OMOLEKE OGUNSANYA V. ALHAJI AKANDE
(2010)LCN/3587(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of February, 2010
CA/I/217/08
RATIO
APPEAL: WHETHER THE APPEAL COURT CAN REVIVE A DISMISSED APPEAL UNDER ORDER 17 RULE 10
The law is, once an appeal is dismissed under Order 17 Rule 10 of the Court of Appeal Rules, 2007, this court does not have the power to revive the appeal by re-entering or relisting same, see KRAUS THOMPSON ORG. V. NIPSS (Supra) and BABAYAGI V. ALHAJI BIDA (1998) 2 NWLR (PT.538) 367. PER CHIDI NWAOMA UWA, J.C.A.
PROCESS: MEANING OF ABUSE OF COURT PROCESS
In the case of ARUBO V. AIYELERI (1993) 3 NWLR (PT.280) 126 the abuse of court process was defined thus:
‘Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice.’ PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OMOLEKE OGUNSANYA Appellant(s)
AND
ALHAJI AKANDE Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): In a motion dated 22nd June, 2009 and filed the same day the applicant prayed for the following relief:
‘AN ORDER setting aside the ruling of this Honourable court delivered on 15th June, 2009 in Appeal No: CA/I/217/08.
And for such further order(s) as this Honourable court may deem fit to make in the circumstance.’
The application was supported by a twenty two (22) paragraph; affidavit deposed by Taiwo Lukman a legal practitioner in the chambers of Lana, Aladeniyi & Co, solicitors to the Appellant/Applicant. Attached to the supporting affidavit is Exhibit ‘A’, a Hearing Notice dated 11th May, 2009, issued in respect of CA/I/217/0B fixing the case for Monday 15th day of June, 2009. Also relied upon is a further affidavit of ten (10) paragraphs. Attached to the further affidavit are Exhibits B and B1, a motion on Notice dated 7/5/09 filed the same day with its supporting affidavit and a receipt for filing, respectively, referred to in paragraph 7 of the further affidavit.
While arguing the application, the learned counsel to the Appellant/Applicant F. B. Aladeniyi (Mrs.) submitted that the application was brought pursuant to Order 19 Rules (1) & (2), even though this was not reflected on the motion paper, but moved the court under the inherent jurisdiction of this court to set aside the Ruling of this court as reflected in the relief sought, the appeal having been dismissed by this court under Order 17 Rule 10 of the Rules of this court, 2007 on 15/6/09.
The learned applicant’s counsel blamed the dismissal on the different numbers given to the appeal. Reference was made to Exhibit ‘A’ and paragraph 19 of the affidavit and paragraphs 7 and 8 of the further affidavit. It was argued that the court was misled by the Registry that gave the main appeal and the motion different numbers which caused the dismissal. We were urged to exercise our discretion and set aside the Ruling dismissing the appeal and restore the appeal, as it was not a judgment given on the merits. Reliance was placed on the cases of UKACHUKWU V. UBA (2006) ALL FWLR PT.300 P.1736 AT 1750-1751. PARAGRAPHS F-E; OTUOKE V. PHILIPS (2000) FWLR PT.20, P.762 AT 765. PARAGRAPHS F-G.
Further, that the court should not suffer a litigant for the mistake of the Registry, the case of DUKE V. AKPABUYO L.G. (2006) ALL FWLR PT.294 P.559 AT 576 PARAGRAPH B was cited and relied upon. We were urged to restore the appeal.
Even though the learned counsel O. Tiwo – Adefokun (Mrs.) on behalf of the Respondent filed a counter affidavit of eleven (11) paragraphs, she objected to the application on two grounds. Firstly; it was argued that this appeal was dismissed under Order 17 Rule 10 of the Court of Appeal Rules, 2007, that is, failure to file brief of argument. Further, that at the time the appeal was dismissed there was no brief before the court and no application for extension of time. It was submitted that this court cannot reverse the order of dismissal; the following cases were cited and relied upon. KRAUS THOMPSON V. NIPSS (2004) ALL FWLR (PT.218) D.797 AT 808, PARAGRAPH D and FIRST BANK OF NIGERIA V. CSA INDUSTRIES (2997) ALL FWLR PT.352, P.17-19 AT P.1745 PARAGRAPH A.
