FAMODU & ORS v. OSU & ORS (2020)

FAMODU & ORS v. OSU & ORS

(2020)LCN/14669(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/IB/334/2013(R)

RATIO

AFFIDAVIT: WHETHER THE COURT CAN ALLOW A DEFECTIVE AFFIDAVIT

Sections 113 and 114 of the Evidence Act 2011 provide as follows:
“113. The Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorised.
114. A defective or erroneous affidavit may be amended and re-sworn by the leave of the Court, on such terms as to time, costs or otherwise seem reasonable.” PER OJO, J.C.A.

COURT: DUTY OF COURT NOT TO BRIDGE THE GAP BETWEEN PARTIES

It is trite that it is not part of the duties of a Court to bridge the gap in the case of parties. To do so will be tantamount to descending into the arena of conflict. See AJUWON VS AKANI (1993) 9 NWLR (Pt. 316)182; SUBERU VS STATE (2010) 8 NWLR (Pt. 1197) 586 and AGBITI VS NIGERIAN NAVY (2011) 4 NWLR (Pt. 1236)175. PER OJO, J.C.A.

APPEAL: DISCRETION OF THE COURT TO RELIST OR RESTORE AN APPEAL DISMISSED FOR FAILURE TO COMPILE RECORD OF APPEAL

The above quoted Rule 20 of Order 8 gives this Court the discretion to relist or restore an appeal dismissed for failure to compile Record of Appeal where the Applicant shows good or sufficient cause. See GOVERNOR OF ZAMFARA STATE VS. GYALANGE (2013) 8 NWLR (Pt. 1357) 462, OLOWU VS. ABOLORE (1993) 5 NWLR (1993) 5 NWLR (Pt. 293)255 and NIGERIA POSTAL SERVICE VS. IDIOHO (2013) LPELR 20820(CA). PER OJO, J.C.A.
APPEAL: WHETHER THE COURT OF APPEAL HAS THE JURISDICTION TO REVIEW ITS DECISION ONCE DELIVERED

Order 20 Rule 4 of the Court of Appeal Rules, 2016 provides as follows:
“The Court shall not review any Judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the Judgment or Order so as to give effect to its meaning or intention. A Judgment or Order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.”
The above provision is very clear. There is no ambiguity. It is clear beyond any per adventure that this Court has no jurisdiction to review its decision once delivered except where to correct any clerical mistake or some error arising from any accidental slip or omission. What this means is that a Court of law has no power to sit as an appellate Court to review or overturn its own decision. See COLE VS. JIBUNOH (2016) 4 NWLR (Pt. 1503) 499, OBIOHA VS. IBERO (1994) 1 NWLR (Pt. 322) 503 and STIRLING CIVIL ENGINEERING (NIG) LTD VS. YAHAYA (2005) 11 NWLR (Pt. 935)181.
A Court however has the inherent jurisdiction to set aside its own decision given in any proceeding where any of the following conditions are shown to exist:
a) When the Judgment is obtained by fraud.
b) When the Judgment is a nullity such as when the Court itself is not competent.
c) When the Court was misled into giving Judgment under a mistaken belief that the parties have consented to it.
d) When the Judgment was given without jurisdiction.
e) Where the procedure adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication.
See EDE VS. MBA (2011) 18 NWLR (Pt. 1278) 236; MICHAEL VS. BANK OF THE NORTH (2015) 12 NWLR (Pt. 1473) 370; MARK VS. EKE (2004) 5 NWLR (Pt. 865) 54 and EZEOKAFOR VS. EZEILO (1999) 9 NWLR (Pt. 619)513.
Where an Applicant in an application to set aside the Judgment of a Court is able to establish the existence of any of the above conditions, the inherent jurisdiction of a Court to set aside its Judgment may be successfully invoked. Where none of the conditions is proved to exist the application fails. PER OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. JONATHAN FAMODU 2. YINKA SONIRAN 3. IDOWU SONIRAN 4. AYO SONIRAN 5. OLUFEMI SOLESI APPELANT(S)

And

OPE OSU 2. CHIEF RAIMI OYEBANJO 3. WAIDI ALAKA (Head Of Orubo Family) (For Himself As Accredited Representative And For The Benefit Of Or On Behalf Of All Members Of ORUBO FAMILY Of Iperu-Remo) 4. ADEKUNLE ATOYE RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This Ruling is sequel to a Motion on Notice filed by the Respondents/Applicants on the 16th of April, 2020 wherein they seek the following reliefs:
1) An Order of Court setting aside ex debito justitiae the proceedings of and any order(s) made thereof on 5th day of July 2018 restoring the Appellants appeal after same had earlier been dismissed.
2) Such Order or further Order(s) as this Honourable Court may deem fit and proper in its discretion to make in the circumstance.

