HON. LAWAL M. RABIU & ANOR. V. HON. JUMARE TANIMU MAGAJI & ORS.
(2010)LCN/3977(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of July, 2010
CA/K/296/M/2009
RATIO
SETTING ASIDE JUDGMENT: CIRCUMSTANCES UNDER WHICH THE COURT OF APPEAL WILL HAVE THE INHERENT JURISDICTIONAL POWER TO SET ASIDE ITS OWN JUDGEMENT
Cases where the Court of Appeal has the inherent jurisdictional power to set aside its decision, order or judgment which for all intent and purposes are, where it is established, that the decision have been obtained in consequence of some fraudulent misrepresentation by any one of the parties; given without jurisdiction and thus rendered it a nullity, where it has become so obvious that the court was misled into giving same, under a mistaken belief that the parties consented thereto. See ALAKA VS. ADEKUNLE (1959) LLR 76; OLUMESE VS. FALANA (1990) 3 NWLR (Pt. 136) 1, OBIOHA VS. IBERO (1994) 1 NWLR (Pt. 322) 503; ODOFIN VS. OLABANJI (1996) 3 NWLR (Pt 435) 126 AND SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC. PER BABA ALKALI BA’ABA, J.C.A
DOCUMENTARY EVIDENCE: WHETHER AN APPELLATE COURT CAN EXAMINE DOCUMENTARY EVIDENCE AND DRAW THE NECESSARY INFERENCE
It is firmly settled that an appellate court is in as good a position as a trial court, in the admission of documentary evidence. The court can examine an exhibit or exhibits and draw the necessary inference. See the case of GONZEE NIGERIA LTD VS. NIGERIA EDUCATION RESEARCH AND DEVELOPMENT COUNCIL & 2 ORS. (2005) 6 S.C (Pt.1) 75; (2005) ALL FWLR (Pt.274) 235 at 247 – 248. PER BABA ALKALI BA’ABA, J.C.A
PRODUCTION OF DOCUMENT IN COURT: WHETHER A WITNESS CALLED OR SUBPOENED TO COME AND ONLY TENDER A DOCUMENT NEED TO BE SWORN
In the recent case of OGUNTAYO .V. ADELAJA (2009) 15 NWLR (1163) 150, the Supreme Court dealing with a person summoned to produce a document by a court or Tribunal had stated at page 190, paragraph B-D that:- A witness called or subpoened to come and only tender a document needed not be sworn. This is because by virtue of section 193 of the Evidence Act, a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness. PER MOHAMMED LAWAL GARBA J.C.A
JUSTICE
BABA ALKALI BA’ABA justice of The Court of Appeal of Nigeria
MOHAMMED LAWAL GARBA justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO justice of The Court of Appeal of Nigeria
Between
1. HON. LAWAL M. RABIU
2. PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)
AND
1. HON. JUMARE TANIMU MAGAJI
2. ALL NIGERIA PEOPLES PARTY (ANPP)
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
4. THE RETURNING OFFICER, LERE EAST
SAMINAKA CONSTITUENCYRespondent(s)
BABA ALKALI BA’ABA, J.C.A (Delivering the Leading Judgment): The applicant herein by a motion on notice dated the 21st day of December, 2009, filed on the 22nd day of December, 2009, prayed this Court for the following reliefs:-
“1. An order of this Honourable Court setting aside the judgment of this Honourable Court delivered on 1st December, 2009 in the Appeal No. CA/K/EP/SHA/11/08 between Hon. Lawal M. Rabiu & Another Vs. Hon. Jumare Tanimu Magaji & three Others.
2. And for such order or orders as this Honourable Court may deem fit to make in the given circumstances.”
The grounds upon which the application is anchored as reflected on the face of the motion paper, are as follows:-
“1. This Honourable Court as an appellate court admitted the police investigation report earlier rejected by the trial tribunal as Exhibit B1.
2. This Honourable Court having admitted the said police investigation report went ahead to ascribe probative value to same and same weigh heavily in the mind of the court in delivering its
judgment in favour of the Appellants/Respondents.
3. The Respondents/Applicants were never given the opportunity to cross examine the makers of Exhibit ‘B1’ to test the veracity of same and this is more so that in law admissibility is distinguishable from the weight to be attached to a document.
4. There was no hearing on the interlocutory appeal as the Appellants/Respondents did not adopt their brief thereto and same was not deemed argued or adopted as to warrant this Honourable Court admitting the subject matter of the said appeal as exhibit ‘B1′.
5. In the premise of all the foregoing, the instant Respondents/Applicants were denied their right to fair hearing thereby vitiating or rendering void the entire trial and judgment delivered by this honourable Court in this suit.
