CORAM

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PARTIES

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CRUSADER STERLING PENSIONS LIMITED APPELLANTS

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TAIWO MOJEED AJASA RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Claimant now Respondent was a pioneering staff of the Appellant’s Company where he had worked in for 10 years and decided to resign which resignation the Appellant accepted. In line with the Appellant’s Employee Policy Manual, the Respondent sought to be paid his gratuity having spent 10 years in the Company. The Appellant refused to pay him his gratuity despite his request hence; he commenced an action at the National Industrial Court wherein he claimed from the Appellant a declaration that he is entitled to the payment of gratuity as a pioneering staff who had worked for 10 years for the Appellant. The Appellant did not deny all the facts as stated above but stated in their defence that the gratuity scheme does not really exist, as it was merely a statement of intention. The lower court after consideration of all the evidence before it, granted the claims of the Respondent. Dissatisfied with the decision of the lower court, the Appellant has filed this appeal contending that since the judgment was delivered outside the 90 days required to deliver judgment, there is a miscarriage of justice as the judgment and the orders made are not supported by evidence.

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HELD

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Appeal Dismissed

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ISSUES

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Whether or not the Respondent is entitled to a declaration that the refusal of the Appellant to pay the Respondent gratuity was a breach of the contract of employment. Whether or not the Respondent was entitled to an order compelling the Appellant to compute the amount payable as gratuity. Whether or not the judgment delivered is unconstitutional, null and void.

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RATIONES DECIDENDI

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DELIVERY OF JUDGMENT – IMPORT OF SECTION 294 (1) AND (5) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA ON THE DELIVERY OF JUDGMENT

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Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria Provides thus:
“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.”
The constitution recognizing that in some cases beyond human control, a court may not deliver judgment within the 90 days made provision in subsection 5 in circumstances that the judgment will not be declared null and void or set aside. I now reproduce Section 294 (5) of the Constitution:
“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.”

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DELIVERY OF JUDGMENT – CONSIDERATION ON WHETHER A PARTY HAS SUFFERED A MISCARRIAGE OF JUSTICE AS A RESULT OF INORDINATE DELAY BETWEEN THE CONCLUSION OF A TRIAL AND THE DELIVERY OF JUDGMENT

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“In Akoma & Anor vs. Osenwokwu & Ors. (2015) 5-6 SC (Pt. iv) I, (a case Appellant’s counsel referred to) the Supreme Court per Okoro JSC held:
“Now, Section 294 (1), (5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides”
“(1) 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.
(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 or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) as soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this Section, the person at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
From the above constitutional provision, 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 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.
In Dibiamaka V. Osakwe (1989) 3 NWLR (pt. 107) 101, this Court held that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of a trial and the delivery of judgment, the emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the Court. That is, if this inordinate delay apparently and obviously affected the Court’s perception, appreciation and evaluation of the case. Then the Appellate Court would intervene. It is my view that in the circumstance such as this, it is the duty of the Appellants to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment.” –

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DELIVERY OF JUDGMENT – WHETHER THE COURT HAS POWERS TO DECLARE A JUDGMENT DELIVERED OUTSIDE THE STATUTORY PERIOD A NULLITY

