Court name
Court of Appeal
Case number
B 38 of 2011

College of Education, Ekiadolor And Ors v Obayagbona (B 38 of 2011) [2016] NGCA 80 (23 March 2016);

Law report citations
Media neutral citation
[2016] NGCA 80
Headnote and holding:

The issue was whether the trial judge’s decision was affected by the lapse of time (19 months) between the adoption of written addresses and the delivery of judgment. The dispute emanated from the dismissal of the respondent as the principal assistant registrar of the appellant college. The respondent successfully challenged the dismissal and the lower court awarded him damages amounting to approximately 1.6 million Naira together with reinstatement. 

The appellant challenged the lower court’s ruling on the grounds that due to the time lapse between the hearing of evidence and delivery of judgement the trial judge was not able to make proper judgement. The appellants further argued that the s 294(1) Constitution requires that judgement must be delivered in 3 months.

The court pointed out that section 294(5) of the Constitution also provides that delay in the delivery of judgment does not lead to a judgment being vitiated. The delay must occasion a miscarriage of justice to result in such a conclusion. 

In deciding the matter, the court held that the errors made by the trial judge shows that he was no longer in position to properly appraise the evidence. This resulted in the miscarriage of justice and the appeal was upheld. 

 

 
In the Court of Appeal

 

Holden at Benin

 

Between

Appellant

COLLEGE OF EDUCATION, EKIADOLOR
THE PROVOST, COLLEGE OF EDUCATION, EKIADOLOR
THE REGISTRAR, COLLEGE OF EDUCATION, EKIADOLOR

and

Respondent

J.A. OBAYAGBONA

 

 
Judgement

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Edo State of Nigeria, Benin Judicial Division in Suit No: - B/742/2000 - J. A. OBAYAGBONA AND COLLEGE OF EDUCATION, EKIADOLOR & 2 ORS delivered on 4th day of June, 2010 wherein Judgment was given in favour of the Plaintiff/Respondent and he was ordered to be reinstated to his position as Principal Assistant Registrar.

Briefly, the facts of the case are that the Plaintiff now referred to as Respondent instituted an action against the Defendants now Appellants in 1995 and claimed jointly and severally against the Defendants/Appellants as follows: -
(I) A declaration that the purported termination of the Plaintiff s appointment as Principal Assistant Registrar (Admissions and Records) in the service of the 1st Defendant by a letter Ref No CEB/PC325/167 of 31st March 1995 signed by the 3rd Defendant is irregular, unconstitutional and in breach of the rules of natural justice and is therefore null and void and of no effect whatsoever.
(II) A declaration that the Plaintiff is still in the service on an offer of the 1st Defendant and therefore entitled to all rights, benefits and privileges (including salaries) attached to his post up to the date of Judgment.
(III) An Order of this Honourable Court that the Plaintiff be reinstated to his position as Principal Registrar by the Defendants.

OR IN THE ALTERNATIVE
The Plaintiff claims jointly and severally from the Defendants the sum of N1,587,234.39 One Million, five hundred and eighty-seven thousand, two hundred and thirty four Naira, thirty-nine kobo being the accumulation of his salaries and other allowances he would be entitled to on voluntary retirement at the age of 60 years or such damages as this Honourable Court may deem appropriate having regard to the duration or period it will take the Plaintiff to look for another employment.

At the end of the hearing at the Lower Court, Judgment was given in favour of the Respondent.

Dissatisfied with the said Judgment, the Appellants appealed to this Court.

