"The parties adopted their respective addresses on the 18th January, 2010 but finally ruling was delivered on the 26th of May, 2010 which obviously is beyond the 90 days required by the Constitution. The parties are agreed on this point. This is in clear breach of the Constitution. However, the same section of the Constitution also provided a condition precedent to setting aside a judgment delivered outside the 90 days window at Subsection (5) which provides as follows: "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." From the Subsection (5), a judgment delivered outside the 90 days period will not be set aside solely on that ground unless the Appellant shows that it occasioned a miscarriage of justice. In other words, the Appellant must establish that the trial judge did not take a proper advantage of seeing or hearing the witnesses who testified or that he has lost the impressions of the trial due to such delay. That is the situation where witnesses were taken in a trial and where oral evidence and cross examination was part of the trial. The apex Court held that the delay per se does not lead to a judgment being nullified unless such a delay must have occasioned a miscarriage of justice. See OWOYEMI v. ADEKOYA (2003) 18 NWLR (Pt. 852) 307, DENNIS AKOMA & ANOR v. OBI OSENWOKWU & ORS (2014) LPELR-22885.
The essence or spirit behind the 90 days in Section 294(1) of the Constitution 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 memory of the judge. However, a situation where appreciation, perception by the Court is not affected and evaluation can still be done, that is where the hearing is basically documentary, time lapse may not have such adverse effect on the mind of the judge and the miscarriage of justice may then be difficult to establish. This is because there is hardly anything oral since the decision of the Court was based on applications made in writing with documentary exhibit. A party cannot simply use the 90 day period to deliver judgment as basis for seeking to nullify a judgment delivered outside the period stipulated. Such a party must proceed beyond that to show the miscarriage of justice he suffered by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate Court will find it difficult to disturb the judgment of the trial Court. The emphasis is placed not on the length of delay but on the effect the delay had in the mind of judge while writing the judgment, see SAVANNAH BANK OF NIGERIA v. STARITE IND. OVERSEAS (2009) 8 NWLR (Pt. 1144) 491; PEOPLES DEMOCRATIC PARTY v. OKOROCHA (2012) 15 NWLR (Pt. 1323) 205; KOLAWOLE INDUSTRIES COMPANY v. ATTORNEY GENERAL FEDERATION (2012) 14 NWLR (Pt. 1320) 221. In this case, it was an application fought by way of affidavit evidence and the need to recall the impression created by the witnesses does not really arise. That notwithstanding, the Appellant must establish the miscarriage of justice occasioned by the delay which he has failed to do. The Appellant's main complaint is about the manner or form the ruling was written and delivered which is a complaint that has nothing to do with the time the judgment was supposed to have been delivered. It would just serve the interest of parties better if trial Courts judgments deliver within the time stipulated to avoid any misgivings and suspicion that could arise as to the reasons for doing so. Except absolutely unavoidable, trial Courts should comply with the constitutional requirement and not hide behind the proviso of Subsection (5) to deliver judgments outside the 90 days stipulated.
My learned brother GARBA, JCA, expounded on the issue in the case of OLUSANYA v. U.B.A. (2017) LPELR (42348) 1 at 10-12 as follows: "I want to emphasize that all Courts in the country, especially Courts of record established by the Constitution as custodians of the Constitution, have the primary judicial obligation and duty to comply and ensure compliance with clear and plain provision of Constitution in the discharge of their functions of adjudication in case/matter brought before them. DINGYADI v. I.N.E.C. (2011) 10 NWLR (1255) 347. It is undesirable that a Court would spuriously attempt to subvert or frustrate the clear provisions of the constitution which it has the duty to uphold and comply with. My learned brother has shown the futility of the unwitting attempt by the High Court to avoid the requirement of Section 294 (1) of the Constitution by calling the parties to 're-adopt' their final addresses... Section 294 (5) of the Constitution should not be seen as a magic wand that would condone all manners of flagrant disregard of Section 294 (1) or a license for the nonchalant attitude to the compliance with the provisions."
Per NIMPAR, J.C.A. IN IHEAKAM v. FBN CITATION: (2017) LPELR-43545(CA)