Secondly, that the applicant filed a Notice of Appeal against the Ruling of 15/6/09 on 16/6/09, it is the same Ruling that this application seeks to set aside. Reference was made to the motion dated 16/6/09 filed on the same day. It was argued that the motion shows that there is an appeal against the Ruling of 15/6/09, the said motion is for stay of execution and injunction pending the determination of the Appeal lodged at the supreme court which learned counsel to the Respondent submitted is an abuse of court process, which ought not to be tolerated and referred to the case of ANTHONY VILLAGE COMMUNITY BANK V. OBIKOYA (2000) FWLR PT.25 P.1588 AT P.1590 PARAGRAPHS D-G, also OKOREAFFIA VS. AGWU (2008) ALL FWLR PT.445 P.1601 AT 1623, A-B. We were urged to refuse the application and strike out the motion to set aside the Ruling of this court, reference was made to Order 19 Rule 5 and it was argued that this rule does not give the court the power as urged by the appellant.
In reply on points of law, Mrs. Aladeniyi urged us to do substantial justice and that over reliance on technicality or mistake should not take the place of seeing the enthronement of justice, reliance was placed on the case of DUKE V. AKPABUYO (Supra) P.570 PARAGRAPHS G-H. It was finally argued that this court would only become functus officio when the Ruling complained of has been drawn up or enrolled. Referred to be the case of UKACHUKWU V. UBA (Supra) P.1749, PARAGRAPHS D-H, we were urged to allow the application.
I will consider first the objection to the application before the merit of same if need be. The first ground of objection is that the appeal having been dismissed under Order 17 Rule 10 of the Rules of this court, 2007 for failure to file the Appellant/Applicant’s brief of argument, this court cannot reverse the order of dismissal by setting aside the order of this court made on 15/6/09. No doubt, the order/decision of 15/6/09 was a definite and final decision, what the applicant now seeks is for this court to sit on appeal over its decision of 15/6/09 dismissing the appeal for want of diligent prosecution, this we cannot do. The law is, once an appeal is dismissed under Order 17 Rule 10 of the Court of Appeal Rules, 2007, this court does not have the power to revive the appeal by re-entering or relisting same, see KRAUS THOMPSON ORG. V. NIPSS (Supra) and BABAYAGI V. ALHAJI BIDA (1998) 2 NWLR (PT.538) 367. In the present case, the situation is even worse in that this court had become functus officio to entertain the present application to consider the sole prayer to set aside our earlier decision.
Our Rules of court does not permit this. Order 18, Rule 4 of the Court of Appeal Rules, 2007, is clear, it provides:- Order 18 Rule 4:
‘4. 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.’
In the present application, we were urged to set aside our earlier ruling of 15/6/09, the above rule precludes us from reviewing our decision, which is what is prayed in urging this court to set aside the said ruling, as rightly argued by the learned counsel to the Respondent. The ruling of 15/6/09 was final for all purposes. The present application does not fall under any of the exceptions in Order 18 Rule 4, like correcting clerical mistakes or error arising from any accidental slip or omission and as enumerated in the above Rule.
I am not yet aware in our Rules of court of any provision that gives this court (except as provided above) any extended power to revisit its earlier decision. See our earlier Ruling in this division in PROFESSOR EMMANUEL O. AKINBOADE & ANOR VS. OTUNBA CHRISTOPHER ADEBAYO ALAO AKALA & ANOR CA/EPT/GOV.55/08 (unreported) delivered on 14th December, 2009.
The learned applicant’s counsel had blamed the dismissal on the Registry that is said to have given different numbers to the appeal, deposed in paragraph 19 of the supporting affidavit, it is a pity we cannot look into the reason or who is to blame for the dismissal.