The learned counsel for the Appellants formulated four issues for the determination of the appeal. The issues are set out as follows: -

(1) Whether from the circumstances of the case

the appointment of the Respondent was properly determined in view of the Public Officers (Special Provisions Act 1984) (Encompassing Grounds I, iii, iv & v)
(2) Whether from the evidence on record, it can be said that the Respondent was denied a fair hearing (Encompassing grounds ii and vii).
(3) Whether the order of reinstatement granted by the Court was proper, taking cognisance of the peculiar facts of the case (Encompassing ground v).
(4) Whether the learned trial Judge was in a position to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of lapse of 19 months from the adoption of written addresses to the delivery of Judgment (Encompassing Grounds vi & vii)

The learned counsel for the Respondent, on the other hand, adopted issues (2), (3) and (4) formulated on behalf of the Appellant and in place of Appellant s Issue 1, he formulated another issue as follows: -
Whether the learned trial Judge was right in holding that the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 did not apply to the Respondent s case. ?

At the hearing of the appeal on 18/1/2016, the learned counsel for the Appellants stated that the appeal is against the Judgment of Edo State High Court of Justice delivered on 4/6/2010.

The Notice of Appeal was filed on 24/8/2010 while the record of appeal was transmitted on 8/2/2011 but deemed as properly transmitted on 21/9/2015. The Appellant s brief of argument was filed on 14/2/2011 and was regularised on 21/9/2015. There is also the Appellant s reply brief of argument filed on 1/2/2012 but regularised on 21/9/2015.

The learned counsel for the Appellants adopted and relied on the said Appellants brief of argument and the Appellants reply brief of argument as his argument in urging that the appeal be allowed.

On his own part, the learned counsel for the Respondent also referred to the Respondent s brief of argument filed on 3/2/2012 which was regularised on 21/9/2015.

He adopted and relied on the said Respondent s brief of argument as his argument in urging that the appeal be dismissed and Judgment of the Lower Court upheld.

I have carefully examined the issues formulated for determination of the appeal by counsel for the

parties and I am of the view that the issues formulated for determination of the appeal on behalf of the Appellants are apt and relevant in resolving the issues in controversy between the parties. I will therefore rely on the said issues.

There are four issues for the determination of the appeal but because of the peculiar nature of the appeal, I will start with Issue No. 4.
ISSUE NO 4
''Whether the learned trial Judge was in a position to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of lapse of 19 months from the adoption of the written addresses to the delivery of Judgment.''

The learned counsel for the Appellants stated that hearing of the suit commenced on 19/7/2006 and evidence was concluded on the 15/10/2007. Written addresses by both counsel were adopted on 24/10/2008 and Judgment was eventually delivered after series of adjournment on the 4th June 2010, that is 19 months after the adoption of written addresses contrary to the provisions of Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

He contended that Section 294 (1) of the said Constitution makes it mandatory for Judgment to be delivered within 3 months from the date of final addresses.

It was submitted on behalf of the Appellants that the delay of 19 months before Judgment was delivered had effect on the Judge s recollection of evidence led by the parties when he subsequently did his appraisal of the evidence led.

The learned counsel for the Appellants gave few instances of the effect the delay had on appraisal of evidence as follows:-
(i) Contrary to the finding of the learned trial Judge, Exhibit N the letter of Termination of Appointment showed ex-facie that the Military Administrator approved the termination of the Respondent s appointment.
(ii) The Respondent never gave an iota of evidence challenging the membership of Mr. Egharevba on the panel and neither did he give any evidence that there was any serious disagreement between himself and Mr. Egharevba contrary to the finding of the trial Judge on page 158 of the record of appeal.
(iii) Exhibit J relied upon by the Lower Court as evidence of bias by Mr. Egharavba was the Respondent s reply to the query

issued to him by the 1st Appellant and had nothing to do with Mr. Egharevba.
(iv) Exhibit L relied upon at page 157 by the Lower Court as a mere invitation letter by the panel to the Respondent contrary to the finding of the Lower Court is the report of the panel that investigated the admission scam. The aforementioned Exhibits Terms of Reference and known to the Respondent included identifying those behind the admission scam including staff and recommending appropriate disciplinary measure against them. The query also issued to the Respondent contained details of the allegations against him contrary to the finding of the Lower Court.

