There have been several reactions following the Court of
Appeal’s recent decision on Wednesday, July 12, 2017 in the case of
MORENIKE IDOWU & ORS v. SEGUN KOYA INVESTMENTS LTD
(2017) LPELR-43580(CA) essentially pronouncing on the
validity of a judgement delivered outside the mandatory 90days
period.
Section 294 (1) of the Constitution of the Federal Republic of
Nigeria 1999 (as amended) mandates superior Courts to deliver
their judgements in writing not later than ninety (90) days after
the conclusion of evidence and final addresses. It provides
“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”.
Most Courts of record fail to comply with this mandatory
constitutional requirement, and the practice has been for the Court
to order parties to re-adopt their final addresses in order to keep
to the time within which judgement is to be delivered. This
practice has however been condemned in several cases by Appellate
Courts. In OLUBUKOLA & ANOR v. A.G OF LAGOS STATE &
ORS(2016) LPELR-41451(CA) for example, NIMPAR, J.C.A who
also, interestingly, delivered this instant appeal held
emphatically that “…there is no provision
in the rules of Court that allows re-adoption of written addresses
for counsel, see OKON v. ITA (2010) LPELR – 9010 (CA). The Court
can recall parties or counsel to address it on a new or moot point
not covered by the written addresses which of course would require
additional submissions to the previously adopted addresses but not
re – adoption.”
The subject of this instant case, at trial, was on a breach of
agreement to assign a piece of property. After hearing the case,
the parties adopted their written addresses in the first instance
on September 30, 2009, and the trial Court delivered its judgment
on the June 4, 2010, right after parties were asked to merely
re-adopt their final addresses (almost 9 months after). The trial
Court granted in part, the claims of the Respondent who was the
Claimant and dismissed the counterclaim of the Defendants (now
Appellants). Dissatisfied with the said decision, the Appellants
filed the Appeal.
NIMPAR, J.C.A. again, whilst delivering the judgement, condemned
the practice of re-adopting final addresses with a view to
abridging the 90days mandatory requirement viz-a-viz the provisions
of Section 294(1) of the Constitution. The Court held that
“[t]he order of the lower Court for the parties to re-adopt
their addresses seems to have been directed at avoiding the
consequences of non-compliance with the stipulations of Section
294(1) of the Constitution”. She went further to hold that
the re-adoption of addresses “does not have the consequence
of re-opening the computation of the period within which judgment
is to be delivered.” Explaining the rationale for this
position, the Honourable Justice held “… re-adoption
simpliciter without addition of any fresh points of law on which
the Court needs clarification is a facade and would not serve to
have the computation of time for delivery of judgment to start
afresh from the date of the re-adoption.”
NIMPAR, J.C.A. advised that “Trial Courts should embrace
case management regime in handling cases and stop hiding behind
Section 294(5) to deliver judgments after 90 days. With the new
dispensation of training of judges on case management skills by the
National Judicial Institute, judges should avoid the practice of
recalling parties to readopt.”
It is also important to point out that Section 294(5) of the
Constitution provides that “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.”
From the provisions of sub-section 5, it is clear that the
provisions of sub-section 1 is qualified and non compliance thereof
should not nullify the judgment of a trial court if delivered
outside 90days except there is proof that a complaining party
(usually the Appellant) has suffered a miscarriage of justice from
the non-delivery of the judgement within 90days. The Supreme Court
had restated this in AKOMA & ANOR v. OSENWOKWU &
ORS (2014) LPELR-22885(SC) when it held that “… a Court is
mandated to deliver its judgment within 90 days after final
addresses. This applies to both trial and Appellate Courts. There
is no doubt that the delay in the delivery of the judgment by the
Court below was inordinate and offends against Section 294 (1) of
the 1999 Constitution of the Federal Republic of Nigeria.
Ordinarily, that will render such a judgment a nullity. See IFEZUE
V. MBADUGHA (1984) 1 SCNLR 427. However, by Section 294 (5) of the
said Constitution, delay alone will not lead to setting aside the
judgment unless there is evidence of miscarriage of justice.”
Also, in DENNIS AKOMA & ANOR v. OBI OSENWOKWU &
ORS (2014) LPELR-22885 the Court held, “The
question is what is the consequence(s) of the failure of the lower
Court, in the circumstances of this case, to deliver its decision
within ninety days of the final addresses of counsel? The answer is
that the judgment/decision/order so delivered is valid except an
appellant can satisfy the Court that the non-delivery of the
judgment within the stipulated time has occasioned a miscarriage of
justice to him.” See also OWOYEMI v. ADEKOYA (2003) 18 NWLR (Pt.
