WOMENE ZUOKEMEFA JP. v. OBIPAN COMPANY LTD. & ANOR.
(2010)LCN/3854(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of June, 2010
CA/PH/523/2008
RATIO
PLEADINGS: EFFECT OF UNDENIED PLEADINGS
It is a principle of pleadings that which is not denied is deemed admitted. If a counter-claimant filed a statement of claim and the other party or defendant to the counter claim failed to file or refused to file a statement of defence in answer thereto, the defendant counter-claimant will be deemed to have admitted the counter-claimant statement, and thus leaving the trial judge or court with the authority to peremptorily enter judgment for the counter-claimant without even hearing any other evidence see the Supreme Court decision in Oke v. Aiyedun (1986) NSCC 471; (1986) 2 NWLR (Pt. 23) 549. PER ISTIFANUS THOMAS, J.C.A.
PROCEDURE: ESSENCE OF HEARING NOTICE
The essence of hearing notice is for the party or parties to be aware of the date their matter was adjourned to by the court and for them to arrange to be present, if they want, at the adjourned date. A party represented by counsel is deemed to be aware of the adjourned date if the counsel representing him is aware of the adjourned date. PER EJEMBI EKO, J.C.A.
COURT: DUTY OF A TRIAL JUDGE NOT TO FRUSTRATE HIS OWN JUDGMENT
It is the law that a trial Judge should not frustrate his own judgment or create that impression that he can, subsequently, frustrate his own positive and direct orders: A.C.B v. EHIEMUA (1978) 2 SC 73. PER EJEMBI EKO, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
EJEMBE EKO Justice of The Court of Appeal of Nigeria
Between
WOMENE ZUOKEMEFA JP. – Appellant(s)
AND
1. OBIPAN COY LTD.
2. CHIEF GODWIN O. PANAMA(Substituted by Henry O. Panama) – Respondent(s)
ISTIFANUS THOMAS, J.C.A.(Delivering the Leading Judgment): The appeal is against the ruling of Hon. Justice Iyayi Lamikaran High Court of Justice, Port Harcourt which was delivered on 1-2-03-2008 between the same parties.
The brief facts of the case at the lower court are that the claimant now simply to be referred as the appellant, claimed against the defendant now respondents as follows:
“1. Declaration that a loan between the defendants and the claimant is null and void on the grounds that it failed to comply with the rules and normal procedures for loan transaction and agreement.
2. An order of court setting aside the purported loan agreement and transaction on grounds of illegality, irregularity and deceit.
3. An order compelling the defendants to return the original document belonging for the claimant.
4. An order of perpetual injunction restraining the defendants from either selling the claimant’s building, the subject matter of the loan, lying and situate at No. 20 Bernard Carr street, Port Harcourt, which was used as collateral or intimidating or harassing the claimant in regard thereto”
5. The sum of N2, 000,000.00 (Two million Naira) being general damages for breach of Agreement.”
During the course of Proceedings the present respondents filed an amended statement of defence and counter claim, in which they sought a declaration that the transaction between them and the appellant was a sale transaction over the premises in dispute in which the appellant’s documents of title were willingly handed over to the respondents. That the documents were duly executed in favour of the respondents. The further case of the respondents at the lower court is that they took possession of the premises and all tenants therein were to be introduced to the 2nd respondent with a view of paying him the rent, (appellant inclusive) because he was occupying part of the property in dispute, and that the appellant infact did pay the rent to the 2nd respondent. In a nutshell, the respondents counter-claim against the appellant was as follows:-
1. A declaration that the 2nd defendant (2nd respondent) is the person entitled to the right of occupancy in and over the property known as No. 20 Bernard Carr Street, Port Harcourt.