The Learned Counsel for the Appellants submitted that from the errors highlighted above, it is obvious that an objective and thorough appraisal of the issues of law and fact was not done, thus occasioning a grave miscarriage of Justice to the Appellants.
He relied on the following cases:-
- LAWAL v. DAWODU (1972) I ALL NLR Part II Page 270 at 280
- AKPOR v. IGUORIGUO (1978) I LPRN Page 36 at 40 cited in
- NNAJIOFOR v. UKONU (1985) 2 NWLR Part 9 Page 686 at 707
- ARIORI & ORS v. ELEMO & ORS

(1978) 1 SC. Page 13 at 27
- ODI v. OSAFILE (1985) 1 NWLR Part 1 Page 17 at 42 - 43
- SAVANAH BANK OF NIG. LTD v. STARITE IND. CORP (2009) 8 NWLR PART 1144 Page 491 at 499 - 500
- FIRST BANK OF NIGERIA LTD v. ADEPETU & CO. NIG. LTD (2009) 11 NWLR Part 1151 Page 156 at 171.

Learned counsel finally urged that this issue be resolved in favour of the Appellants.

The learned counsel for the Respondent in his response showed that he is confused too, when he stated that Judgment was delivered in this appeal at the Lower Court on 6/6/2010 and further that the addresses of counsel were readopted before the Judgment was delivered on 6/6/2010.Whereas Judgment was delivered at the Lower Court on 4/6/2010 according to the record of appeal.

There is nothing in the record to support the submission that addresses of counsel were re-adopted on 6/6/2010 or that Judgment was delivered on 6/6/2010.

Be that as it may, the learned counsel for the Respondent submitted that the learned trial Judge correctly appraised Exhibit N .

It was also contended on behalf of the Respondent that the reference to Exhibit J as source of bias at page 50 of the Judgment is a typographical error.

He went further in his submission that reference to Exhibit L by the learned trial Judge as the mere invitation letter inviting the Respondent to testify before the panel is also a typographical error.

The learned counsel for the Respondent also submitted that Judgment delivered outside 90 days is not necessarily a nullity unless the person alleging so show that the delay occasioned him grave miscarriage of Justice.
He relied on the case of:- SAVANAH BANK OF NIG. LTD v. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) & NWLR Part 1144 Page 491 at 499 - 500

It was further submitted that it is not every slip committed by a Court that will result in an appeal against a Judgment being allowed. An error or slips may be fatal in the sense that it must have occasioned a miscarriage of justice.
He submitted that the error in this case is immaterial.

Learned Counsel for the Respondent finally urged that this issue be resolved in favour of the Respondent.

Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:-

"294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety (90) 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 7 days of the delivery thereof.

294 (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof"

In view of the foregoing provisions of the Constitution set out above, it must be noted that delay in the delivery of Judgment per se does not lead to a Judgment being vitiated. The delay must occasion a miscarriage of justice to result in such a conclusion. See - AKPAN v. UMOH (1999) 7 SC Part II Page 13.

In this appeal under consideration, the following errors have been highlighted: -

(i) It is true that contrary to the finding of the learned trial Judge, Exhibit N the letter of termination of appointment of the Respondent showed ex-facie that the Military Administrator approved the termination of Respondent's appointment.
(ii) Exhibit J relied upon by the Lower Court as evidence of bias by Mr. Egharevba was the Respondent?s reply to the query issued him by the 1st Appellant and had nothing to do with Mr. Egharevba.
(iii) Exhibit ?L relied upon on page 157 of the record of appeal as a mere invitation letter by the panel to the Respondent contrary to the finding of the Lower Court is the report of the panel that investigated the admission scam.
(iv) The said Exhibit L's terms of reference and known to the Respondent included identifying those behind the admission scam including staff and recommending appropriate disciplinary measure against them.