6. This honourable Court has the inherent jurisdiction to set aside its judgment on ground of nullity.”
In support of the application is seven paragraphs affidavit.
In opposition to the application the 1st and 2nd appellants/respondents filed a counter-affidavit of ten paragraphs.
A further and better affidavit dated and filed on the 1st day of February, 2010 was filed by the respondents/applicants containing nine paragraphs to which Exhibit KF3 is attached.
At the hearing of the application which came up on the 28th day of June, 2010, learned counsel for the Respondents/Applicant, Kayode Faturiyele, Esq, adopted the applicant’s written address, dated the 15th day of April, 2010, filed on 16/4/2010.
The learned counsel for the respondents/applicants in the written address formulated three issues for determination as follows:-
“a) Whether the Respondents/Applicants’ fundamental Right to fair hearing was breached by the admission of Exhibit B1 which was rejected by the lower tribunal when tendered by an unsworn witness.
b) Whether the judgment delivered by this Honourable Court on 1st December 2009 which heavily relied on Exhibit B1 is null and void.
c) Whether this Honourable Court has the jurisdiction to set aside its judgment arising from appeals against election tribunal.”
Arguing the application brought pursuant to Order 7 rule 1 of the Court of Appeal Rules 2007, Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the inherent powers of the court, supported by a 7 paragraph affidavit, the learned counsel for the applicants stated that the first issue for determination has raised fundamental and weighty constitutional issue concerning fair hearing. He stated that in the determination of issue 1, the history and circumstances should be traced, relying on OLATUNBOSUN V. ANNENIH (2009) 15 NWLR (PT.1165) 560 at 573 Paragraph A. Reference was made to page 11 – 12 of Exhibit “KF.2”. Pointing out that the Police Investigation Report tendered by an unsworn witness, Police Officer which was rejected by the Lower Tribunal was admitted in evidence and marked as Exhibit B1 by this Court.
According to the learned counsel for the applicants, the respondents/applicants would have had the opportunity to cross-examine the said witness on the veracity and authenticity of the said document if the said document was admitted in evidence at the Lower Tribunal.
In the view of the learned counsel for the applicants, applicant’s Constitutional right was breached by the admission in evidence by this Honourable Court of the document which was rejected by the Tribunal and urged the Court to resolve issue No.1 in favour of the applicants.
It is the contention of the learned counsel for the applicants that the breach of the applicant’s constitutional right to fair hearing has been breached by this Court as adumbrated in the argument on issue No.1. Consequently it rendered the judgment delivered on 1st December, 2009 in Appeal No. CA/K/EP/SHA/11/08 null and void.
On the 2nd and 3rd issues for determination, learned counsel for the applicants submitted that this Honourable Court has the inherent jurisdiction to set aside its judgment in an election petition relying on the authority of HON. SANI SHA’ABAN & ANOR. VS. ALHAJI NAMADI SAMBO & 2 ORS. APPEAL NO. CA/K/137/M/2009 delivered by this Honourable Court on 1st day of March, 2010 as the fundamental right of the applicant’s to fair hearing has been breached due to the failure of the court to afford the applicant’s counsel the opportunity to cross-examine the witness before admitting the police report, Exhibit “B1” in evidence.
In conclusion, he urged the Court to set aside its judgment as there is a distinction between this case and that of SANI SHA’ABAN (supra).
Learned counsel holding brief for Yunus Ustaz Usman, S.A.N., also adopted the 1st and 2nd Appellants/Respondents written address dated the 27th day of April, 2010 filed on the 28th day of April, 2010.
The learned Senior Counsel for the 1st and 2nd respondents/appellants, formulated two issues for determination in the written address as follows:-
“ISSUE NO.1
Whether the Court of Appeal has jurisdiction and competence to review or set aside its own decision in an election petition appeal to it after its final and conclusive judgment thereon in view of the provisions of section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999.
ISSUE NO.2
Whether the Respondents/Applicants were given fair hearing.”
In his response to the submission of the learned counsel for the 1st and 2nd respondents/appellants on his issue No.1 stated that the 1st issue for determination has brought into sharp focus a consideration of the provisions of Section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria which he reproduced in the said written address and submitted that by virtue of Section 246(3) of the Constitution, the decision of Court of Appeal in respect of appeal arising from Election Petitions shall be final. Pointing out that the said final and conclusive judgment of this Honourable Court constitutes estoppel under Section 54 of the Evidence Act thereby binding conclusively on the parties thereto and this Honourable Court. Placing reliance on OKONKWO V. NGIGE (2007) 12 NWLR (PT.1047) 191 at 208 – 211, UMANAH V. ATTA (2006) 17 NWLR (PT.1009) 503 at 527 – 528 and ADIGUN V. THE GOVERNOR OF OSUN STATE (1995) 3 NWLR (PT385) 513.