The Motion is supported by a 71-paragraphed affidavit and several exhibits as well as a Counsel’s written address.

The Appellants/Respondents who are opposed to the application filed a 5-paragraphed counter affidavit with some exhibits attached thereto as well as a Counsel’s written address.

The grounds of the Application as contained on the face of the motion paper are as follows:
(a) Failure of the Appellants/Respondents and non-compliance with Order 8 Rules 1 and 4 and Order 7 Rule 10 of Court of Appeal Rules, 2011 in the compilation and transmission of the Record of Appeal entered as

Appeal No: CA/I/334/2013.
(b) Rendering inconsequential, ineffectual and discarding, abandoning or jettisoning the mandatory provisions of Order 7 Rule 10 of the Court of Appeal Rules, 2011.
(c) Omission by the Court of Appeal on 5th July 2018 to take into consideration:
(i) the fact that after the expiration of the sixty (60) days time allocated to the Registrar of the lower Court by Order 8 Rule 1 of the Court of Appeal Rules, 2011 the Registrar of the lower Court ought not to and had no ground in law to get itself involved in the compilation and transmission of the Record of Appeal in this case.
(ii) the failure/dereliction of duty by the Appellants and their Counsel/Solicitors in the compilation of the Record of Appeal under Order 8 Rule 4 and Order 7 Rule 10 of Court of Appeal Rules, 2011 after the expiration of the 60 days allowed to the Registrar of the lower Court by Order 8 Rule 1. See AGBETOBA AND OTHERS VS. LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (Pt. 188) 664 at 696-697, OKONJI & OTHERS VS NJOKANMA & ORS (1991) 7 NWLR (Pt. 202)131.
(d) No weight or no sufficient weight was given by the Court of Appeal on 5th July

2018 to relevant consideration i.e. that the Registrar of the lower Court has no legal power/authority whatsoever in the compilation and transmission of the Record of Appeal in this case after 8th March, 2012 when the sixty (60) days when the Notice of Appeal filed 6th January 2012 in this case has lapsed/exhausted.
(e) Error of law by the Registrar of the lower Court in compilation and transmission of the Record of Appeal in this case by the Registrar of the lower Court on 3rd October 2013 in violation of Order 8 Rules 1 and 4 of the Court of Appeal Rules, 2011.
(f) Incompetent and invalid Record of Appeal compiled on 3rd October 2013 and transmitted by the Registrar of the lower Court to Court of Appeal on 6th October 2013 filed or and entered as Appeal No: CA/I/334/2013 in this case.
(g) Prejudice and injustice that had thereby been done to the Respondents/Applicants for wasted costs, expenses, incurred and anxieties and embarrassments suffered by the Respondents/Applicants for holding themselves bound by the Judgments of the lower Court dated 10th October, 2011 and Court of Appeal dated 22/01/14 and Order 8 Rules 1 and 4 of the Court of Appeal Rules, 2011.

(h) Patent illegality on the face of the Record.
(i) Wrongful exercise of discretion by the Court for acting under mistake/error of law.”

It would be apt at this stage to give a background of the facts leading to this application. Pursuant to a Judgment of the Ogun State High Court in Suit No: HCS/123/2002 between OPE OSU & 2 OTHERS VS. JONATHAN FAMODU & 5 OTHERS delivered on 10th October 2011, the instant Appellants/Respondents who were dissatisfied with the Judgment filed a Notice of Appeal on 6th January 2012.

The 1st-3rd Respondents subsequently filed a Motion on Notice on the 25th of March 2013 wherein they prayed the Court to dismiss the appeal for failure of the Appellant to compile and transmit Record of Appeal in compliance with Order 8 Rules 1 and 4 of the Court of Appeal Rules 2011. In a Ruling delivered on 22nd of January 2014, this Court granted the application and dismissed the appeal.

