LASISI OLOJE v. JOSEPH AYANTUYI & ORS
(2012)LCN/5630(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2012
CA/AK/125M/2011
RATIO
“The proceedings based on a forged process amounted to a nullity and the court had power in the circumstances to set aside its proceedings. In the case of Ebe V. Ebe (supra), a petition for divorce was heard as an undefended petition and without notice to the respondent on the ground that the answer to the petition was filed out of time and no leave was sought to regularise the process. It was held at page 241 C – D of the report that failure to serve a process on a party who is entitled to service is a fundamental vice and that the party affected by the order or decision arising from the proceedings is entitled ex dibito justiciae to have the order or decision set aside as a complete nullity.” Per KEKERE-EKUN,J.C.A.
“The position of the law is that once a court has given judgment in a matter it becomes functus officio. It cannot revisit the judgment except to correct clerical mistakes or errors arising from accidental slips or omissions, See Order 19 Rule 4 of the Court of Appeal Rules 2011: Onwuchekwa V. C.C.B. (1999) 5 NWLR (603) 409 @ 419 C – D. An exception to this rule is where there is a fundamental irregularity in the court’s proceedings, which vitiates them and renders the entire adjudication a nullity, such as (i) Where the court lacks jurisdiction; (ii) Where the decision is obtained as a result of the mistake of one of the parties; (iii) Where the decision is obtained through fraud on the part of one of the parties; (iv) Where it is clear from the record that the Judge was led to believe that the Judgment was a consent Judgment when in fact it was not. See: Ebe V. Ebe (supra) at 243 E – F; Makinde V. Adeogun (2008) LPELR-CA/I/EPT/NA/18/07 Alao V. A.C.B. LTD. (2000) 6 S.C. (pt.1) 27 @ 37.” Per KEKERE-EKUN,J.C.A
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
LASISI OLOJE
(For himself and on behalf of the Onishere Community Ifesowapo Local Government Area of Ondo State) Appellant(s)
AND
1. JOSEPH AYANTUYI
2. JOSEPH AFAPE
3. GOVERNMENT OF ONDO STATE
4. ATTORNEY-GENERAL OF ONDO STATE
5. COMMISSIONER FOR LANDS AND HOUSING ONDO STATE
6. AFRO CONTINENTAL (NIG.) LTD. Respondent(s)
KUDIRAT M. O. KEKERE-EKUN,J.C.A. (Delivering the Leading Ruling): This is a motion on notice dated and filed on 21st October 2011 on behalf of the appellant/applicant seeking an order setting aside the order of this court made on 30th June 2009 dismissing Appeal No. CA/B/30/2004: JOSEPH AYANTUYI & ORS V. GOVT. OF ONDO STATE & ORS pursuant to a Notice of Discontinuance filed on 23/6/09 on behalf of the appellants and a motion on notice dated 25/6/09 filed on behalf of the 4th respondent (6th respondent in this application). The applicant also seeks an order relisting the appeal and an order of injunction restraining the respondents by themselves, their servants, agents or privies from ejecting, disturbing, harassing, embarrassing and/or threatening the applicant over the land in dispute pending the hearing and determination of the appeal on its merits.
The application is brought pursuant to Sections 36 (1), 241 (1) and 243 (a) of the 1999 Constitution; Section 15 of the Court of Appeal Act 2004; Order 4 Rule 6 and Order 11 Rule 4 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the Court. The grounds for the application, as stated on the face of the motion paper are that the ruling of this court dismissing the appeal was based on fraudulent misrepresentation of facts contained in a letter (attached to the supporting affidavit as Exhibit B) written to the Chief Registrar of this court by the 1st and 8th appellants (now 1st and 2nd respondents) indicating that the appeal was withdrawn with the consent of all the appellants. It is the present applicant’s contention that neither his consent nor the consent of the entire Temitope Oniserere Community of Odigbo Local Government Area of Ondo State was sought or obtained before the letter was written. It is the applicant’s contention that although the 2nd, 3rd, 4th, 6th, 7th and 9th appellants in the dismissed appeal are deceased, the sections of the community whose interests they represented are desirous of pursuing the appeal. The application is also supported by a 36-paragraph affidavit deposed to by the applicant himself with exhibits attached thereto marked A to D respectively.