It is conceded by the learned senior counsel that under very exceptional circumstance, this Honourable Court can review its judgment to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment so as to give effect to its meaning or intention and referred to Order 18 rule 4 of the Rules of this Court. Reference was also made to the case of ALHAJI I.Y. ENTER. LTD V. in OMOLABOJE (2006) 3 NWLR (PT.966) 195 at 2002 and ABA SOUTH LOCAL GOVERNMENT V. NWAJIOBI (2008) 6 NWLR (PT.1084) 503 at 526.
Learned counsel for the 1st and 2nd appellants/respondents contended that the 1st and 2nd respondents’ application is not brought under exceptional circumstance having regard to the ground of the application as set out in the applicants’ motion paper. He further submitted that the grounds therein did not tally with the exceptions provided under Order 18 rule 4 of the Rules of this Court.
In the view of the learned counsel for the 1st and 2nd appellants/respondents, the ground of the application and the deposition in the affidavit are invitations to this Court to revisit its final judgment. Relying on the authority of ONYEABCHI K INEC (2003) 8 NWLR (PT 769) 417 at 439 – 440 Paragraphs D – G and JATAU V. AHMED (2003) 4 NWLR (PT.811) 498 at 511 Paragraphs E-F.
On his issue No.2, learned counsel for the 1st and 2nd appellants/respondents, stated that the 1st and 2nd appellants/ respondents have by paragraphs 5 of his counter-affidavit show that the 1st and 2nd respondents/applicants have duly argued both his interlocutory and the main appeal when the appeal came up for hearing and referred to Exhibit KF3 annexed to in the applicant’s further and better affidavit in support of their application.
In conclusion, learned counsel for the 1st and 2nd appellants/respondents urged the court to dismiss the respondents/appellants motion on notice dated the 21st day of December, 2009 filed on the 22nd day of December, 2009.
The learned counsel for the 1st and 2nd applicant/respondent, in response to the submission of the learned counsel for the 1st and 2nd appellants/respondents on point of law, file written reply address and urged the court to consider the 1st and 2nd appellants/ respondent’s’ counter affidavit
That the deponents in the 1st and 2nd appellants/respondents’ counter affidavit and 3rd and 4th respondents counter affidavit do not have personal knowledge of the facts they deposed to in their respective counter-affidavit. He referred the court to the case of CHIEF FRANCIS D. EDU & 3 ORS VS. COMMISSIONER FOR AGRICULTURE, WATER RESOURCES AND RURAL DEVELOPMENT (2000) 12 NWLR (PL681) 316 at 334 Paragraph C.
Learned counsel for the 1st and 2nd applicants/respondents urged the court to grant their application as prayed.
Generally when a court has delivered its judgment it becomes functus officio and does not have competence to revisit the judgment save in very special and limited circumstances. But this is subject to one exception that is when the judgment is shown to be a nullity in the circumstances to be further set out anon.
Hence by virtue of the provisions of Order 18 Rule 4 of the Court of Appeal Rules, 2007, this court shall not ordinarily review its 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 necessary effect to its meaning or intention. Thus by implication, a judgment or order once made shall neither be varied, where it appears to correctly represent the decision of the court, nor shall the operative substantive part of it be varied and substituted in any form. See ALOA VS. ACB LTD (2000) 7-9 LRCN 1899 at 1922 and 1923; 9 NWLR (PL672) 264 at 299 Paragraphs B – E. Aside from the provisions in the rules of Court, the court must and does possess the inherent power or jurisdiction to amend or vary its own judgment or order so as to carry out its own meaning and where the language used has been doubtful, to make it plain. See ASIYANBI VS. ADENIJI (1967) 1 ALL NLR 88; UMUNNA VS. OKWURAIWE (1978) 6 SC 1; ADIGUN VS. A.G. OYO STATE (1987) 2 NWLR (Pt 56) 197; ORTHEPAEDIC HOSPITAL MANAGEMENT BOARD VS. APUGO & SONS LTD (1990) 1 NWLR (Pt 129) 652.