On the 29th of January 2014, the Appellants who are the instant Respondents filed an application in which they sought to restore/relist their appeal which was dismissed on 22nd of January 2014. In a

unanimous Ruling delivered on 5th July 2018 this Court granted the reliefs sought and restored the appeal back on the cause list. In the Ruling which is attached to the instant application as Exhibit W.A.A., this Court held as follows:
“On the whole therefore, I am of the view that this application has merit. It is accordingly granted. Consequently, it is hereby ordered that:
(a) The Notice of Appeal dated the 04/01/2012 and filed on the 06/01/2012 against the judgment of the Ogun State High Court, Sagamu Judicial Division in Suit No: HCS/123/2002, delivered on the 10/10/2011, be restored or relisted to the general cause list of this Court.
(b) The Record of Appeal numbered as CA/I/334/2013, transmitted to this Court on the 06/10/2013 is consequentially deemed as having been duly compiled, transmitted and served today.
(c) Cost of thirty thousand naira (N30,000.00) is made against the Applicants.

It is the above decision of this Court that the 1st-3rd Respondents/Applicants seek to set aside by the instant Motion.

Learned Counsel to the Applicants, Babatunde Oshilaja, Esq., in his Written Address formulated two issues for

determination to wit:
1) Whether this Honourable Court in the circumstances of this application has the inherent power and jurisdiction and is entitled ex debito justitiae to set aside its Order made on the 5th July 2018 restoring this appeal after same was dismissed on 22/1/14.
2) Whether or not there has been a breach of mandatory procedural rules culminating in the compilation and transmission of the Record of Appeal in this case.

In the Respondents Written Address settled by H.U. Lanase, Esq., the following sole issue was formulated for determination:
“Whether this Honourable Court should grant the Applicant’s application by setting aside the Ruling delivered on the 5th of July, 2018 in restoring this appeal.”

Upon a consideration of the two issues formulated on behalf of the Applicants and the sole issue formulated by learned Counsel to the Respondents, I am of the view that the following issue will suffice:
Whether upon a consideration of the facts culminating in this application and the state of the law, this Court ought to grant the instant Application as prayed.

When this application came up before

us for hearing on the 16th of September, 2020, learned Counsel to the 1st-3rd Respondents/Applicants Babatunde Oshilaja adopted the Written Address he filed on behalf of the Applicants as his oral submissions in urging us to grant the reliefs sought. He also urged us to strike out paragraphs 5, 6(1), 9, 10 and 11 of the Appellants/Respondents’ Counter Affidavit for offending the provisions of Sections 113 and 114 of the Evidence Act. He craved in aid of his submission the case of BUHARI VS INEC (2008) 2 NWLR (Pt. 1078)546.

Learned Counsel to the Appellants/Respondents, Mrs. F.O. Akereonye adopted the Written Address filed in support of the Counter Affidavit of the Respondents and urged us to dismiss this application as this Court has no jurisdiction to sit on appeal over its Ruling delivered on 5th of July 2018.

and re-sworn by the leave of the Court, on such terms as to time, costs or otherwise seem reasonable.”

I have gone through paragraphs 5, 6(1), 9, 10 and 11 of the Counter Affidavit filed on behalf of the Respondent and I cannot see how they offend the provisions of Sections 113 and 114 of the Evidence Act. It was duly sworn before one Joseph Udoh, a Registrar of this Court. Learned Counsel to the Respondents failed to point out any defect in the Counter Affidavit. It is trite that it is not part of the duties of a Court to bridge the gap in the case of parties. To do so will be tantamount to descending into the arena of conflict. See AJUWON VS AKANI (1993) 9 NWLR (Pt. 316)182; SUBERU VS STATE (2010) 8 NWLR (Pt. 1197) 586 and AGBITI VS NIGERIAN NAVY (2011) 4 NWLR (Pt. 1236)175. To accede to the request of learned Counsel would be going outside the constitutional duties of a Court. I would not do that.

I find no reason to strike out any of the paragraphs in the Counter Affidavit. The objection of Applicant’s Counsel to the depositions in the Counter Affidavit is overruled and all arguments thereto are discountenanced by me.

Now, to the arguments of Counsel in the Motion. Learned Counsel to the Applicants submitted that the Appellants misled the Court by failing to disclose all facts to it at the time of hearing the motion to restore the appeal. It is his contention that the Appellant failed to give good and substantial reason to justify the grant of the application and that if the Court was seised of all facts it would have arrived at a different decision. He called in aid of his submission the cases of WILLIAMS VS HOPE RISING VOLUNTARY FRIENDS SOCIETY (1982) 1-2 SC 145; BENSON VS NIG. AGIP OIL CP (1982) 5 SC and OLATUNBOSUN VS TEXACO (NIG) PLC (2012) 14 NWLR (Pt. 1319)200.

