A Final Written Address Filed Out of Time is not Incompetent

There are stipulations as to time frame within which certain acts are to be done in Court proceedings. There will, undoubtedly, be instances where the party will be unable to comply with the time frame stipulated by the Rules of Court.

Now, the big question is: Does non-filing within the stipulated time render the process incompetent and incurably bad? BARKA, J.C.A., answering this question while delivering the leading judgment in Avzat Intl ltd & anor V. Ecobank (Nig) ltd (2018) LPELR-44851(CA) said “…But supposing the written address in contention was to have been filed out of time as contended, will that make the address incompetent, and therefore unusable? I do not think so”.

The learned Justice underscored his position when he said “I fail to agree with the learned counsel for the appellant that the failure of the respondent to abide with the stipulations of Order 39 Rule 16 of the rules of the lower Court, in the filing of the defendant’s final written address by a day, rendered the address incompetent in the circumstance, and the reliance of the lower Court on same to be damnified in the circumstance.”

Buttressing the position that filing out of time will not render a final written address incompetent, UGO, J.C.A, in his own contribution posited that “provision of the rules of Courts relating to time for service of processes between parties is purely technical in nature and for the convenience of parties so any failure in that regard is mere irregularity, and not nullity, which the Court can overlook, just like parties can also waive it.”

In the year 2008, Avzat International Limited (claimant/appellant- forthwith called “appellant”) – a company incorporated under the Nigerian law and dealing in Petroleum products, obtained an overdraft facility from Oceanic Bank Plc.,( now Ecobank Nigeria Ltd,) Ilorin Branch (the defendant/respondent- forthwith called “respondent”) in the sum of five million naira only (5,000,000.00) for a period of 180 days to finance her working capital. The loan was granted and accessed by the appellants.

Unfortunately, the appellants were unable to repay their indebtedness at the expiry of the 180 days. Consequently, the Bank started mounting pressure on the appellant asking it to liquidate its indebtedness. The appellants negotiated with the respondent through its officers that the total indebtedness of the appellants to the respondent be liquidated by paying the principal sum of five million naira. This, the appellants paid in one swoop.

Appellants were therefore surprised when in November, 2010 the respondent demanded the payment of outstanding indebtedness to the tune of five million two hundred and fifteen thousand eight hundred and seventy-five naira seventy-nine kobo; (5,215,875.79). It was also contended by the appellants that having paid their full indebtedness as agreed between the parties, they were no longer owing. Appellants therefore demanded that their collateral deposited with the respondents be released to them. They were however met with stiffer demands for payment by the respondents. This was what led to the institution of the claim before the trial Court.

On the flip side, the respondents apart from denying the claimants’ claim and insisting that it never gave any authorization to anybody to negotiate the loan repayment; counterclaimed for the debit balance against the claimants which had grown to a whopping N11,478,393.32 (Eleven million four hundred and seventy-eight thousand three hundred and ninety-three naira thirty two kobo).

At the trial before the lower Court, parties called witnesses and tendered documents and at the close of trial, the trial Court dismissed the appellants’ claims and granted the respondent’s counterclaim.

Dissatisfied with the judgment of the trial Court, the appellants filed this appeal.

The appellants formulated four issues for determination of this Appeal and same were adopted by the Court viz:

All the issues were resolved against the appellant and the appeal failed for want of merit and same was dismissed by the Court of Appeal. The decision of the trial Court as delivered on the 30th of September, 2016 was consequently affirmed.

Costs of N20,000 only was awarded in favour of the respondent.