Cases where the Court of Appeal has the inherent jurisdictional power to set aside its decision, order or judgment which for all intent and purposes are, where it is established, that the decision have been obtained in consequence of some fraudulent misrepresentation by any one of the parties; given without jurisdiction and thus rendered it a nullity, where it has become so obvious that the court was misled into giving same, under a mistaken belief that the parties consented thereto. See ALAKA VS. ADEKUNLE (1959) LLR 76; OLUMESE VS. FALANA (1990) 3 NWLR (Pt. 136) 1, OBIOHA VS. IBERO (1994) 1 NWLR (Pt. 322) 503; ODOFIN VS. OLABANJI (1996) 3 NWLR (Pt 435) 126 AND SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC. See also recent unreported decision of this court in the consolidated Appeals Nos. CA/PH/EPT/548/2007 and CA/PH/EPT/549/2007: PIUS NWOGA VS. EMERONYE BENJAMIN & ORS. AND IN REEMERONYE BENJAMIN VS. PIUS NWOGA & 9 ORS.
Having set out the general principle enumerating the exceptional circumstances under which the Court can revisit its judgment, it is pertinent in the instant application to state briefly the facts of what transpired in the Tribunal and this Court in the determination of this application. The main issue from the facts leading to this application was the admission of Exhibit WB1″ the investigation report tendered in evidence before the Tribunal but rejected by the Tribunal without any reason.
The 1st and 2nd appellants’/respondents who were aggrieved with the ruling delivered on 13th day of November, 2007, filed an interlocutory appeal before this Court challenging the said ruling. The 1st and 2nd appellants/respondents filed a brief in respect of the interlocutory appeal against the said ruling and subsequently filed a brief in respect of interlocutory decision dated the 7th day of March, 2008, filed on the 10th day of March, 2008.
The learned counsel for the 1st and 2nd respondents, Samuel Atung, Esq., filed a notice of preliminary objection to the interlocutory appeal dated the 14th day of May, 2009, filed on the 18th day of May, 2009 which was incorporated along with the submission of counsel in the Amended 1st and 2nd respondents brief, (now applicants) dated 14th day of May 2009, filed on 18/8/09.
The appellants/respondents filed a reply brief to the interlocutory objection dated and filed on the 25th day of March, 2008.
The interlocutory appeal was heard by this Court as well as the main appeal as shown in Exhibit KF2 attached to the applicant’s supporting affidavit in respect of his application.
As can clearly be seen from the judgment of this Court also attached to the supporting affidavit, the interlocutory appeal as well as the main appeal were fully and fairly contested by the parties to this application. The issue of the admission of the parties investigation report was fully considered and resolved by this Court particularly at pages 6 – 12 of the judgment of the court in Appeal No. CA/K/EP/SHA/11/08 delivered on the 1st day of December, 2009.
In my humble view, it cannot be denied that all the parties who argued the appeal were given ample opportunity to present their case on appeal to the best of their ability and both the appellants/respondents as well as the 1st and 2nd respondents/ applicants fully utilized the opportunity as borne out by the record of appeal.
It is clear that in admitting exhibit B1 complained of by the learned counsel for the applicants, this Court merely exercised its appellate powers provided under Section 16 of the Court of Appeal Act, 1990 Cap 75 now Section 15 of the Court of Appeal Act; 2004 part of which reads as follows:-
“……….. shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
I am therefore unable to agree with the learned counsel for the applicants, having regard to what transpired in this Court as borne out by the record that the admission of Exhibit “B1”, the Police Investigation Report in evidence by the Court in the exercise of its discretion under Section 16 of the Court of Appeal Act, 1990 or 2004 Laws of the Federation of Nigeria, amounted to a breach of the fundamental right of the applicants to fair hearing to warrant the entire judgment of this court to be set aside. In my humble view the complaint of the applicants of the breach of their fundamental right to fair hearing has not been justified.
The Supreme Court of Nigeria in the case of NWABUOKU & 5 ORS VS. FRANCIS ONWURD (substituted for OBI NWUDI by order of Court dated 5/10/03) and 3 ORS. (2006) 5 SCNJ 359 at 372 – 373 inter alia the Court held that a document could be admitted on the ground of relevancy but the court may not attach any weight on it in the light of the circumstances of the case. In other words, admissibility which based on relevancy is distinct from weight to be attached to the document.
It is firmly settled that an appellate court is in as good a position as a trial court, in the admission of documentary evidence.
The court can examine an exhibit or exhibits and draw the necessary inference. See the case of GONZEE NIGERIA LTD VS. NIGERIA EDUCATION RESEARCH AND DEVELOPMENT COUNCIL & 2 ORS. (2005) 6 S.C (Pt.1) 75; (2005) ALL FWLR (Pt.274) 235 at 247 – 248.