In opposition to the application the 6th respondent filed an 8 paragraph counter affidavit with an exhibit attached thereto and marked Exhibit OA1. There is a further affidavit dated 1/12/12 filed on behalf of Kola Olawoye Esq., learned counsel for the applicant to the effect that the applicant did not instruct the said counsel to discontinue the appeal on his behalf.
Although the 1st, 2nd, 3rd, 4th and 5th respondents did not file counter affidavits they opposed the application on points of law.
At the hearing of the application on 18/9/2012, Mr. Kola Olawoye Esq. relied particularly on paragraphs 12, 13, 14, 17, 18, 19, 21 and 23 – 31 of the supporting affidavit. He enumerated the circumstances in which a court has inherent jurisdiction to set aside its own judgment or order. In the circumstances of this case he contended that the court was misled into dismissing the appeal under the mistaken belief that all the parties consented to its withdrawal. He relied particularly on Exhibit B, which is reproduced below better grasp of his argument:
15th April 2009
The Registrar,
Court of Appeal,
Benin
RE; APPEAL NO, CA/B/30/2004
JOSEPH AYANTUYI & OTHERS V. GOVERNOR OF ONDO STATE
AND OTHERS
NOTICE OF DISCONTINUANCE
We the entire Appellant in respect of the aforementioned matter hereby intend to discontinue and hereby withdraw wholly our interest.
Our withdrawal is borne out of the fad that out of nine (9) Appellants, six (6) of us have died and one of us is presently at the prison custody in Ondo State.
Furthermore, consequent upon the old age of the remaining Appellants and our interest in peace and tranquility, we unanimously agreed in our meeting held on 15th April, 2009 to put an end to the crisis that has been engulfing the entire community since twenty years ago.
We are very grateful for your painstaking.
Thank.
Yours Faithfully,
SIGNED RHT
JOSEPH AYANTUYI JOSEPH AFAPE
For & on behalf of Onisere Community of Odigbo Local Government, Ondo State,
C.C. Attorney-General of Ondo State,
Ondo State Ministry of Justice,
Akure
2. Afro Continental Nigeria Limited,
Olukayode House, No. 7 Oluwatuyi Street,
Akure, Ondo State.’
Mr. KOLA OLAWOYE contended that since the all the parties did not consent to the withdrawal of the appeal, particularly having regard to the fact that the applicant was in prison custody at the time Exhibit B was written, this court has jurisdiction to grant the prayers sought. He relied on several authorities including: Tomtec Nig. Ltd. V. F.H.A. (2009) 12 SC (PT.III) 162 @ 167 – 168 & 190; Ebe V. Ebe (2004) 3 NWLR (860) 215 @ 243: Odofin V. Olabanji (1996) 3 NWLR (435) 126 @ 133. He noted that the 2nd -5th respondents did not file counter affidavits and urged the court to deem the averments in the supporting affidavit as admitted. He urged the court to grant the application.
Mr. FUNSO NETUFO, learned counsel for the 1st and 2nd respondents argued that the application is in violation of Order 11 Rules 3, 4 and 5 of the Court of Appeal Rules 2011. He submitted that the applicant is asking the court to sit on appeal over its own decision. He submitted that an allegation of fraudulent misrepresentation must be proved beyond reasonable doubt, which the applicant has failed to do, He maintained that the applicant’s remedy is to appeal to the Supreme Court, as the application before this court amounts to an abuse of the court’s process.