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“The combined reading of section 294 (1) and (5) of the Constitution and the interpretation given above shows that no appellate court has powers to declare a judgment a nullity simply because it was delivered more than 90 days after final address was taken. To hold such a hard stand will defeat the tenet of justice, which a court stands for particularly in this age of pursuing substantial justice instead of technical justice. To hold that a judgment is a nullity implies that all the proceedings, time and money spent are all wasted and the case will have to start all over again. This will be a long journey and parties may lose interest and resort to self-help. It is to avoid such chaotic situation that the law makes provision for subsection 5 of section 294 of the Constitution. Since the main duty of the court is to do justice, the law makes provision to the effect that the judgment delivered after 90 days will only be a nullity if the party complaining has suffered some injustice as a result of the delay. The burden is on the party to show what miscarriage of justice he has suffered as a result of the delay. Failure to show this, any complaint of delivery of the judgment outside 90 days will be of no issue and indeed of no moment. The real issue is not that judgment was delivered after 90 days but whether the party suffered any form of injustice arising from that. See Dambo vs. Waziri (2014) LPELR-23983 (CA). I find very instructive in this regard the judgment of this court in NNPC vs. Zaria &Anor (2014) LPELR-22362 (CA) per Abiru, JCA in pages 63-68. This court held thus:
“This second issue for determination revolves around the interpretation of the provisions of Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria. Section 294 (1) reads:
“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“
Section 294 (5) states 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.”
These provisions have been interpreted severally by the Courts to mean that by a combined reading of the provisions of Sections 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, a party cannot seek to nullify a judgment of Court simply because it was delivered outside the ninety day period allowed by the Constitution. The party must proceed further to convince the Court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate Court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not strictly on the length of time simpliciter but on the effect it produced in the writing of the judgment – Savannah Bank of Nigeria Ltd V. Starite Industries Oversees Corporation (2009) 8 NWLR (Pt. 1144) 491, International Beer and Beverages Industries Ltd V. Mutunci Company (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487, Kolawole Industrial Company Ltd V. Attorney General, Federation (2012) 14 NWLR (Pt. 1320) 221 and Peoples Democratic Party V. Okorocha (2012) 15 NWLR (Pt. 1323) 205.
This Court agrees with this interpretation given to the provisions of Section 294 (1) and (5) of the 1999 Constitution and it represents the literal meaning of the wordings of the section. This Court, however, believes that the interpretation must be qualified by the concepts of common sense and reasonableness. After all, there is always presumption against the legislature intending what is unreasonable and abhorrent to common sense in the interpretation of statute and as such, in construing statutes, the construction agreeable to justice and reason must be adopted Ibrahim V. Sheriff (2004) 14 NWLR (Pt. 892) 43, Elabanjo V. Dawodu (2006) 15 NWLR (Pt. 1001) 76, Sobamowo V. Elemuren (2008) 11 NWLR (Pt. 1097) 12. The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at Page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An unreasonable result is not to be imputed to a statute if there is some other construction available.”
Looking at the provisions of Section 294 (1) and (5) of the 1999 Constitution in the light of these concepts, the delay that must have been envisaged by the drafters of the provisions of Section 294 (5) of the Constitution must be one that is within reason and common sense. Thus, the requirement that a party complaining of delay in the delivery of judgment must go further to convince the Court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof can, and should, only be applicable where the delay itself is reasonable and it is explained by the lower Court in the judgment. Where the delay is unreasonable and it is not explained, the very fact of such delay should be sufficient ground for the appellate Court to find that there has been a miscarriage of justice. The reasons for this position are simple. The Courts recognize that what amounts to miscarriage of justice varies in relation to particular facts of a case and that to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law – Adigun V. Attorney General, Oyo State (1987) 1 NWLR (Pt. 53) 678, State V. Ajie (2000) 11 NWLR (Pt. 678) 434, Adebayo V. Attorney General Ogun State (2008) 7 NWLR (pt. 1085) 201.
The term “justice” means proper administration of laws; the constant and perpetual disposition of legal matters or disputes to render every man is (sic) due. In Obajinmi V. Adedeji (2008) 3 NWLR (Pt. 1073) 1, the Court of Appeal stated that “justice means fair treatment, and the justice in any case demands that the competiting rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done.” And the insertion of a provision in the Constitution stipulating a time period within which a Court should deliver its judgment in a case after final address is in recognition of the fact that “human memory is limited by time and space and loses its impressions or knowledge of persons, things, with the passage of time and therefore loss increases with time and pre-occupations” – Ifezue V. Mbadugha (1984) 5 SC 79. “Thus, where the delay in the delivery of judgment is unreasonably long, it cannot be contested that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be, seen to be justice according to law. What would amount to reasonable delay must depend on the facts of each case. In the instant case, the delay in the delivery of judgment was four years and seven months and no explanation was offered by the lower Court for the delay. This delay, by all parameters, is not only unreasonable and contrary to common sense, it is also highly irresponsible. To interpret the provisions of the Constitution in a manner that seeks to condone, tolerate and permit such a delay by requiring the party complaining t go further to explain the injustice it suffered by the delay before such a judgment is set aside is tantamount to promoting absurd and irresponsibility an such an interpretation must be unacceptable to anyone concerned with the proper administration of justice. The law recognizes that where reliance on the literal interpretation of wordings of a statute will lead to absurdity, a Court is permitted to depart from that principle of interpretation. This Court is sure that the drafters of Section 294 (5) of the Constitution could not in their “wildest dreams” have envisaged a delay of such a length of time when they were inserting the provision. It is the view of this Court that a delay for such a length of time must be enough ground for this Court to find that there has been a miscarriage of justice and to et aside an nullify the judgment of the lower Court.
Going further and considering whether the Appellant has shown a miscarriage of justice by reason of the delay in the delivery of judgment, the acceptable criteria must be that given by Oputa, JSCC, in Dibiamaka V. Osakwe (1989) 3 WRN (Pt. 107) 101, at page 114 where the learned Justice said thus:
“And the law is that if inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the case. Then the Appellate Court would intervene. It is my view that in the circumstance such as this, it is the duty of the Appellants to show how the delay has affected the perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there (sic), but only there (sic), will an appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
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CONSEQUENTIAL ORDER –NATURE OF A CONSEQUENTIAL ORDER

