"Learned counsel for the parties adopted their written addresses on 4th August, 2010 and the matter was adjourned for judgment. Judgment was delivered about one year and eight months after; precisely on the 4th June, 2012.
The Court below offered the following explanation: "Before I conclude I wish to state on record that this has been one of the long standing cases before the Court and due to some circumstances attending to election tribunals, ill-health and other unforeseen circumstances the judgment could not be delivered earlier than today, it is my view that this delay has not prejudiced any of the parties. An adage says better late than never."
The Appellants do not agree with the Court below that the delay had not prejudiced any of the parties. They have accordingly dangled Section 294(1) of the 1999 Constitution Federal Republic of Nigeria before this Court. It is their submission that the delay occasioned miscarriage of justice to them. Section 294(5) of the 1999 Constitution Federal Republic of Nigeria 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." Miscarriage of justice has been defined as failure of justice. Failure on the part of the Court to do justice.
"It is justice misapplied, misappreciated, it is an ill-conduct on the part of the Court which amounts to injustice. Miscarriage of justice arises in a decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial right of a party. The burden of proof is on the person alleging that justice had been miscarried." See Tobi JSC in Pam & Anor. V. Mohammed & Anor. (2008) LPELR -2895SC at page 74 and Gbadamosi v. Dairo (2007) LPELR -1315SC at page 23-24. A party raising as a ground for attacking the findings of facts of the trial Court on the ground that there was an undue delay in the trial of the case must show the specific finding of fact which could be faulted as a result of the delay.
In deciding whether a party has suffered a miscarriage of justice as a result of undue delay in the delivery of judgment, the emphasis is not on the length of time simpliciter but on the effect produced in the mind of the Court. If the undue delay apparently affected the Court's perception, appreciation and evaluation of the case, then the Appellate Court will intervene. See Akoma & Anor. v. Osenwokwu (2014) LPELR - 22885SC at 70-80 per Okoro JSC. Hon. Justice B. P. Lawi (now of blessed memory) who delivered the judgment complained of ill-health as one of the reasons for the delay.
As pointed out earlier in the judgment, the case before the Court below which it accepted was that the Appellants purchased building materials from the 1st Respondent and issued cheques to 1st Respondent who in turn deposited the cheques in the 2nd Respondent bank. The cheques were returned unpaid. The Appellant has not shown which of the findings of the Court below can be faulted as a result of the delay in the delivery of the judgment. The evidence before the Court below was essentially documentary and demeanour of witnesses was irrelevant in the consideration of the cases for the parties. In the circumstances, this Court has no reason to set aside the judgment on the ground that there was undue delay in the delivery of the judgment."
Per ABIRIYI, J.C.A. IN KWACHAM CONSTRUCTION CO. LTD & ANOR v. ABADA (NIG) LTD & ANOR CITATION: (2018) LPELR-44000(CA)