“It has been argued by the appellants, that failure by the respondents to file in their final written address within the time frame of 21 days, rendered the written address incompetent, the reason being that evidence having closed on the 17^th of December, 2015 and the final written address filed on the 8th of January, 2016, a period of 22 days as against the 21 days allowed by law, the Court ought not to have considered the respondents written address in the consideration of the suit before it. I have noted upon a close look at the defendant/counterclaimants final written address, particularly by paragraph 1.04 thereof, that the late filing was occasioned by the industrial action embarked upon by the judiciary workers Union. But supposing the written address in contention was to have been filed out of time as contended, will that make the address incompetent, and therefore unusable? I do not think so. It must be noted also that the appellant by his own calculation concluded that the late filling was by one day. I am not in the least enthused by the complaint as made by the appellant on this score, for it has been held by the Apex court, which I fully subscribe to, that though rules of Court are meant prima facie to be obeyed, but where there has been noncompliance with the rules, and such noncompliance explained away, and of a minimal kind, then the indulgence of the Court can be granted in its favor. This is even so where the person affected by the non-compliance, acted on it by filing a reply address, and thereby failed to timeously raise the noncompliance but rather responded to the address thus taking a fresh step in the proceedings. See Chief Onwuka Kalu vs. Victor Odili & ors (1992) NWLR (pt. 340). In the instant case, not only is the lapse being complained of minimal, but that which was explained away, and the trial Court satisfied with the explanation offered in respect of the filing of the final address late in time by a day. Not only that, the appellant responded to the same address when it filed a response thereto. In Duke vs. Akpabuyo Local Government (2005) 19 NWLR (pt. 959) 130, while restating the law that rules of Court must prima facie be obeyed and complied with, went further to state that it is not every noncompliance with the rules of Court that will nullify the proceedings. See Chief Eboh vs. Akpatu (1968) 1 ANLR 220 and Ezera vs. Ndukwe (1961) 1 ANLR 564. Moreover, as held by Belgore JSC in UTC (Nig) Ltd vs. Pamotei (1989) 2 NWLR (pt. 103) 244 @ 296:

“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause will to my mind be making the Courts slavish to the rules. This certainly is not the raison d’ etre of rules of Court. See Salami vs. Bunginimi & Anor (1998) 9NWLR (pt. 565) 235, Saude vs. Abdullahi (1989) 4 NWLR (pt. 116) 387,  Izedonmwen vs. UBN Plc (2012) 6 NWLR (pt. 1295) 1, AG Bendel State vs. AG Federation (1982) 3 NCLR 1, Oloruntoba-Oju vs. Abdul-Rahman (2009) 13NWLR (pt. 1157) 83.

I fail to agree with the learned counsel for the appellant that the failure of the respondent to abide with the stipulations of Order 39 Rule 16 of the rules of the lower Court, in the filing of the defendant’s final written address by a day, rendered the address incompetent in the circumstance, and the reliance of the lower Court on same to be damnified in the circumstance. It does not matter the fact that the lower Court relied on wrong provisions of the law. The Apex Court in the case of Thomas vs FJSC (2016) 11 NWLR (pt. 1523) 312 @ 325 – 326, in clearing the state of the law, in situations similar to the one at hand, opined that:

“the requirement that parties state the rule of Court by virtue of which they assert a relief is technical and merely prescribes procedural steps for the guidance of the parties. The essence of a Court is to do substantial justice. Once a remedy is provided for by any written law, and it is properly claimed by a party, the remedy cannot be denied the party simply because he has wrongly stated the rule of Court under which the relief is sought. See also Falobi vs. Falobi (1976) NMLR 169 amongst many others. The argument to my mind is untenable, and hereby discountenanced for the reasons pointed out.”Per BARKA, J.C.A. (Pp. 12-16, Paras. A-C)

“…I only want to add, as regards the complaint of appellant about the alleged incompetence of the final address of respondent which was filed at the lower Court a day outside the time fixed by the rules of that Court that the provision of the rules of Courts relating to time for service of processes between parties is purely technical in nature and for the convenience of parties so any failure in that regard is mere irregularity, and not nullity, which the Court can overlook, just like parties can also waive it: see Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 @ 541 – 546 (Nnaemeka-Agu, J.S.C); Nduka v. Chiejina (2002) FWLR (PT 117) 1178 @ 1198, B-D; SPDCN Ltd v. Egweaja (2016) 10 NWLR (PT 1519) 1 @10 -11 F-S (relating to a brief of argument filed out of time); F.S.B. v. Imana Ltd (2000) 7 SCNJ 65 @ 79: See also E. B. Ukiri v. Geko Prakla (Nig.) Ltd (2010) 16 NWLR (PT 1220) 554 where Musdapher, J.S.C., as he then was (with the concurrence of his learned brothers Onnoghen, Tabai, Muntaka-Coommassie and Adekeye J.S.C.) said (at @ 558 para A-F):

“It is settled law that the Courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. This Court in the case of United Bank for Africa Ltd V Dike Nwora 1978) 11- 12 SC 1 at 6- 7 held that a statement of defence filed out of time and in contravention of the rules of Court was not a void document and remain “a valid document until set aside” Fatayi Williams JSC (as he then was) stated in that case:-

‘….. If a defence has been put in, though irregularly. the Court will not disregard it, but will see whether it set up grounds of defence which, if proved, will be material and if so will deal with the case in such manner that justice can be done.’

