OLUFEMI ADENIYI & ORS v. HERBERT ADEYINKA ADEOLU OYELEYE & ORS
(2014)LCN/7357(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of July, 2014
CA/IL/M.21/2014
RATIO
COURT: FUNTUS OFFICIO; WHEN DOES A COURT BECOMES FUNTUS OFFICIO
Having stated the above facts, it is imperative that, I amplify on the position of the law as supported by the rules. When a matter such as an appeal, as in this case, is struck out, on procedural ground by this Court following the hearing it on merits this Court becomes functus officio to entertain similar appeal when the procedural defaults is rectified. This is because the matter struck out has left the cause list.
Having brilliantly considered and pronounced on the merits of the Appeal No. CA/IL/9/2011 this Court has discharged its obligatory judicial functions thereby becomes functus-officio as far as the merits of this matter is concerned. In A.D.H.L. Vs. Minister F.C.T. (2014) All F.W.L.R. (Pt.713) 1866 at 1878 Pars. A – C, it was decided that once the merits of a case has been decided, the Court cannot reopen it or substitute a new judgment in its stead.
Similarly, in Nigerian Army Vs. IYELA (2008) 18 NWLR (Pt.1118) 115 at 131 – 133 Pars. B – B; P.138 Pars. A – G; P.140 Pars., E. F. it was decided by the Apex Court that, once a Court has given a final decision and necessary consequential orders in a matter presented before it for adjudication, it becomes functus officio and is from reviewing the form of the judgment or order. per. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES:
MOHAMMED LADAN TSAMIYA (PJ) Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
1. OLUFEMI ADENIYI
2. DEBORAH IYABO ADENIYI
3. BOLANLE OLAREWAJU
4. OLAJUMOKE ABOLARIN
5. BOSEDE ADENIYI – Appellant(s)
AND
1. HERBERT ADEYINKA ADEOLU OYELEYE
2. ABRAHAM ASHAOLU
3. YUSUF OMOWUMI MOMODU – Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling): The applicants herein, sued the respondents at the Kwara State High Court of Justice, holden at Ilorin in Suit No. KWS/91/2009. They claimed, against the respondents, a declaration of title to and ownership of a parcel of land situated at Tanke village, Ilorin, Kwara state, trespass on the land, damages and perpetual injunction over the land.
While the suit was pending, the applicants,on 7/6/2010, through their Counsel applied to the trial Court for an order for: “LEAVE to Amend their originating process and the statement of claim, and to file another written statement on Oath”.
In stiff opposition to the application the 1st and the 3rd respondents each filed a counter affidavit. The application was duly argued and the trial Court, in a considered ruling, delivered on 27/10/2010 refused the application and dismissed it in its entirety.
The applicants being dissatisfied with the ruling, on 19/11/2010 filed a three grounds Notice of Appeal. The appeal was heard on 26/3/2013.
But before the hearing of the appeal, learned Counsel for the 1st and 2nd respondents raised and argued their preliminary objections respectively, and urged this Court to uphold their objection and strike out the appeal. Thereafter the appeal was then argued and in its considered judgment, this Court sustained the respondents’ two preliminary objections and consequently struck out the applicants’ appeal for lack of jurisdiction. Not only that, this Court also considered the merits of the appeal in view of the current state of law. This Court also in the alternative stated its decision on the merits of the appeal in favour of the Appellants/applicants.
After all these, the applicants now filed this application praying for leave and extension of time within which to appeal against the said Ruling of Kwara State High Court in Suit No. KWS/91/2009 delivered on 27/10/2010. The application was supported by an affidavit of 20 paragraphs affidavit, and Exhibits A – H. The respondents did not file counter affidavit rather opposed the application on points of law. Both parties filed their respective written addresses on the order of this Court dated 19/2/2014.
The relevant paragraphs of the affidavit in support are paragraphs 1 – 20 as follows:-
1. That I am the 1st applicant in this application by virtue of which I am conversant with the facts of this case and the depositions herein contained except as otherwise stated.
2. That I have the consent, permission and authority of other applicants to depose to this affidavit.
3. That I know as a fact that the Kwara State High Court of Justice, holden at Ilorin (per H.O. Ajayi J.) I Suit No. KWS/91/2009 between the parties herein: OLUFEMI ADENIYI & 4 OTHERS V. HERBERT ADEYINKA ADEOLU OYELEYE & 2 OTHERS delivered a ruling on the 27th day of October, 2010 refusing the applicants’ application for amendment. A copy of the said Kwara State High Court’s ruling of 27th day of October,2010 is hereto attached as EXHIBIT “A”.
4. That we, the Applicants,were aggrieved by the said ruling of 27th day of October, 2010 and therefore timeously our counsel to appeal and we did appeal against same in order to prosecute the appeal diligently to this Honourable Court vide our Notice of Appeal dated and filed by our counsel on the 9th day of November, 2010 without the leave of court, regarding the grounds of appeal in the Notice of Appeal as grounds of law alone. A copy of the said Notice of Appeal is hereto attached and marked EXHIBIT “B”.
5. That the appeal against the said ruling of the Kwara State High Court of 27th October, 2010 was heard by this Honourable Court and judgment was delivered against us, the applicants herein in Appeal No. CA/IL/9/2011 on the 23rd day of May, 2013 on the ground of failure to obtain required leave to appeal since the grounds of appeal are of mixed law and fact and therefore, leave was required before commencing the appeal. A copy of the judgment of this Honourable Court of 23rd day of May, 2013 is hereto attached as EXHIBIT “C”.
6. That as a matter of fact, before this Honourable Court delivered the judgment of 23rd day of May, 2013 in Exhibit “C’, the time within which to appeal against the ruling of the lower court had long lapsed.