MR. F.K. SALAMI, Deputy Director Public Prosecutions, Ministry of Justice, Ondo State for the 3rd, 4th and 5th respondents aligned himself with the submissions of learned counsel for the 1st and 2nd respondents. In support of the contention that the court is functus officio he relied on the case of Onwuchekwa V. Co-Operative Bank & Ors. (1999) 5 NWLR (603) 409 @ 414 – 415 H – A & B-F.
Mr. L.A. AYANWALE ESQ. learned counsel for the 6th respondents in opposing the application, relied on the counter affidavit filed. In addition to the submissions of Mr. Netufo and Mr. Salami, he contended that there was an intervening event between the letter, Exhibit B and the dismissal of the appeal. He referred to Exhibit OA1 attached to the counter affidavit and referred to in paragraph 8 thereof. Exhibit OA1 is an affidavit of service on the appellants’ counsel in Appeal No. CA/B/30/2004 of a motion on notice dated 25/6/09 filed on behalf of the 4th respondent (6th respondent herein) seeking an order dismissing the appeal for want of prosecution. The ground for the application was that “the appellants have indicated that they are no more interested in pursuing the appeal.” He noted that the applicant exhibited the same motion to his supporting affidavit as Exhibit C. Learned counsel submitted that the applicant’s counsel had ample time to react to Exhibit OA1 and make the necessary remedial application before the dismissal of the appeal on 30/6/09. He also referred to the proceedings of 30/6/09 (Exhibit D attached to the supporting affidavit) where it is shown that the applicant’s counsel clearly left the issue of the dismissal of the appeal to the court’s discretion. He argued that what is material is not the applicant’s consent to Exhibit B but his counsel’s reaction in court to the motion for dismissal. He argued that once briefed counsel is in full control of his case. He relied on: Akanbi & Ors. V. Alao & Anor. (1989) 3 NWLR (108) 118 @ 141 D – G; Adewunmi V. Plastex Ltd. (1986) 3 NWLR (32) 767 @ 778 C – E & 782 E – H; Obayiuwana V. Ede & Ors. (1998) 1 NWLR (535) 670 @ 578 C – D. He urged the court to dismiss the application with substantial costs.
The position of the law is that once a court has given judgment in a matter it becomes functus officio. It cannot revisit the judgment except to correct clerical mistakes or errors arising from accidental slips or omissions, See Order 19 Rule 4 of the Court of Appeal Rules 2011: Onwuchekwa V. C.C.B. (1999) 5 NWLR (603) 409 @ 419 C – D.
An exception to this rule is where there is a fundamental irregularity in the court’s proceedings, which vitiates them and renders the entire adjudication a nullity, such as
(i) Where the court lacks jurisdiction;
(ii) Where the decision is obtained as a result of the mistake of one of the parties;
(iii) Where the decision is obtained through fraud on the part of one of the parties;
(iv) Where it is clear from the record that the Judge was led to believe that the Judgment was a consent Judgment when in fact it was not.
See: Ebe V. Ebe (supra) at 243 E – F; Makinde V. Adeogun (2008) LPELR-CA/I/EPT/NA/18/07 Alao V. A.C.B. LTD. (2000) 6 S.C. (pt.1) 27 @ 37.
The applicant’s contention in this application is that he did not consent to the withdrawal of the appeal. He relies on Exhibit B, reproduced earlier. It is pertinent at this stage to reproduce Exhibit D, the proceedings of 30/6/09:
“IN THE COURT OF APPEAL
HOLDEN AT BENIN CITY
ON TUESDAY THE 30TH DAY OF JUNE 2009
JUSTICES
O.F. OMOLEYE
A.A.B. GUMEL
C.E. NWOSU-IHEME
BETWEEN
JOSEPH AYANTUYI & ORS
V.