2. N500, 000.00 as damages for trespass.
3. N4, 580,000.00 as loss of rent.
At the lower court’s proceedings, the appellant in his effort to establish his case, testified as CW1 but called no other witness to proof his claim. His sole evidence as contained at pages 109-115 of the record is that the respondent granted him numerous loans which totaled N6, 900.000.00 (six million nine hundred thousand naira) and that he was pressurized to sign the premises documents in connection to the loan transaction. It is on record at page 145 of the record that the appellant who first testified on 17-02 -2005 did not complete his evidence for even cross-examination because he stopped coming to court without reasonable explanation. After several adjournments, and after hearing the respondents’ application, the appellant’s case at the lower court was struck out. It is instructive to note that when the claimant/appellant failed to appear to prove his claim, his learned counsel, Chief J.O. Nwachukwu appeared continually on all adjourned dates totaling 6 adjournments and on 27-11-2006 learned counsel informed the court that he could not communicate with his clients as the claimant/appellant was not in court and he had not been able to reach him, The matter was adjourned to 13-12-06 and the trial court made it abundantly clear that, that was the last adjournment. On that adjourned date the appellant and his counsel did not appear nor gave any reason for heir(sic) absence, hence the appellants case was struck out for want of diligent prosecution with costs of N5000 before filing an application for relisting which was never complied with.
On the part of the respondents who were counter-claimants, two witnesses testified to prove their case. The lower court gave them a judgment in their favour that reads as follows:
“1. That the 2nd defendant/counter claimant Mr. Henry O. Panama is the beneficial owner and the person entitled to the statutory Right of Occupancy in respect of all that property known as and located at No. 20 Bernard Carr Street, Port Harcourt.
2. The claimant is to pay cost of N50, 000.00 in favour of the defendant/counter claimants.”
On hearing that his suit was struck out while the counter/claimants had secured a judgment in their favour, the appellant applied at the lower court for the suit to be relisted including the counter-claim. The lower court refused to relist on the ground that the matter was heard on merit and therefore functus officio. Hence the appeal which was filed on 26-3-2008 containing 3 grounds of appeal from which his counsel has distilled 2 issues for determination that read as follows:-
“l. Whether in view of the provisions of order 30 rules 4 of the Rules of the High Court the learned judge was right in declining jurisdiction to determine the application to relist the suit struck out and to set aside the default judgment on the grounds of being functus officio.
2. Whether the appellant was given fair hearing when he was not served with hearing notice when his suit was struck out and the judgment of the counter claim be valid.”
On the part of the respondents they have raised issues that read as follows:
“A was the learned trial judge right in declining jurisdiction to hear the application to relist the suit struck out and also refusing to set aside the judgment on the counter claim (grounds 1 & 2).
B. Was the appellant given a fair hearing (grounds 3).”
In determining the parties issues raised, there is no doubt in my mind that their respective two issues quoted above are closely interwoven or interrelated and therefore the issues will be treated together.
The appellant is of the view that by virtue of order 30 rule 4 (1) (2) and (3) of the Rules of High court of Rivers State, 1987, the lower court had the competence and jurisdiction to relist the suit struck out which the trial judge refused to do on the ground that he was functus officio.
The appellant has contended that it was wrong for the trial judge to refuse the application for relistment of the suit which was on merit and relied on the case of U.T.C. (Nig) Ltd v. Pamotel (1989) 2 NWLR (Pt. 103) 244 in which Oputa. JSC, at page 284 had said that “a judgment is said to be on merit when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on merit is therefore a Judgment that determines, on an issue, either of law or fact which party is right”
Learned counsel for the appellant, further referred to the decision of the same philosophical jurist, Oputa, JSC at pages 294, 295, of the U.T.C. v. Pamote (supra) and then urged the court to hold that the trial judge was wrong to have declined jurisdiction to determine the application for relisting of the appellants suit, and he urged us to resolve the first issue in his favour.
The appellant’s issue, 2 is complaining that the trial court failed to issue hearing notice on the appellant before striking out the suit and giving judgment to the respondents on their counter-claim. Counsel is of the view that the trial court ought to have ordered the issuance and service of hearing notice on the appellant before striking out the suit and before proceeding to the hearing of the counter-claim.
Appellant has relied on the decision of SADU v. Mahmood(1998) 2 NWLR (pt.536) 130 at 138-139 and Sasegbon’s Laws of Nigeria, vol.17 part 11 page 1032 para 2291.
Appeliant further argued that it has been held that the failure to notify a party of the date filed for hearing of his matter is a fundamental omission which entitles him to have an order setting aside the judgment on the ground that the condition precedent to the exercise of jurisdiction had not been fulfilled, and relied on the decision in Emmakpor v. Ukavbe (1975) 9 NSCC 435 Learned counsel further submitted that, failure to cause hearing notice to be served on the appellant was an infringement of his fundamental fair hearing, as provided for in Section 36 of the Constitution 1999, and that it renders the order and judgment as a nullity and liable to be struck out, and relied on the authority in Credit Alliance Finance service Ltd v. Mallah (1998) 10 NWLR (Pt 569) 341, at 350-357, and Uslkaro v. Itsekiri (1991) 22 NSCC (Pt. 1) 281. The appellant has asked this court to allow the appeal and send back the case to the lower court to hear the suit in the counter-claim on merit.