852) 307. Is there sufficient proof that the Appellants in
IDOWU & ORS v. SEGUN KOYA INVESTMENTS LTD (2017)
LPELR-43580(CA) have suffered any miscarriage of justice
for the noble Honourable Justice to order that the matter be heard
afresh by another Judge?
In ELIAS v. FRN & ANOR (2016)
LPELR-40797(CA) the Court opined that “The spirit
behind the ninety-day period in Section 294(1) of the Constitution
(supra) is to ensure that the decision of the Court is written and
delivered when the facts of the case, the inference from the facts
and the impression created by the witnesses are still fresh in the
mind of the Judge.” It was therefore in the wisdom of the
framers of our Constitution that a good evaluation may not be
possible after 90 days because the judge may have forgotten or lost
some impression he perceived during the hearing – after all, the
judge is human. However, where the evidence relied on in a case is
basically documentary, the facts and evidences adduced in a case is
not affected and an evaluation can still be carried out. This is
because, time lapse may not have a detrimental effect on the mind
of the judge and an argument on miscarriage of justice may then be
difficult to establish. See DENNIS AKOMA v. OBI OSENWOKWU
& ORS (supra).
In the instant case of MORENIKE IDOWU & ORS v. SEGUN
KOYA INVESTMENTS LTD, the Honourable Justice NIMPAR, JCA
noted in reaching her decision, that there were several distortions
of evidence occasioned by a loss of perception, appreciation and
evaluation of the evidence adduced at the trial court as there were
errors and discrepancies in the judgement delivered by the trial
judge and the findings of the trial Court did not align with the
evidence as adduced during trial. It was based on this reasoning
that the Honourable Court per Nimpar J.C.A opined that a
miscarriage of justice had arisen as the Court determined the claim
on the wrong pleadings and the distortion of evidence could
obviously read to the wrong conclusion.
From the evaluation of the judgement of the Court of Appeal, it
is clear that the Court of Appeal has rehashed the provisions of
section 294(1) and (5) of the Constitution of the Federal Republic
of Nigeria 1999 (as amended). This pronouncement of the Court
should not therefore be treated with levity as it brings to the
fore, the need for Courts – especially trial Courts, to imbibe the
discipline of carrying out their judicial functions in line with
the spirit and intent of the Constitution they have sworn to
uphold.
Adeola Adeniyi is a Senior Associate at Kenna
Partners. Email: aadeniyi@kennapartners.com
There have been several reactions following the Court of
Appeal’s recent decision on Wednesday, July 12, 2017 in the case of
MORENIKE IDOWU & ORS v. SEGUN KOYA INVESTMENTS LTD
(2017) LPELR-43580(CA) essentially pronouncing on the
validity of a judgement delivered outside the mandatory 90days
period.
Section 294 (1) of the Constitution of the Federal Republic of
Nigeria 1999 (as amended) mandates superior Courts to deliver
their judgements in writing not later than ninety (90) days after
the conclusion of evidence and final addresses. It provides
“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”.
Most Courts of record fail to comply with this mandatory
constitutional requirement, and the practice has been for the Court
to order parties to re-adopt their final addresses in order to keep
to the time within which judgement is to be delivered. This
practice has however been condemned in several cases by Appellate
Courts. In OLUBUKOLA & ANOR v. A.G OF LAGOS STATE &
ORS(2016) LPELR-41451(CA) for example, NIMPAR, J.C.A who
also, interestingly, delivered this instant appeal held
emphatically that “…there is no provision
in the rules of Court that allows re-adoption of written addresses
for counsel, see OKON v. ITA (2010) LPELR – 9010 (CA). The Court
can recall parties or counsel to address it on a new or moot point
not covered by the written addresses which of course would require
additional submissions to the previously adopted addresses but not
re – adoption.”
The subject of this instant case, at trial, was on a breach of
agreement to assign a piece of property. After hearing the case,
the parties adopted their written addresses in the first instance
on September 30, 2009, and the trial Court delivered its judgment
on the June 4, 2010, right after parties were asked to merely
re-adopt their final addresses (almost 9 months after). The trial
Court granted in part, the claims of the Respondent who was the
Claimant and dismissed the counterclaim of the Defendants (now
Appellants). Dissatisfied with the said decision, the Appellants
filed the Appeal.
NIMPAR, J.C.A. again, whilst delivering the judgement, condemned
the practice of re-adopting final addresses with a view to
abridging the 90days mandatory requirement viz-a-viz the provisions
of Section 294(1) of the Constitution. The Court held that
“[t]he order of the lower Court for the parties to re-adopt
their addresses seems to have been directed at avoiding the
consequences of non-compliance with the stipulations of Section
294(1) of the Constitution”. She went further to hold that
the re-adoption of addresses “does not have the consequence
of re-opening the computation of the period within which judgment
is to be delivered.” Explaining the rationale for this
position, the Honourable Justice held “… re-adoption
simpliciter without addition of any fresh points of law on which
the Court needs clarification is a facade and would not serve to
have the computation of time for delivery of judgment to start
afresh from the date of the re-adoption.”