GOVERNMENT OF ONDO STATE & ORS
1st Appellant/Applicant present
Adekola Olawoye for Appellants
E.O. Sofunde SAN with him L.A. Ayanwale for 4th Respondent
1st – 3rd Respondents and Counsel absent
Registrar: 1st – 3rd Respondents served on 1/6/09
OLAWOYE: There is an application at the instance of the 4th Respondent served on us, although this matter was adj. to today for the hearing of the appeal.
SOFUNDE SAN: We have an application dated 25/6/09 filed the same day for the order of this court to dismiss this appeal for want of jurisdiction on the ground of the notice of discontinuance of this appeal dated 15/4/09 from the 1st Appellant on behalf of the other Appellants.
We seek to move in terms.
OLAWOYE: In this application I leave everything to the discretion of the court.
COURT: Pursuant upon the Notice of Discontinuance filed on 23/6/09 and the motion of the 4 Respondent and its accompaniment, this appeal No. CA/B/30/04 is hereby dismissed.
SGD
O.F. OMOLEYE
30/6/09
Order 11 Rules 3, 4 and 5 of the Court of Appeal Rules 2007 (which were applicable as at 30/6/09) provide thus:
‘Rule 3: The withdrawal of an appeal with the consent of the parties under Rule 2 of this Order shall be a bar to further proceedings on application made by the respondent under Order 9.
Rule 4: If all the parties do not consent to the withdrawal of an appeal as aforesaid the appeal shall remain on the list and shall come on for the hearing of any issue as to costs of otherwise remaining outstanding between the parties, including any application made by the respondent under Order 9 and for the making of an order as to the disposal of any sum deposited against cost.
Rule 5: An appeal which has been withdrawn under this Rule, whether with or without an order of the Court, shall be deemed to have been dismissed.”
The Notice of Discontinuance, Exhibit B addressed to the Registrar of the Benin Division of this Court, reproduced earlier in this ruling clearly suggests that it was written for and on behalf of all the appellants. On the basis of this letter, the 4th respondent filed an application seeking the dismissal of the appeal. Exhibit B was attached as an exhibit to the 4th respondent’s application, which was duly served on learned counsel for the appellants. Also attached as an exhibit (DU3) to the 4th respondent’s application is a letter addressed to Mr. Kola Olawoye, learned counsel for the appellants on behalf of his clients directing him to file a Notice of Discontinuance in respect of the appeal? The letter was copied to the 4th respondent. When the appeal came up on 30/6/09, Mr. Sofunde, SAN drew the court’s attention to the motion filed by the 4th respondents for the dismissal of the appeal. Notwithstanding the exhibits attached thereto indicating that it was the decision of all the appellants to discontinue the appeal, Mr. Olawoye did not raise any objection to the application being moved or granted. He did not ask for time to ascertain the correctness of the contents of Exhibits B and DU3. His reaction was: “In this application, I leave everything to the discretion of the court.” Having left everything to the court’s discretion, the court rightly dismissed the appeal in compliance with Order 11 Rule 5 of the Court of Appeal Rules; The issue of consent did not arise at all.
I entirely agree with Mr. Ayanwale, learned counsel for the 6th respondent that it is too late in the day for the applicant to contend that his consent was not sought before the notice of discontinuance was filed. Mr, Kola Olawoye was the solicitor briefed to represent the interests of all the appellants in the appeal for an on behalf of the Onishere Community Odigbo Local Government Area of Ondo State. In that capacity he had complete authority over the case and the discretion to conduct the case on his clients’ behalf to the best of his professional ability, provided that he did not act contrary to any express negative instructions. See: Akanbi & Ors. V. Alao & Anor (1989) 3 NWLR (108) @ 141 D – G; Adewunmi V. Plastex (1986) 11 NSCC 852 (Vol. 17) 852; Obayiuwana V. Ede (1998) 1 NWLR (535) 670 @ 578 C – D.