The inordinate delay between the end of the trial and the writing of the Judgment apparently affected the learned trial Judges perception and evaluation of evidence as could be seen with the mix ups highlighted above which showed that he has lost the impression made on him by the witnesses and the Exhibits tendered in this case. And this in my view has resulted in miscarriage of justice.

I therefore agree with the submission of learned counsel for the Appellants that with the errors highlighted above, it is obvious that an objective and thorough appraisal of the issues of law and fact was not done and this in my view has occasioned miscarriage of justice to the Appellants.

It is my view that because of the time lapse between the adoption of written addresses and the delivery of Judgment, the Lower Court was no longer in a position to properly appraise the evidence and this has occasioned a miscarriage of justice to the Appellants.

This issue is therefore resolved in favour of the Appellants and against the Respondent.

With the resolution of this issue in favour of the Appellants and against the Respondent, going into the merit of the remaining three issues has become academic.

In the result, it is my view that there is merit in the appeal and it is allowed by me.

Consequent upon the foregoing, the Judgment of the Lower Court delivered on 4/6/2010 in SUIT NO. B/742/2000 - J.A. OBAYAGBONA v. COLLEGE OF EDUCATION, EKIADOLOR AND TWO ORS, is hereby set aside. In its place, the suit is hereby sent back to the Chief Judge of Edo State for reassignment of the case to another Judge who will hear and determine the case with despatch.

The Appellants are entitled to costs which is fixed at (N75,000.00) Seventy-Five Thousand Naira against the Respondent.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I agree with the judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA and to show my support, I shall make the following comments.

This is an appeal against the judgment of the Edo State High Court of Justice, Benin Judicial Division in Suit No.B/742/2000 delivered on 4th June, 2010 wherein judgment was given in favour of the plaintiff/respondent. The trial was concluded on 15/10/2007 and counsel on both sides adopted their addresses on 24/10/2008 but judgment was not delivered till 4/6/2010 after a period of over one and a half years (19 months). Obviously, there is inordinate delay. An inordinate delay can be defined as the interposing of obstacle so as to hinder, deter and prolong the dispensation of causes before the Court. Delay is known to be one of the greatest impediments to the speedy dispensation of justice in our Courts hence the ancient philosophies stated

"Justice delayed is justice denied."
This maxim is incorporated in the Great Magna Carta of 19th June, 1215 Chapter 40 where he said
"To no one will we deny or delay right of justice."
In the same way, William Shakespears put it as follows:
"All through the years, we have protested at the law's delay, counted as a grievous wrong, hard to bear among the whips and scorns of times.''
Charles Dickens made a satire of the inordinate delay of trials in Court of Chancery in London over century ago in His book. 'Black House"
Chapter one?
"Delay of trial exhaust finances, patience, courage and hope, so over throws the brain and break the heart."
Hence a judicial system which can permit a simple case for example of wrongful termination of employment to remain in the Court for almost ten years cannot be said to be running smoothly and that whatever happens at the end of such a trial can hardly be called justice. Delay defeats equity, protracted delay is opposed to the realization of justice. It pollutes the stream of justice and prompts

injustice of the highest order. It breeds frustration and despair inevitably culminating to resort to self help with attendant chaos and anarchy.
Section 36(1) and 4 of the 1999 Constitution guarantees right to fair trial within a reasonable time. This provision is entrenched in order to ensure speedily trial in our law Courts. Speedily trial is an aspect of public justice, which sets a standard fixed by law and society, which a judge must attain in the determination of cases before him. I cannot but condemn in the strongest term the delay for a period of 19 months to deliver judgment after the adoption of final written addresses in this case by the learned trial judge of the Court below. See CHIEF MAXWELL DAKIPIRI ODI v. CHIEF HARRISON IYALA (2004) 8 NWLR (PT.875) 283; ANYAKORA v. OBIAKOR (2005) 5 NWLR (PT.919) 507 and UBIERO v. STATE (2005) 5 NWLR (PT.99) 544.