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“Before I decide in this judgment on who is right and who is wrong, as both of them cannot be right, one point which is trite and clear is that a court of law which is also a court of justice is on good footing to make consequential orders which will meet the course of the justice of the case. In Noekoer vs. Executive Governor Plateau State &Ors (2018) LPELR-44350 (SC), the apex court per Sanusi, JSC at pages 20-21 held:
“It is trite law, that a Court has inherent power to make consequential order. A consequential order is simply one which flows directly and naturally from the decision or order made on issues litigated upon and inevitably consequent upon it. See Akapo v. Hakeem-Habeeb [1992] 2 NWLR (Pt. 247) 266 or (1992) 7 SCNJ 119 or (1992) LPELR 325 (SC).
A consequential order is one which gives effect to a judgment or order to which it is consequential. See Funduk Engineering Ltd Vs Mcarthur & Ors (1996) 7 NWLR (Pt. 459) 153; Obayagbona Vs Obazee (1972) SC 247; Odofin & Anor Vs Agu & Anor (1992) NWLR (Pt.229) 350. Every Court, be it of first instant or appellate has the power and in fact has the duty and obligation to make any consequential order in the interest of justice and it is irrelevant and of no moment that the particular order was not specifically asked for by either party to the proceedings or appeal. See Prince Yahaya Adigun &Ors Vs Attorney General of Oyo State &Ors (1987) 1 NWLR (Pt.53) 678 at 710; Chief Ebenezer &Ors Vs S.K. Owodunni &Anor (1987) 2 NWLR (Pt. 57) 367.”
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CONSEQUENTIAL ORDER – PURPOSE OF A CONSEQUENTIAL ORDER

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“The main purpose of a consequential order is to promote justice in giving life to the finding and decision of a court. If a court decision cannot be enforced it is as good as nothing and so consequential orders can be made by a court to give life to the decision provided it flows from the reliefs sought. A consequential order which is at variance and at cross-purposes or contradictory to the decision of the court will not be allowed to stand by an appellant court. See Chikere & Ors vs. Okegbe &Ors (2000) 12 NWLR (Pt. 681) 274”. –

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DOCTRINE OF ESTOPPEL BY CONDUCT – OPERATION OF THE DOCTRINE OF ESTOPPEL BY CONDUCT

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“Based on the Manual which the Respondent studied very well as recommended in clause 1.0, the Respondent stayed on to enjoy the gratuity and suddenly a month for him to leave to enjoy the gratuity, the Appellant willy nilly without any notice decide to scrap the gratuity. It is too late in the day as the doctrine of estoppel by conduct will apply. Dealing with the doctrine of estoppels by conduct the apex court per Nnaemake-Agu at pages 27-28 in Ude vs. Nwara &Anor (1993) LPELR-3289 held thus:
“By operation of the rule of estoppels a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affaire and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him: See Cane v. Mills (1862) 7 H. & N. 913, at pp. 927-928. Dealing with the broad principle of estoppels in Joe Iga &Ors v. Ezekiel Amakiri & Ors. (1976) 11 S.C 1, this court stated at pp. 12-13: “If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is stopped from avering afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is stopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is stopped from denying the facts as represented.”
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CONSEQUENTIAL ORDER – ESSENCE OF A CONSEQUENTIAL ORDER

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There are several decisions of the Supreme Court, which espoused the essence of a consequential order. For example in Akinbobola v. Plisson Fisko (1991) 1 NWLR (pt. 167) 270 at p. 288, the learned Law Lord, Nnaemeka-Agu, JSC, explained thus:
“A consequential order is not merely incidential to a decision but one necessarily flowing directly and naturally from and inevitably consequent upon it. It must be made to give effect to the judgment already given, not granting a fresh unclaimed or unproven relief. A proper consequential order need not to be claimed but a substantive order must be claimed and sustained from the facts before the court. See also Henry Awoniyi & Ors v. The Registered Trustees of the Resicrusion Order AMORC Nigeria (2000) 5 WRN 1; (2000) 10 NWLR (Pt. 616) 522 at 540.”
Further see: Frederick Obayagbona & Anor v. D. Obazee & Anor (1972) 5 S.C 247 at 254; Garba v. University of Maiduguri (1986) 1 N.W.L.R (pt. 18) 550; The Apostolic Church v. Olowoleni (1990) 6 N.W.L.R (pt. 158) 154; Eagle Super Pack (Nig) Ltd. v. African Continental Bank Plc (2006) 19 N.W.L.R (pt. 1013) 20; AlphonsusOzoude&Anor v. Rev. Benjamin Elias Anago (2016) 10 & 11 C.A.R 274. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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