In the circumstances of this case, Mr. Olawoye had ample time between the service on him of the 4th respondent’s application with the exhibits annexed thereto and the proceedings of 30/6/09 to confirm the correct position from all his clients, including the present applicant who was in prison custody. Rather he left the decision to the court’s discretion. Having regard to the material before it the court could not have done otherwise than to dismiss the appeal. The applicant has failed to establish any fraud or misrepresentation on the part of any of the parties to the dismissed appeal. The court having made a final decision in the matter has become functus officio and lacks the jurisdiction to revisit it.
I have considered the authorities relied upon by learned counsel for the appellant. In the case of: Tomtec (Nig.) Ltd. V. F.H.A. (supra) the Court of Appeal set aside its proceedings because it was established that the Notice of Withdrawal pursuant to which it dismissed the appeal was a forgery. The proceedings based on a forged process amounted to a nullity and the court had power in the circumstances to set aside its proceedings. In the case of Ebe V. Ebe (supra), a petition for divorce was heard as an undefended petition and without notice to the respondent on the ground that the answer to the petition was filed out of time and no leave was sought to regularise the process. It was held at page 241 C – D of the report that failure to serve a process on a party who is entitled to service is a fundamental vice and that the party affected by the order or decision arising from the proceedings is entitled ex dibito justiciae to have the order or decision set aside as a complete nullity. None of these authorities is applicable to the case in hand. I therefore hold that this application is completely lacking in merit. It fails in its entirety and is accordingly dismissed.
Costs of N10, 000.00 are awarded in favour of the 6th respondent and against the applicant.
CHIMA CENTUS NWEZE J.C.A: I had the privilege of reading the draft of the leading ruling which my noble Lord, Kekere-Ekun JCA, just delivered now. I, entirely, agree with my Lord that this application is so bereft of merit that it may, rightly, be characterised as being vexatious and oppressive.
As shown in the leading ruling, Kola Olawoye, Esq., as counsel retained to represent the interests of all the appellants in this appeal, for and on behalf of the Onishere Community, Odigbo Local Government Area of Ondo State, had the complete authority over the case. In the discharge of his professional obligations to the community, he had the discretion to conduct the case to the best of his competence, Obayiuwana v. Ede [1998] 1 NWLR (pt. 535) 670, 678; Adewunmi v. Plastex (1986) 11 NSCC (vol. 17) 852.
In Akanbi v. Alao (1989) 3 NWLR (pt. 108) 118, 141, the apex court dealt with the question of the usual concern about the plight of the “helpless litigant whose Counsel had made an error of judgment in his legal submissions, and consequently lost the case for his clients.” Craig JSC, speaking for the court, reiterated the view of the court in such circumstances: a view which Eso JSC stated in this eloquent manner in Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd:
Counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full ‘control’ of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to Judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court. The only thing open to the client is to withdraw instructions from the counsel or, if the Counsel was negligent, sue in tort for professional negligence. Such are the powers but such are also the risks.
When, on June 30, 2009, Olawoye of counsel, decided to “leave everything to the discretion of the court”, he was exercising his professional authority over the case. It is, therefore, too late for the applicants to pretend to be impugning his authority now.
It is for the above reasons, and the more elaborate reasons in the leading ruling, that I, too, shall enter an order dismissing this application as being unmeritorious.
CHINWE E. IYIZOBA J.C.A: I read before now the ruling just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the reasoning and conclusions arrived thereat. The decision of the court was a final decision. The court being functus officio lacks the jurisdiction to reverse itself. I also hold that the application lacks merit and ought to be dismissed. I dismiss it; and I abide by the consequential orders in the lead ruling including the order as to costs.
Appearances
KOLA OLAWOYE ESQ.For Appellant
AND
FUNSO NETUFO ESQ.
F.K. SALAMI, Deputy Director Public Prosecution, Ministry of Justice, Ondo State with ONYEKA B. EHIWOUGUN, Legal Officer
L.A. AYANWALE
6th Respondent represented by CHIEF FEMI ADALUMO, Manager.For Respondent