The learned Respondent’s counsel submitted that the applicant filed a Notice of Appeal against the Ruling of 15/6/09 on 16/6/09, same date as a motion dated and filed the same 16/6/09 for stay of execution of the judgment of the High Court, Ibadan and an order of injunction restraining the Respondent from disturbing the status quo pending the determination of the Appeal lodged in the Supreme Court. It is trite that the court is free to look into its records. The motion dated and filed by the present Applicant dated and filed on 16/6/09 referred to by the learned Respondent’s counsel is in the case file, and is headed thus:
‘MOTION ON NOTICE PENDING THE DETERMINATION OF THE MAIN APPEAL AT THE SUPREME COURT’
I will hereunder reproduce paragraphs 26, 27 and 28 of the supporting affidavit to the motion of 16/6/09.
’26. That I am not satisfied by the decision of the Court of Appeal and I have filed Notice of Appeal to the Supreme Court, copy of which is before this Honourable court.
27. That my counsel, Lukman Taiwo Esq. informed me and I verify believe that if this application is not granted, my appeal will be rendered nugatory.
28. That my counsel, Lukman Taiwo Esq. informed me and I verily believe that the facts and circumstances of this case should create an exceptional circumstance to grant an order of injunction restraining the Plaintiff/Respondent from disturbing the status quo pending the determination of the appeal filed before the Supreme Court.’ (Underlining mine for emphasis).
From the above depositions, the applicant has filed an Appeal against the same Ruling of 15/6/09 as reflected in the motion filed on 16/6/09. With this court being aware of the appeal against the earlier Ruling pending before the Supreme Court, can this same court consider the merit or otherwise of the present application? I think not. As rightly argued by the learned counsel to the Respondent, it would amount to an abuse of court process.
It is clear that as at the date the present application was filed on 22/6/09 and moved on 21/1/10 the applicant had before then appealed against the Ruling of 15/6/09. There is nothing to show in the affidavit and further affidavit in support of the application that the said appeal has been withdrawn. Going into the merits or otherwise of the application would be tolerating a flagrant abuse of court process. In the case of ARUBO V. AIYELERI (1993) 3 NWLR (PT.280) 126 the abuse of court process was defined thus:
‘Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice.’
In the present case, the appellant/applicant has rightly and properly exercised his constitutional right of appeal to the Supreme Court which would not be viewed as done to irritate or annoy the Respondent but, it is clearly wrong for the appellant/applicant who promptly appealed against the Ruling of 15/6/09 to the Supreme Court, instead of awaiting the outcome of the said appeal, the same party brought the present application for this court to set aside the same ruling appealed against.
It is certainly not proper and would irritate and annoy the Respondent. I am duty bound to discourage an abuse of the process of this court. See the cases of EXPO LTD. V. PAFAB ENTERPRISES LTD. (1999) 2 NWLR (PT.951) 449, ADESANOYE V. ADEWOLE (2000)11 WRN 138; 9 NWLR (PT.671) SARAKI V. KOTOYE (1992) 9 NWLR (PT.264) 156 & OKORODUDU V. OKOROMADU (1977) 3 S.C. 21 and MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT.583) 108.
In the circumstance, I am of the view and satisfied that the present application to set aside the ruling of this court delivered on 15/6/09 in Appeal NO.CA/217/08 is an abuse of process, and this court has the power and is duty bound to dismiss the application. See AKPUNONU V. BAKAERT OVERSEAS (1995) 5 NWLR (PT.393) 42. This court has the inherent power to prevent an abuse of its process and I so hold.
In the final analysis, I hold that the application is an abuse of court process, same is hereby dismissed. I award costs of N20,000.00 to the Respondent.
SIDI DAUDA BAGE, J.CA,: I have had the preview of the Ruling just delivered by my learned brother, C. N. Uwa, J.C.A.
I agree with the reasoning and conclusions reached. I adopt same as mine; the application fails for lacking in merit and same is dismissed by me. I abide by the order made in respect of Costs.
MODUPE FASANMI, J.C.A: I have read before now the ruling just delivered by my learned brother C.N. UWA, J.C.A.
I entirely agree with the reasonings and conclusions reached therein.
The application is an abuse of court process and same is accordingly dismissed by me. I abide with the order as to costs.
Appearances
F. B. Aladeniyi (Mrs)For Appellant
AND
O. Tiwo-Adefokun (Mrs)For Respondent