In response, learned counsel for the respondent is of the considered view, that, the refusal of the lower court to hear and determine this application to relist, was base on the facts and circumstance of the case, and submitted that it is trite law that once a court has determined a case and pronounced final judgment, it becomes funtus officio and relied on the case of Kaduna iles Ltd v. Obi (19199) 10 NWLR (Pt.621) 138. Counsel further submitted that the appellant’s case which was struck out on 13-12-2006 amounted to dismissal because, the appellant had to all intents and purposes on his own volition, discontinued his case after testifying only in chief. That at that stage, the lower court had a duty to look at the evidence so far led to see if it could sustain the suit. Counsel then contended that looking at the case at the lower court, the evidence led, by the appellant before he discontinued and therefore abandoned his case has shown that :-
(i) He tendered no document to show that the transaction was a loan agreement as he pleaded.
(ii) He willingly surrendered all his original documents to the respondents.
(iii) He gave a receipt to show purchase of the property by the respondents.
(iv) He signed documents to evidence the sale
(v) He paid rents to the respondents.
Learned counsel for the respondents has urged this court to carefully evaluate the appellant’s evidence which will reveal that his case was extremely weak and unlikely to succeed, and therefore to hold that it was right for the trial judge who declined to relist. On the argument that the striking out of the suit was tantamount to dismissal, counsel referred to the cases of Registered Trustees Ifeloju v. Kuku (1991) 5 NWLR (Pt.189) 65; Eronimi v. Iheuko (1989) 2 NWLR (Pt. 101) 46.
On setting aside a judgment and relist the suit, learned counsel is of the view, that certain conditions must be fulfilled before setting aside, and referred to the cases of Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; NNSC v. E.S.V. (1990) 7 NWLR (Pt.124) 526.
The respondents have also argued that the appellant was in total delay and contempt of the trial court when he abandoned his case and did not even have the courtesy to inform his counsel as to his where about, and relied on the case of Muhammed v. Kpelai (2001) FWLR (Pt. 69) 1404; Williams v. Hope Rising (supra) and urged the court to hold, that the conditions precedent to be fulfilled by the appellant before the judgment could be set aside and the case relisted, were not present in the instant case.
Counsel for the respondent referred to the record of appeal and pin pointed out the numerous appearances of the appellant on which he testified and then later abandoned his case and his counsel. The respondents urged this court, to dismiss the appeal affirm the decision of the lower court declined to relist the suit of the appellant and also refused to set aside the decision of the respondents, counter-claim which was in their favour.
I have carefully considered the parties’ briefs and the oral arguments when the appeal was argued. It is not in dispute that the appellant’s main ground of appeal is that he was not duly served a hearing notice before his claim was struck out. The respondent’s counter claim was also heard and determined in his absence. The main finding therefore, is to see why the appellant was absent because it is the position of law that a party who knows the date of the hearing of the case, but fails or refuses to appear on the adjourned date, can not therefore, complain or rely on the matter of fair hearing as clearly stated in the decision of Attorney General of Anambra State v. Nwobodo (1992) 7 NWLR (Pt. 256) 711; Nirchandani v. Pinheiro (2001) FWLR (PT.1307) at 1320 Paras F-H.
In the instant appeal, the record has clearly shown at pages 109-115, that the appellant opened his evidence on 17-2-2005 and was adjourned to 28-2-2005, and then to 7-5-2005 on which he continued his evidence in chief . The matter was again adjourned to 12-7-2005 and then to 21-12-2007. In all the above adjournments, the appellant and his counsel were in court but the respondents were absent on 21-12-2005, the case was adjourned to 23-3-2006 for cross-examination, but both parties were absent. The matter was adjourned to 8-5-2006, and on that date, it was further adjourned to 15-6-2006. All this time, appellant and his counsel were in the court, and it was known to the appellant and his counsel that, there was a motion to amend the counter-claim, and the appellant filed a counter affidavit to the motion to amend and file the counter claim as contained on pages 115 to 116 of the record. On 19-10- 2006, the trial court ruled on the respondent’s motion seeking leave to amend the statement of defence and to file the counter clam. The ruling was in favour of the applicants, namely, the present respondents. Learned counsel for the appellant was in court on that date. It is therefore, not in doubt that, the appellant through his counsel, was served with the respondents counter-claim, and as from 19-10-2006, the appellant had limited time to file defence to the counter claim of the respondents as his counsel was on that date in court and the matter was adjourned to 27/22/2006 for continuation. On the adjourned date the appellant for the second time was conspicuously absent, but his counsel was in the court on that date, and his counsel made the following order:-
“I do not know why the claimant (appellant) is not in court and he has not been able to reach him. He applies for an adjournment.”