In view of the foregoing, I hold that the application lacks merit and is hereby refused. Accordingly, application No. CA/K/296/M/09 dated the 21st day of December, 2009, filed on 22nd day of December, 2009 is hereby dismissed. No order on costs.
MOHAMMED LAWAL GARBA J.C.A: I have read a draft of the lead ruling delivered by my learned brother Ba’aba, JCA in this application. The issues raised by the learned Counsel for the Appellant have been ably considered and resolved in line with the position of the law on them. Because at the oral hearing of the application in court on 28/6/2010, the learned Counsel had said that it is primarily premised on the fact that the applicant’s right to fair hearing was infringed by the admission of Exhibit B1 (Police Report), by way of emphasis and support of the lead ruling, I want to say a few words.
It was common ground that the Police Officer who produced the said Exhibit B1 was subpoened by the Lower Tribunal to produce the said document at the trial of the petition before it. The Police Officer was therefore not a witness called for the purpose of giving evidence at the trial but merely summoned by the Lower/Tribunal to produce the report in question.
By the provisions of Section 193 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, the Police Officer was not a witness who testified or gave oral evidence or account of the facts contained in the report he was directed by the lower/Tribunal to produce at the trial. The Section has the following provisions:-
“193. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness .”
Section 192 of the Evidence Act, allows or permits the summoning of any person whether a party or not in a cause, to produce a document without being summoned to give evidence and his personal attendance may be dispensed with if he caused the document to be produced in Court as directed in the summons. This is what the section says:-
“192. Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if he causes such document to be produced in Court, the Court may dispense with his personal attendance.”
In the recent case of OGUNTAYO .V. ADELAJA (2009) 15 NWLR (1163) 150, the Supreme Court dealing with a person summoned to produce a document by a court or Tribunal had stated at page 190, paragraph B-D that:-
A witness called or subpoened to come and only tender a document needed not be sworn.
This is because by virtue of section 193 of the Evidence Act, a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.” Underline provided)
See also the cases of ADEDEJI .V. KOLAWOLE (2006) 2 EPR 70 @ 91, ONYEMELEKWE .V. L. DALBERTO (2001) FWLR (83) 2166 @ 2184, ANATOGU .V. IWEKA II (95) 8 NWLR (415) 547 @ 572.
The Police Officer who produced Exhibit B1 was not a witness who could have been cross-examined for merely producing the document he was summoned to produce under section 193 of the Evidence Act and as stated by the apex Court above. The Applicant was therefore not entitled in law to have cross-examined the Police Officer who merely produced Exhibit B1 and who was not called or summoned as a witness at the trial. In the circumstances, the Applicant had no legal right to cross-examine the Police Officer or which could have been or capable of being infringed or breached by the admission in evidence of the document he produced either at the trial or in this Court.
Since the Applicant has no legal right to cross-examine the Police Officer who produced Exhibit B1 under the law, the issue or question of the breach or denial of his fundamental right to fair hearing guaranteed by the Nigerian Constitution on the admission of the document in evidence is very clearly misconceived. It did not arise.
For the above and the more detailed reasons set out in the lead ruling, I too find no merit in the application and join in dismissing it. I abide by the order as costs made in the lead ruling.
JOHN INYANG OKORO, J.C.A: I was obliged a copy of the lead ruling of my learned brother, Ba’aba, JCA just delivered and I agree with him that this application lacks merit and ought to be refused. Although my learned brother has effectively and efficiently dealt with all the issues raised in this application, I wish to add a few words of mine only in support of the Ruling.
By section 192 of the Evidence Act, any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if he causes such document to be produced in court, the court may dispense with his personal attendance. This means that such a person so summoned does not automatically translate or become a witness until he is so made. See section 193 of the Evidence Act, Oguntayo V. Adelaja (2009) 15 NWLR (pt 1163) 150. Therefore, the Police Officer who was summoned to produce Exhibit B1 was not a witness in the circumstance. He was therefore not subject to any cross examination. Thus, the failure of the Appellant to cross examine the said Police Officer did not in my opinion amount to a denial of fair hearing or a breach of his fundamental right as enshrined in section 36 of the constitution of the Federal Republic of Nigeria 1999.
Based on the above and the fuller reasons contained in the lead ruling, I agree that this application lacks merit and is also dismissed by me. I abide by the order as to costs made in the lead Ruling.
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Appearances
KAYODE FATURIYELE, ESQ.,For Appellant
AND
L. OKERE, ESQ., with ASABE AHMED (MRS), P.C OKEKE (MRS) and M. SAYI (MISS)
N.H. AUTA, ESQ.,For Responden