NIMPAR, J.C.A. advised that “Trial Courts should embrace
case management regime in handling cases and stop hiding behind
Section 294(5) to deliver judgments after 90 days. With the new
dispensation of training of judges on case management skills by the
National Judicial Institute, judges should avoid the practice of
recalling parties to readopt.”
It is also important to point out that Section 294(5) of the
Constitution provides that “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.”
From the provisions of sub-section 5, it is clear that the
provisions of sub-section 1 is qualified and non compliance thereof
should not nullify the judgment of a trial court if delivered
outside 90days except there is proof that a complaining party
(usually the Appellant) has suffered a miscarriage of justice from
the non-delivery of the judgement within 90days. The Supreme Court
had restated this in AKOMA & ANOR v. OSENWOKWU &
ORS (2014) LPELR-22885(SC) when it held that “… a Court is
mandated to deliver its judgment within 90 days after final
addresses. This applies to both trial and Appellate Courts. There
is no doubt that the delay in the delivery of the judgment by the
Court below was inordinate and offends against Section 294 (1) of
the 1999 Constitution of the Federal Republic of Nigeria.
Ordinarily, that will render such a judgment a nullity. See IFEZUE
V. MBADUGHA (1984) 1 SCNLR 427. However, by Section 294 (5) of the
said Constitution, delay alone will not lead to setting aside the
judgment unless there is evidence of miscarriage of justice.”
Also, in DENNIS AKOMA & ANOR v. OBI OSENWOKWU &
ORS (2014) LPELR-22885 the Court held, “The
question is what is the consequence(s) of the failure of the lower
Court, in the circumstances of this case, to deliver its decision
within ninety days of the final addresses of counsel? The answer is
that the judgment/decision/order so delivered is valid except an
appellant can satisfy the Court that the non-delivery of the
judgment within the stipulated time has occasioned a miscarriage of
justice to him.” See also OWOYEMI v. ADEKOYA (2003) 18 NWLR (Pt.
852) 307. Is there sufficient proof that the Appellants in
IDOWU & ORS v. SEGUN KOYA INVESTMENTS LTD (2017)
LPELR-43580(CA) have suffered any miscarriage of justice
for the noble Honourable Justice to order that the matter be heard
afresh by another Judge?
In ELIAS v. FRN & ANOR (2016)
LPELR-40797(CA) the Court opined that “The spirit
behind the ninety-day period in Section 294(1) of the Constitution
(supra) is to ensure that the decision of the Court is written and
delivered when the facts of the case, the inference from the facts
and the impression created by the witnesses are still fresh in the
mind of the Judge.” It was therefore in the wisdom of the
framers of our Constitution that a good evaluation may not be
possible after 90 days because the judge may have forgotten or lost
some impression he perceived during the hearing – after all, the
judge is human. However, where the evidence relied on in a case is
basically documentary, the facts and evidences adduced in a case is
not affected and an evaluation can still be carried out. This is
because, time lapse may not have a detrimental effect on the mind
of the judge and an argument on miscarriage of justice may then be
difficult to establish. See DENNIS AKOMA v. OBI OSENWOKWU
& ORS (supra).
In the instant case of MORENIKE IDOWU & ORS v. SEGUN
KOYA INVESTMENTS LTD, the Honourable Justice NIMPAR, JCA
noted in reaching her decision, that there were several distortions
of evidence occasioned by a loss of perception, appreciation and
evaluation of the evidence adduced at the trial court as there were
errors and discrepancies in the judgement delivered by the trial
judge and the findings of the trial Court did not align with the
evidence as adduced during trial. It was based on this reasoning
that the Honourable Court per Nimpar J.C.A opined that a
miscarriage of justice had arisen as the Court determined the claim
on the wrong pleadings and the distortion of evidence could
obviously read to the wrong conclusion.
From the evaluation of the judgement of the Court of Appeal, it
is clear that the Court of Appeal has rehashed the provisions of
section 294(1) and (5) of the Constitution of the Federal Republic
of Nigeria 1999 (as amended). This pronouncement of the Court
should not therefore be treated with levity as it brings to the
fore, the need for Courts – especially trial Courts, to imbibe the
discipline of carrying out their judicial functions in line with
the spirit and intent of the Constitution they have sworn to
uphold.
Adeola Adeniyi is a Senior Associate at Kenna
Partners. Email: aadeniyi@kennapartners.com