The record at page 119 has shown that learned counsel for the respondents had no opposition for the adjournment but asked that let that be the last adjournment. The learned trial judge then adjourned the matter and made a final order thus:-
“I am indeed to grant one last adjournment in this case for the last time. Case is adjourned to 13-12-2006 for continuation and for the last time.”
(Underlined is for emphasis)
On the 13-12-2006, the counsel for the appellant was also conspicuously absent, therefore in law, he was aware of the adjourned dates and therefore there was no need to serve the claimant/appellant or his counsel hearing notice. The learned trial judge had already made an order on 27- 11- 2006 that that was the last adjourned date. His Lordship heard on 13-12-06 an oral application to strike out the appellant’s claim or suit as himself and his counsel were no more coming to court. On page 119 of the record, the trial judge ruled as follow:-
“Court:- It seems the claimant is no longer interested in prosecuting this case. Claimant’s counsel on the last adjourned date told the court that he does not know why claimant has not been coming to court. Application of learned counsel for the defendants is therefore proper. Case is struck out for want of diligent prosecution. The claimant is to pay a fine of N5000.00 before filling application to relist” (Underlined is mine for emphasis)
From the above ruling, the trial court was more than willing to salvage the appellant’s suit, but it placed a simple condition precedent before seeking leave to re-list;-
1. Appellant had to show serious act to prosecute his case by avoiding lacking of diligent prosecutions. In other words the application for re-list had to be timeous.
2. The appellant had to pay a fine of N5000.00 before filing application to re-list.
Since the lower court had made condition precedent for an application to re-list, there is need to look at the appellant’s motion filed on 23-11-2007, seeking for an order to relist and to set aside the judgment on the counter-claim entered on 15-10-2007.
The motion and the affidavit in support are contained on pages 160-164 of the record, and also showing exhibit in relation to his alleged arrest and detention for criminal offences. All these exhibits are contained on pages 165-172 of the record.
A careful consideration of the appellant’s affidavit, has shown me that, the application was not filed timeously, because the ruling striking out the suit was made on 13-12-06 while the motion for relist was filed on 23-11-07 thus a span period of 11 months 10 days. The appellant’s motion was surprisingly, not for extension of time to seek leave of court to apply to re-list his case which was struck out almost a year ago. Secondly, the appellants affidavit deposed to by himself had not complied with the orders made, namely to pay a fine of N5000.00 00s before filing the application to relist his case. Orders of court are made to be obeyed. In the instant appeal, the appellant was infact in total disobedience to the lower court. He abandoned his case. He also abandoned his counsel, namely, Mr. J.O. Nwachukwu and Mr. K.I. Moro who could no more know of the where about of their client. Lastly, the appellant flagrantly abused the lower court’s condition precedent, before applying for leave to relist his case.
It is no more in doubt that courts of record have the inherent jurisdictions to set, aside their judgment or decision or order in appropriate cases or under certain circumstance which include when:
(a) the judgment or decision was obtained by fraud or deciept either in the court or of one or more of the parties;
(b) the judgment or decision or order is a nullity;
(c) it is obvious that the court was misled into giving judgment or order under a mistaken belief that the parties consented to it
(d) the judgment or order or decision was given in the absence or lack of jurisdiction.
(e) The courts proceedings adopted was such as to deprive the decision or judgment or order of the character of a legitimate adjudication,
(f) Where there irregularities, see the Supreme Court decisions in Igwe v. Kalu (2002) FWRL (Pt 97) 677 or (2002) 14 NWLR (Pt 787) 436; Ebe v. Ebe (2002) 3 NWLR (Pt 860) NWLR 215; Odofin vs. Olabanji (1996) 3 NWLR (Pt 435) 126 and Tomtee Nigeria Ltd v. F.H.A. (2010) ALL FWLR (Pt 509) 400 at 420-42.