He submitted further that the order of this Court made on 5th of July 2018 was made without jurisdiction and that this Court has jurisdiction to set it aside. He highlighted the circumstances under which a Court may set aside its Judgment which are:
1) when the judgment is obtained by fraud or deceit
2) when the judgment is a nullity such as when the Court itself was not competent
3) when the Court was misled into giving Judgment under a mistaken belief that the parties had consented to it, or

4) where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

He submitted that the decision of the Court made on 5th July 2018 is caught by circumstances (1)-(4) above and this being so this Court has not become functus officio and may set aside the order. He relied on the cases of INTEGRATED BUILDERS VS DOMZAQ VENT (NIG) LTD(2005) 2 NWLR (PT. 909)97, MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, SOLANKE VS SOMEFUN (1974) 1 SC 141, OYEBIMPE APINKE & ORS VS T.A ADESANWO (1962) WNLR 339 and a host of other cases in urging us to hold that there is merit in this application and grant same.

For his part, learned Counsel to the Appellants/Respondents after giving a background of the facts leading to this application submitted that this Court considered the entire circumstances of the Appellants and was satisfied they had shown sufficient cause to justify the exercise of its discretion in their favour. He referred to the Ruling of this Court delivered on 5th of July 2018 which the Applicant seeks to set aside as well as the cases of INDEPENDENT TELEVISION/RADIO VS EDO STATE BOARD OF INTERNAL REVENUE

(2014) ALL FWLR (Pt. 759) 1144; MTN (NIG) COMMUNICATIONS LTD VS ALUKO (2014) ALL FWLR (Pt. 732) 1701 and ADEWUMI VS ADEBEST TELECOMS (NIG) LTD (2013) ALL FWLR (Pt. 703)1954.

He argued further that by its Ruling delivered on 5th July 2018 this Court has become functus officio in respect of the validity of the Record transmitted to this Court in the appeal in question. He craved in aid of his submission the cases of NGERE VS. OKURUKET XIV (2017) ALL FWLR (Pt. 882)1302, NIGERIA ARMY VS. IYELA (2008) 18 NWLR (Pt. 1118)115, ALOR VS. NGENE (2007) ALL FWLR (Pt. 362) 836 and DINGYADI VS. INEC (2011) ALL FWLR (Pt. 581)1426. He finally urged us to dismiss the application.

Order 8 Rules 18 and 20 of the Court of Appeal Rules 2011 provide as follows:
“18. If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the Court to dismiss the appeal.
20. An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that this appeal be restored and any such

application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
The above quoted Rule 20 of Order 8 gives this Court the discretion to relist or restore an appeal dismissed for failure to compile Record of Appeal where the Applicant shows good or sufficient cause. See GOVERNOR OF ZAMFARA STATE VS. GYALANGE (2013) 8 NWLR (Pt. 1357) 462, OLOWU VS. ABOLORE (1993) 5 NWLR (1993) 5 NWLR (Pt. 293)255 and NIGERIA POSTAL SERVICE VS. IDIOHO (2013) LPELR 20820(CA).
This Court, in exercise of its discretionary powers under Order 8 Rule 20 (supra) restored the appeal that was dismissed for failure to transmit the Record within time. See the Ruling of this Court delivered in APPEAL NO: CA/IB/M.31/2014 on 5th day of July, 2018 (Exhibit W.A.A.) exhibited to this application.
By the instant application, the 1st-3rd Respondents/Applicants challenge the exercise of the discretionary powers of this Court. They contend the discretion was wrongly exercised in the Ruling of 5th July 2018 and urge us to review the decision reached and set same aside.

any proceeding where any of the following conditions are shown to exist:
a) When the Judgment is obtained by fraud.
b) When the Judgment is a nullity such as when the Court itself is not competent.
c) When the Court was misled into giving Judgment under a mistaken belief that the parties have consented to it.
d) When the Judgment was given without jurisdiction.
e) Where the procedure adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication.
See EDE VS. MBA (2011) 18 NWLR (Pt. 1278) 236; MICHAEL VS. BANK OF THE NORTH (2015) 12 NWLR (Pt. 1473) 370; MARK VS. EKE (2004) 5 NWLR (Pt. 865) 54 and EZEOKAFOR VS. EZEILO (1999) 9 NWLR (Pt. 619)513.
Where an Applicant in an application to set aside the Judgment of a Court is able to establish the existence of any of the above conditions, the inherent jurisdiction of a Court to set aside its Judgment may be successfully invoked. Where none of the conditions is proved to exist the application fails.
It is the contention of the Applicants that the Ruling of this Court they seek to set aside was obtained by fraud and that the Court was misled

