Savannah Bank Of (Nig.) Ltd. V. Starite Industries Overseas Corporation (2009)
LAWGLOBAL HUB Lead Judgment Report
J.O. OGEBE, JSC
This is an appeal brought by the Savannah Bank Nigeria Limited which was the appellant in the Court of Appeal Lagos Division which dismissed its appeal on the 29th of June 2000.
The claim before the High Court of Lagos State Ikeja was for the sum of N884,609:25, the equivalent of 172, 921.85 Dollars being the amount due and owed to the plaintiff from the defendants. The 3rd defendant now appellant acted as a collector of the plaintiff but failed to remit the dollar equivalent to the plaintiff. The trial court on the 28th of January 1993 gave judgment against the 3rd defendant now appellant in the sum of One million seven hundred thousand eight hundred and eighty-one Naira five Kobo (N1,700,881.05).
Before this Court the learned counsel for the appellant raised two issues for determination as follows:
“(1) Whether there was a breach of S285 (1) of the Constitution of the Federal Republic 1979 and if so what are the consequences.
(2) Whether the miscarriage of justice referred to in the amendment to S258 (1) of the constitution 1979 known as S258 (4) is determined by the peculiar circumstances of each case and must invariably be the result of the delay in delivering judgment.”
These questions are hypothetical in nature and do not seriously address the real issue in this appeal which is whether or not there is evidence in the record to show that the High Court delivered its judgment outside the 3 months periods stipulated in the 1979 constitution and caused a miscarriage of justice to the appellant as a result.
The learned counsel for the respondent also filed a brief of argument and formulated three issues for determination as follows:
“(i) Did the judgment of Hon. Justice S.O. llori (as he then was) delivered on 28th day of January, 1993 after the close of counsels address on 1st December 1992 a period of 2 months less 3 days or 59 days not comply with the provisions of section 258 (1) of the 1979 Constitution and the modification Amendment Decree No. 17 of 1985.
(ii) Is the ground of appeal based on facts as to period between the time of addresses and judgment not one for which an order of the Supreme Court is needed and is a ground of law and misdirection competent?
(iii) Would the Supreme Court not grant an amendment to meet the Justice of a case in the Supreme Court in accordance with the principle in Adekeye v. Akin Olugbade (1987) 1 NSCC 865.”
Only the first issue is relevant for the determination of this appeal. The 2nd and 3rd issues are not in any way related to the grounds of appeal. The main argument of the learned counsel for the appellant is that the trial court completed the hearing of evidence and final addresses on the 22nd of May 1992 and gave its judgment on the 28th January 1993, contrary to Section 258 (1) of the 1979 Constitution. He submitted that the Court of Appeal was wrong in its view that addresses were concluded on the 1st December 1992 and not on the 22nd of May 1992.
The learned counsel for the respondents on the other hand submitted that the trial court inadvertently omitted to take a motion for amendment of the plaintiff’s claim which was in the court’s file since January 1992 when it concluded the hearing on the 22nd of May 1992 and reserved the case for judgment. Subsequently a motion to arrest the judgment was brought before the trial court so that the motion for amendment of the claim would be taken before judgment would be delivered. These two motions were taken on the 1st of December 1992 and judgment was reserved and delivered on the 28th of January 1993.
Section 258 (1) of the 1979 Constitution stipulates that every court established by the constitution shall deliver its decision in writing not more than three months after the conclusion of evidence and final addresses. This meant that any judgment delivered outside three months of the conclusion of evidence and final address was automatically a nullity. See Utih v. Onyivwe (1991) NSCC Vol. 22 Pt. 1, 42. Obadiaro v. Uyigue (1986) NSCC Vol. 17 Pt. 1, 439.
However, with the amendment of the constitution by the Constitution (Suspension and Modification) Amendment Decree 1985 a new subsection 4 was added as follows:-
“258 (4) the decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
With this amendment the current position of the law is that judgment given outside the 3 months stipulated can be saved by the court exercising jurisdiction by way of appeal or review if it is satisfied that the party complaining of such non-compliance has not suffered any miscarriage of justice as a result. See the classical case of Ojokobolo & Others v. Alamu & Another (1987) 2 NSCC Vol. 18, (Pt. 2) at p.991. It is clear therefore that for a party to impugn a judgment delivered after 3 months of final addresses must show that he has suffered a miscarriage of justice as a result.
In the present appeal the appellant has not made any attempt to show that it suffered any miscarriage of justice as a result of the alleged delay in the delivery of judgment. From the record, it is clear that the conclusion of evidence and final addresses on the 22 of May 1992 was a false one because a motion to amend the claim which was filed on the 28th January 1992 was yet to be taken. This inadvertence was brought to the attention of the trial court which then took that motion and the motion to arrest the judgment on the 1st of December 1992 and reserved judgment to the 28th of January 1993.
The learned counsel for the appellant Agbamuche Esq. was in court and objected to the grant of the two applications. He urged the court to dismiss them and give a date for judgment (see page 167 of the printed record). This was an admission on the part of the learned counsel that the judgment was not due until the pending applications were taken. I therefore, agree with the decision of the Court of Appeal that the case before the High Court was not concluded on the 22nd of May 1992 but was finally concluded on the 1st of December 1992 in readiness for judgment. In other words, the 3 months period started counting from the 1st of December 1992 and the judgment delivered on the 28th January 1993 was not in breach of section 258 (1) of the 1979 constitution. I see no merit in this appeal and I hereby dismiss it and affirm the judgment of the court below with costs of N50.000.00 in favour of the respondent.
SC. 161/2002