned counsel submitted further that the word “shall” in the above rule is “mandatory” and not directory “because of the mischiefs aimed at by the Rule. It is in the interest of the public that cost of litigation must be within the reach of the ordinary people.
This appeal is determined on the Appellants brief alone, based on the order of this court granted as such on the 19/5/2010. So far the only law before this court which deal with the venue for the trial of any suit relating to land or any mortgage or charge there on or any other interest therein, in Ogun state Nigeria, is order 10 R (i) of High court (Civil Procedure) Rules of Ogun State 1987 cited above. The wording of this statute is very clear and unambiguous. It is trite that where the provisions of a statute are unambiguous, the expressions of words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include any extraneous provisions not stated therein. See: Tasha vs. UBN PLC (2002) 3 NWLR (PT. 753) 99; Araka vs. Egbue (2003) 17 NWLR (PT. 848) 1 at 21 paragraphs B-D; A.G. Federal vs. Guardian Newspaper (1999) 9 NWLR (Pt. 618) 187 at 264 paragraph F-g; Oviwe vs I.R.P. (Nig.) Ltd. (1997) 3 NWLR (Pt. 492) 126 at 139 paragraphs E-F.
The chequered history of the case at hand showed that the action was instituted at Otta Judicial Division of Ogun State, where the land in dispute at Odubale village via Alagbado Railway station is situate and lying. The hearing of the suit commenced on 12th November, 1996 in Otta. The learned trial judge was subsequently transferred to the Ijebu-Ode Judicial division where she carried the case file along and commenced hearing on same 27/2/98. The proceedings in the suit continued at Ijebu-Ode, when the learned trial judge was again transferred to the Sagamu Judicial Division, she took the along, and finally delivered judgment in the suit on the 2nd of November, 1998. The wording of Order 10 R (i) of the High Court (Civil Procedure) Rules, Ogun State is already stated is quite clear, all suits relating to land or any interest there on shall be commenced and determined in the judicial Division in which the land is situate. From the time of the transfer of the learned trial judge from Otta Judicial division to Ijebu-Ode, by the operation of the law cited above, she was seized of jurisdiction to transfer, hear, act, or determine this suit at Ijebu-Ode. All proceedings therefore in respect of this suit, that took place at Ijebu-Ode had no effect in law whatsoever and therefore invalid in law. The matter went further than that when the trial judge was again transferred to the Sagamu Judicial division. Proceedings in this suit continued which culminated into the judgment being appealed against. Again by the operation of law cited earlier on, Sagamu Division was not the point where the suit was commenced; therefore by law it cannot be the point where the suit can be determined. The provision of Order 10 Rule (i) of the High Court (Civil Procedure) Rules of Ogun State 1987, the word “shall” is used be “Commenced” and “determined” in the judicial Division in which the land is situated. The words “Commencement” and determination must be read conjunctively and not disjunctively. The word ‘shall’ connotes mandate, and it must be obeyed, the Division in which the land is situate. The land clearly, from the record before this court is situated at the Otta Judicial Division, and not in the Sagamu Judicial Division. Therefore by the operation of the law, all the proceedings and the final judgment delivered in this suit by the trial judge in sagamu go to no issue. It has no effect what so ever in law. This court therefore is in no difficulty in setting aside all those proceedings of the court in Sagamu including the final judgment delivered by court in this suit on the 2/11/98.
Having set aside the judgment of the trial court delivered on the 2/11/98, issues No. 3, 4, 5, 6 and 7 of the Appellants brief of argument become merely academic, which the courts are refrained from embarking upon.
Finally therefore, this appeal succeeds, and it is hereby allowed. The judgment of Ogunlesi Adio J. in suit No. HCT/39/193, delivered at the Sagamu Judicial Division of Ogun State, on the 2nd of November, 1988 in this suit, is hereby set aside by this court.
2. This court makes an order remitting the case back to the Hon. Chief Judge of Ogun State, to reassign the suit for a fresh trial before any serving judge at the Otta Judicial Division of Ogun State where the land in dispute is situated.
I make no order on costs.
STANLEY SHENKO ALAGOA, J.C.A.: I have read before now the judgment just delivered by my learned brother S. D. Bage, J.C.A.
I agree with his reasoning and the conclusion arrived at that the appeal is allowed and the judgment of the lower court is set aside. I allow same and set aside the judgment of the lower court. I abide by all the consequential orders made therein including the order on costs.
MODUPE FASANMI, J.C.A.: I read in advance the lead judgment of my learned brother S. D. BAGE J.C.A. just delivered.
I agree with the reasoning and conclusions in the appeal and I adopt same as mine. I also abide with the consequential orders contained therein.
Appearances
CHIEF (DR.) V. A. ODUNAIYAFor Appellant
AND
RESPONDENT ABSENTFor Respondent