For the foregoing and the fuller reasons in the lead judgment, I also hold that the appeal is meritorious and I allow it. I abide by the consequential order setting aside the judgment of the Court below delivered on the 4th June, 2010 and remitting back the Suit to the Chief Judge of Edo State for reassignment to another judge other than the learned trial judge.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: This is an appeal in which at the Court of trial, adduction of evidence was concluded on 15th October, 2007. Thereafter, learned counsel filed their final written addresses which was adopted on 24th October, 2008. However, the Lower Court did not deliver its judgment until 4th June 2010, nineteen (19) months after the addresses were adopted and thirty-one (31) months after adduction of evidence was concluded.

Section 294(1) of the 1999 Constitution stipulates as follows:

"Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof"

As already stated, it took the Lower Court nineteen (19) months after adoption of final addresses and thirty-one (31) months after adduction of evidence before it delivered judgment. The period between adoption of final addresses and delivery of

judgment is clearly in excess of the ninety days stipulated in Section 294(1) of the 1999 Constitution. It therefore goes without saying that the decision of the lower Court fell short of the stipulation in Section 294(1) of the 1999 Constitution. However, by Section 294(5) of the 1999 Constitution a decision given in excess of ninety days, does not ipso facto become a nullity unless a party has suffered a miscarriage of justice as a result of the delay. The said Section 294 (5) provides thus:
"The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof."
The Appellant argued that the judgment of the Lower Court is an amphigory as the Lower Court was discombobulated as to the evidence that was adduced as at the time it delivered its judgment because it memory had become dulled and blunted by the passage of time, nineteen (19) months after adoption of address and thirty-one (31) months after conclusion of evidence.

Section 294(1) of the Constitution is not to be interpreted and applied in isolation, it should be read in conjunction with Section 294(5) which provides that the decision of the Court is not to be set aside or treated as a nullity solely on the ground of non-compliance with Sub-section (1) unless a miscarriage of justice is shown to have been occasioned by reason of the delay, in order to arrive at a proper understanding of the stipulations of the Section: PDP v. TAIWO (2004) 8 NWLR (Pt.876) 656 at 676 and DURO v. INEC (2010) LPELR (8587) 1 at 24. Therefore the regnant legal position will seem to be that the effect of non-delivery of a decision by a Court within ninety days is that such a decision would no longer be set aside for being a nullity unless the delay had occasioned a miscarriage of justice. See ATUNGWU v. OCHEKWU (2004) 17 NWLR (PT.901) 18, IGWE v. KALU (2002) 5 NWLR (Pt.761) 678; ACB v. AJUGBO (2011) LPELR (3637) 1 at 34-35 and MOLEGBEMI v. AJAYI (2011) LPELR (4501) 1 AT 30-32.

From the foregoing, the decision of the Lower Court can only be set aside if this Court is satisfied that

the delay occasioned a miscarriage of justice. As has been admirably demonstrated in the leading judgment of my learned brother, Jimi Olukayode Bada, JCA, which I was privileged to read in draft, the Lower Court was addled as to the evidence adduced due to long delay of nineteen (19) months between adoption of final addresses and delivery of judgment and thirty-one(31) months since adduction of evidence was concluded. Resultantly, the Lower Court muddled the evidence in such a manner that it occasioned a miscarriage of justice. In such circumstances, the community reading of Section 294(1) & (5) of the 1999 Constitution serve to render the judgment of the Lower Court a nullity.

It is for the foregoing reasons and the more elaborate reasons contained in the lead judgment, which I am allegiant to; that I equally join in allowing this appeal. The decision of the High Court of Edo State in Suit No.B/742/2000 delivered on 4th June, 2010 is hereby set aside. I abide by the consequential orders made in the lead judgment.
 Appeal Dismissed.

Counsel

Mr. P. O. Osemwenkha with him J. Ogieva For Appellant
Mr. E. I. Omoregie For Respondent