In the instant appeal, none of the six circumstances stated above was involved in the case when the trial judge declined to relist the appellant’s case. I can not find any defect when the learned trial judge declined to grant the application for relisting.
In relation to the appellant’s request to set aside the decision in relation to the respondents counter claim, it is no more in doubt that, learned counsel for the appellant was in court when the respondents filed a motion seeking leave to amend their statement of defence and to file the counterclaim.
This fact is contained at page 116 of the record at lines 1-5. As earlier stated, the appellant filed a counter affidavit which was served on the respondents and it was adjourned to 13-7-06 for adoption of written arguments on 13-7-06, the matter was adjourned to 19/10/06 for ruling since the parties had exchanged their written argument.
Learned counsel (for the appellant) Mr. J.O. Nwachukwu was in court when the ruling was delivered in which the respondent’s counter-claim was deemed duly filed. Since then, the appellant could not file a defence to the counter claim. It is a principle of pleadings that which is not denied is deemed admitted. If a counter-claimant filed a statement of claim and the other party or defendant to the counter claim failed to file or refused to file a statement of defence in answer thereto, the defendant counter-claimant will be deemed to have admitted the counter-claimant statement, and thus leaving the trial judge or court with the authority to peremptorily enter judgment for the counter-claimant with out even hearing any other evidence see the Supreme Court decision in Oke v. Aiyedun (1986) NSCC 471; (1986) 2 NWLR (Pt. 23) 549. In the instant appeal, the appellant failed to file the statement of defence to the respondents counter-claim. In fact the trial judge’s taking evidence from the respondents who filed a counter claim was a waste of the court’s valuable time. His Lordship could have entered judgment in favour of the respondents without calling them to prove their counter-claim, because the appellant had no defence to the counter claim.
Having reached far, I deem it necessary to comment on the appellant’s argument that he could not appear in court to prosecute his case because he was detained in prison. As ably argued by the learned counsel for the respondents, a careful evaluation of the evidence in chief of the appellant has revealed, that, his case was extremely weak, and obviously unlikely to succeed, hence appellant discontinued his case and also abandoned his counsel.
The lower court in his judgment at page 150 of the record had this to say:
“The claimant has in his pleadings suggested that the arrangement between the parties therein was a mere loan agreement, but no evidence is adduced to support this bare assertion.
It is trite law that pleadings do not constitute evidence”
In my considered opinion, the above finding can not be faulted. The appellant’s claim that he was in prison has no effect on his case because he had a team of legal practitioners to prosecute the case. He made it clear that he was not to prosecute the case by himself, but by a legal practitioner he engaged. In the circumstances, it is not correct to say that the appellant was not served with a hearing notice to file the respondents counter-claim. Even if it is correct to say that he was in prison custody, he had the right to see his counsel to defend him in respect of his incarceration. There is nothing to prove that he made effort to see his counsel to prosecute the civil case and the criminal offence for which he was alleged to have been imprisoned. Much as the court has no duty to speculate, but in the instance case, the appellant was some what ashamed about the accusations he was charged, namely sexual act with numerous under aged girls he commanded to prostitute in his hotel. If he was not ashamed, he had the constitutional right to secure a counsel of his choice to defend him, which he failed to do. The magistrate court forms he annexed as the reasons he could not appear in court in respect of his civil care is not convincing. From the date the lower court struck out his case, to the date he was alleged to have been arrested, was a long time enough for him to appear in court to file an application timeously to, relist his case by complying with the orders made on 13-6-06.
In the final analysis, the appeal is unmeritorious and is dismissed by me. I affirm the decision of lower court. Costs of N50, 000.00 in favour of the respondents and against the appellant.
TIJJANI ABDULLAIJI, J.C.A.: I have had the opportunity of reading in advance the lead judgment of my learned brother, THOMAS, JCA and I entirely agree with his reasoning and conclusions arrived thereat. I am also of the same view with His lordship that the appeal is devoid of any merit and should be dismissed. I dismiss it and abide by all the consequential orders including the Order as to costs contained therein.
EJEMBI EKO, J.C.A.: I read in draft the lead judgment of my learned brother ISTIFANUS THOMAS, JCA Just delivered in this appeal. The facts have been succinctly summarized in the said judgment.