“Similarly, in this case where the respondent complied with the conditions of appeal and even if out of time is of no moment. See also Nofiu Surakatu v. Nigeria Housing Development Society Limited (1981) 4 SC 26 where it was held that, the Court has a duty to do substantial justice between the parties hence it would not allow any irregularity which does not affect the real justice of the matter to affect an otherwise just decision. This case has overruled the earlier decisions in Adesina Moses v. Ogunlabi ( 1 975) 4 SC 81 and Addis Ababa v. Adeyemi (1976) 12 SC 51 which voided appeals for failure to execute bonds. In my view the complaints of the appellant are misconceived.”Per UGO, J.C.A. (Pp. 41-43, Paras. E-E)

“The second arm of the appellants’ complaint in the issue is anchored on what he termed the refusal of the lower Court to consider and to give effect to vital issues raised in the trial of the case. He enumerated areas which he raised in his written address, but which the lower Court allegedly failed to consider. It is the position of the law, that a Court of law properly so called, is duty bound to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision, and failure to do so amounts to a miscarriage of justice. The cases of Ovunwo & Anor vs. Woko & 2 ors (2011) 6-7 SC (pt.1) 1 @ 20 – 21, Brawal Shopping (NIG) Ltd vs. Onwadike Co. Ltd (2000) 6 SC (pt. 11) 133 @ 140, Goodwill & Trust Investment Ltd & Anor vs. Witt and Busch Ltd (2011) 2-3 SC (pt. 1) 176 @ 208, Alhaji Saidu Sanusi vs. Alhaji Saheed Sa’anun (unreported) Appeal No. CA/IL/52/2013, all cited by the appellant are apposite.”Per BARKA, J.C.A. (Pp. 16-17, Paras. D-B) (2018) LPELR-44851(CA)

“The plank of the appellants case with regards to this issue centers on whether the appellant satisfied the evidential burden of establishing that the terms incorporated in exhibit 1, were indeed altered by agreement made between it and the alleged agents of the respondents. This is so because, the law places the burden of proving a fact asserted on that party that made the assertion. To that respect, Section 131 (1) and (2) of the Evidence Act 2011 provides that;

131 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The further provision of Section 132, of the same Evidence Act, provides that, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof in civil cases as in the present case is not static, unlike in criminal proceedings, as provided by Sections 133, 136, 138 and 140 of the Act. See Adegoke vs. Adibi (1992) 5 NWLR (pt. 242) 410 per Nnaemeka Agu JSC.”Per BARKA, J.C.A. (Pp. 34-35, Paras. D-D)

“It is trite that the contents of a document are enough proof of what it intends as documents speak by themselves. In the same vein a document executed by a party binds him. See Okoya vs. Santilli (1994) 4 NWLR (pt. 338) 256, SS GMBH vs. T.D. Ind. Ltd (2010) 11 NWLR (pt. 1206) 589 @ 596.”Per BARKA, J.C.A. (P. 36, Paras. D-E)

“…By way of emphasis, I would add a few words. Pursuant to Section 295(5) of the 1999 Constitution a judgment, decision or order delivered or made after the stipulated period of ninety (90) days does not render the judgment or order invalid except the appellant can satisfy the Court that the non-delivery of the judgment (as has arisen in this case) has occasioned a miscarriage of justice to him. See, OWOYEMI VS. ADEKOYA (2003) 18 NWLR (PT. 852) 307 and DENNIS AKOMA & ANOR VS. OBI OSENWOKWU & ORS (2014) LPELR – 22885 -(2014) 11 NWLR (Pt 1419) P. 462.

The appellant has the onerous task of establishing that the delay occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses, testify or that he had lost his impression of the trial due to inordinate delay. This, the appellants failed to do. See, AKPAN VS. UMOH (1999) 7 SC (PT. 11). I am of the view that it is better and advisable that an appellant focuses more on the contents of the grounds of appeal rather than such a trivial challenge of the entire judgment on appeal for the reason that it was not delivered within the stipulated ninety (90) days. This is no excuse though for the trial Court to have unnecessarily delayed the judgment on appeal for the flimsy reason it gave.”Per UWA, J.C.A. (Pp. 40-41, Paras. A-B).