to give the decision. They argue that the Record of Appeal was not compiled and transmitted in accordance with the provisions of the Rules of this Court and also that good and sufficient cause was not disclosed to support the decision to restore the appeal.
This Court, at pages 8-9 of its Ruling delivered on 5th of July 2018 (Exhibit W.A.A.) Tsammani, JCA held as follows:
“In the instant case, the Applicants have deposed to the difficulties they encountered in the Registry of the Lower Court in the process of the compilation and transmission of the Record of Appeal to this Court. They have also annexed the Petitions they were forced by the circumstance to write to the Chief Registrar and Chief Judge of Ogun State due to the difficulties they faced. Those facts have in no way been controverted by the Respondents by their Counter-Affidavit and Further-Counter Affidavit. There is evidence that, when the Appeal was dismissed on 22/01/2014, the Record of Appeal had been compiled and transmitted to this Court, and given Appeal No: CA/I/334/2013. This fact was not controverted by the Respondents. The Respondents’ only complaint is that, the said

Record is not competent, not having been transmitted in accordance with the Rules of this Court. I do not think that is a factor to be taken into consideration, as this Court also has the discretion to order that the Record of Appeal be consequentially deemed as having been duly transmitted and served. On the whole therefore, I am of the view that this Application has merit.”
It is obvious from the above that this Court took into consideration the affidavits of parties and came to its conclusion based on uncontroverted facts deposed in support of the application. The Court held that the uncontroverted facts constitute good and sufficient cause to justify the exercise of its discretion in favour of a grant of the application. By that Ruling, this Court had put paid to the issue of Record in Appeal No: CA/I/334/2013. By its decision restoring the dismissed appeal to its cause list, it has become functus officio on the issue.
The phrase “functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. It is settled law that once

a Court has taken a final decision on a matter it cannot re-open or revisit it except under certain conditions. See INTEGRATED REALTY LIMITED VS. ODOFIN (2018) 3 NWLR (Pt. 1606) 301; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (Pt. 1216) 247 and WARRI REFINING AND PETROCHEMICAL CO. LIMITED VS. GECMEP (NIG) LTD (2020) 10 NWLR (PT. 1731)36.
The decision of this Court to restore the dismissed appeal to its list on 5th July 2018 is a final decision on that issue. By its Order restoring the appeal and curing the defect in the Record of Appeal vide a deeming Order, it has become functus officio on the issue of the validity of the appeal. It cannot revisit it or review it. None of the conditions to justify such review has been shown by the Applicants to exist and I cannot find any.

It is premised on the foregoing that I hold that this application is completely devoid of merit and time wasting and deserve to be dismissed. It is accordingly dismissed. The Applicants shall pay to the Appellants/Respondents Fifty Thousand Naira (N50,000.00) costs.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned

brother FOLASADE OJO AYODEJI J.C.A just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance, the Ruling delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

On the 22/01/2014, this Court dismissed the Appellants’/Respondents’ Appeal for failure to compile and transmit record of appeal. However, the Appellants/Respondents filed an application on the 29/01/2014 seeking that the appeal be restored/relisted. In a Ruling delivered on the 05/7/2018, this Court ordered that the appeal be relisted. The Respondents/Applicants have now applied that the order of the Court restoring the appeal be set aside on the grounds enumerated on the Motion paper. It is not in doubt that any Court has the power and inherent jurisdiction to set aside its own decision which was given under fraud; or is a nullity, or is one that was given without jurisdiction.
It is therefore apparent from the authorities that a person affected by an order of Court can apply to have such order or

decision set aside ex debito justitiae where such a decision is a nullity in that it was affected by fraud, misrepresentation, or want of jurisdiction. See Cash Affairs Finance Ltd Anor v. Inland Bank (Nig) Plc (2000) 5 NWLR (pt.656) 568 at 582. However, the Court cannot set aside its own decision merely because the correct procedure was not followed unless it can be shown that serious miscarriage of justice was occasioned thereby. See Akeredolu v. Akinremi (1989) 3 NWLR (pt. 108) 175; Obiageli v. F.C.E, Zaria & Ors (2014) LPELR-24010 (CA). In the instant case, the Applicant was not able to establish any of the circumstances under which we could exercise our jurisdiction to set aside our decision relisting the appeal.
I therefore agree with my learned brother that the application is without merit. It is accordingly dismissed.
I abide with the order on costs.

Appearances:

O. AKENROYE (MISS) For Appellant(s)

BABATUNDE OSHILAJA with him, ABIOLA H. ADETOLA (MRS) for the 1ST – 3RD RESPONDENTS
4TH RESPONDENT ABSENT For Respondent(s)