The appellant distilled two issues from the three grounds of appeal. The second issue complains of the failure of the trial court to issue and serve hearing notice on the appellant before striking out his suit on 13th December, 2006 for want of diligent prosecution. I will deal with the issue straight away. The essence of hearing notice is for the party or parties to be aware of the date their matter was adjourned to by the court and for them to arrange to be present, if they want, at the adjourned date. A party represented by counsel is deemed to be aware of the adjourned date if the counsel representing him is aware of the adjourned date.
On 27th November, 2006 chief J.O Nwachukwu, the counsel retained by the appellant, as the claimant, at the trial court was in court when the hearing of the appellant’s case was adjourned to 13th December, 2006 with the rider – “and for the last time”. On 13th December, 2006 (page 119 of the Record) neither the appellant nor his counsel was in court. At the instance of the defendant’s, now respondent’s, counsel the appellant’s suit was –
struck out for want of diligent prosecution. The claimant is to pay a fine of N5, 000.00 before filing application to relist.
From the Record, it does not lie in the mouth of the appellant to say that he or his counsel were not aware of the date of 13th December, 2006 to which the matter was adjourned to “for continuation and for the last time”. A party who knew or is aware of the date for trial of is case and who, nonetheless, fails to show up in court on the said date cannot be heard to complain: A.G. ANAMBRA STATE v. NWOBODO (1992) 7 NWLR (pt.256) 711. There is therefore no substance in this second issue. The appeal on it is hereby consequently dismissed.
The trial court made it a condition precedent the payment “of N5, 000.00 before filing application to relist”. There is no evidence that the condition precedent had been fulfilled before he filed the application the subject matter of this appeal. The order remains extant. Orders of court are meant to be obeyed. The general and accepted presumption of law is that a judgment or order of a court of competent jurisdiction is right and remains valid until set aside by an appellate court: ADEOSUN v. BABALOLA (1972) 5 SC 292. Since there is no appeal against the order directing the appellant to pay the sum “of N5,000.00 before filing applications to relist, and the order remaining extant; in the words of Brett, Ag. C.J.F. in WILLIAMS v. SANUSI (1961) 1 ALL NLR 334 at page 337, “it is unquestionably a valid and subsisting (order) in which the appellant is named as one of the persons against whom it is given.” It is on this footing that I will also dismiss the appeal on the first issue.
The appellant’s counsel had argued in his brief under issue 1 that Order 30 Rule 4 of the Rivers State High Court Civil Procedure Rules, 2006 gives the trial court wide discretion to set aside the order striking out the appellant’s suit and to relist the same on cause list.
That is true. But that is an aspect of the matter. The other aspect of the matter is the fact that there was a condition precedent made by the learned trial judge, rightly or wrongly, on 13th December, 2006 for the invocation of Order 30 Rule 4. The order subsists. The appellant’s disobedience of the order also continues. I agree with counsel for the respondent that the appellant was in contempt of the order of the learned trial Judge made on 13th December, 2006 when he filed the application the subject of this appeal without any evidence of his having complied with the said condition precedent.
He submitted further that on authority of OJUKWU v. GOVERNOR & LAGOS STATE (1986 3 NWLR [pt.18] 39; MUHAMMED v. KPELAI (2001) FWLR [pt.69] 1404 that the appellant can not be heard to complain that the trial court refused to hear him or give his application any sympathetic consideration.
It is not in dispute that the learned trial judge made the order of 13th December, 2006 earlier reproduced. The complaint of the appellant is that while dealing with the application the subject of this appeal the learned trial Judge stated that
The orders prayed for by this applicant herein can not be granted by this Court, as this Court can not sit on appeal over its own judgment.
I think the learned trial Judge was justified in this dictum. It is the law that a trial Judge should not frustrate his own judgment or create that impression that he can, subsequently, frustrate his own positive and direct orders: A.C.B v. EHIEMUA (1978) 2 SC 73.
There is also no substance in the first issue formulated and argued in this appeal by the appellant. On the whole the appeal lacks substance. It is hereby dismissed.
I hereby all the consequential orders, including order as to costs, contained in the judgment just delivered by learned brother, ISTIFANUS THOMAS, JCA.
Appearances
Mr. Faye DikioFor Appellant
AND
Mr. S. I. OfoluwaFor Respondent