7. That as a matter of fact, shortly after the judgment of this court of 23rd day of May, 2013 in Appeal No.CA/IL/9/2011 striking out the appeal for being incompetent, I was very sick and admitted at Ajikobi Cottage Hospital, Okekere, Ilorin, Kwara State where I was treated for severe malaria for about 2 months, before I was discharged. A copy of Medical Report to this effect dated 06/12/2013 from the hospital where I was admitted confirming my sickness and admission is hereto attached as EXHIBIT “D”.
8. That when I was discharged around August, 2013, it took me about 2 months to recover fully and bounce back to my normal daily activities.
9. That during this period that I was sick and trying to recover, I could not meet with other applicants to agree on the next line of action in respect of the appeal, and because I could not meet and discuss the next line of action in respect of the appeal struck out with other applicants, I could not also get in touch with our legal representatives to discuss the next line of action in respect of the appeal as I was not medically fit to so discuss, (sic) moreso when parties were making moves to settle the matter amicably.
10. That it was sometime in October, 2013 that all other applicants were able to meet with me on the appeal where we agreed that the appeal has to be pursued and being the only male among the applicants and their spokes-person, I thereafter met with our legal representatives on the appeal.
11. That aside my sickness, prior to, and after the judgment in Exhibit “C” s the parties to this case, through their respective counsel, have made several moves to settle the case amicably out of Court.
12. That when the terms proposed for settlement was not agreeable to me and other applicants, I wrote a letter to our counsel dated 20th June 2013 informing him of the dissatisfaction of the applicants with the proposed term of settlement to enable our counsel bring it to the notice of the respondents and I was reliably informed by our counsel that it was brought to the attention of the respondents’ counsel. Copies of my said letter of 20th June 2013 and the response thereto of the counsel to the 1st respondent are hereto attached as EXHIBIT “E” and EXHIBIT “F” respectively.
13. That I know as a fact that efforts at seeking leave of court to regularize and follow proper procedure also proved abortive when a similar application for leave was struck out by the Honourable Court on the 16th January 201l3 for want of competence. A copy of the application dated 25th day of October, 2013 with its supporting affidavit, shorn of the attachments thereto, is hereto attached and marked EXHIBIT ”G”.
14. That the applicants are very much interested in pursuing this appeal to its logical conclusion, and as well ready to regularize the position by following the appropriate procedure by seeking the requisite leave of this Honourable Court. A copy of the proposed Notice of Appeal is hereto attached as EXHIBIT “H”.
15. That I was informed by O. W. Akanbi Esq. a counsel in the law firm of the applicants’ counsel on the 18th day of October, 2013 at about 2.00 pm in his office during briefing as follows:
i. That Exhibit “B” was filed on his belief that the grounds of appeal therein are of law alone upon which no leave of court was required before filing same.
ii. That upon the decision of the Honourable Court of 23rd May 2013 striking out our appeal for want of competence on ground of failure to seek leave of court, there is/was need to seek leave from his Honourable Court to appeal out of time.
iii. That the parties to this case, through their respective counsel, have made several moves to settle the case amicably out of court after the judgment in Exhibit “C”, and he observed that there was no point going back to court in order not to prejudice the efforts at settlement.
iv. That after Exhibit “F” was written, another meeting for the settlement was held by counsel to the parties but still the matter could not be settled.
v. That the inability of the applicants to file this application immediately after the judgment was not deliberate, but partly as a result counsel’s (sic) error of judgment, regarding the grounds of appeal in Exhibit “C” as grounds of law alone.
vi. That several efforts have been made to reach amicable settlement of this case, thus making the applicants and their counsel to be cautious in pursuing the appeal in order not to prejudice efforts at settlement.
vii. That the delay in filing this application is not deliberate but due to counsel’s error of judgment as well as efforts at settlement.
viii. That the applicants are ready and willing to pursue the appeal to its logical conclusion if this humble application is granted.
ix. That the Applicants’ proposed grounds of appeal in Exhibit “H” are arguable, substantial and not frivolous, and there is likelihood that the appeal would succeed, if this application is granted.
x. That upon a further and careful perusal of the ruling in Exhibit “A”, the grounds of appeal in respect thereof are at best be that of facts or mixed law and facts upon which the leave of court is required before same can be filed.
xi. That it is in the interest of justice that this application be granted.
xii. That this application is necessary to regularize our position and comply with condition precedent for the filing of our notice of appeal.
xiii. That the respondents would not be prejudiced if this application is granted.
16. That the applicants are interested in the appeal and have therefore decided to regularize their position by complying with the condition precedent for the competence of the appeal.
17. That I am now fit and healthy and all the applicants are ready and willing to prosecute the appeal to just conclusion, if this application is granted.
18. That the delay in bringing this application within time is not deliberate but was due to my ill health, settlement bid, counsel’s error of judgment and circumstances beyond my control.
19. That I and on behalf of other applicants undertake to pursue this application to logical conclusion diligently.
20. That I deposed to this affidavit in good faith conscientiously believing to be true and in accordance with the Oaths Act.
The respondents’ opposition is centered on lack of jurisdiction of this Court to hear the application having been decided earlier on, on merits.
In his submission on this point learned Counsel for the respondents argued that the said Appeal No. CA/IL/9/2010 was argued and on 23/5/2013 this Court considered this matter sought to be appealed, and gave its decision on same. See Page 47 Lines 3 – 18 of Exhibit “C”, the judgment. It was further argued that a Court of law cannot give its decision on merit on same matter twice. Once it has given such decision, it has no more the competence or jurisdiction to give another decision on same matter.
In his response, the applicants’ Counsel submitted that it is the duty and responsibility imposed on this Court of Appeal in a situation where there is an appeal on the substantive matter to the Court of Appeal and issue of jurisdiction was raised, the Court of Appeal should make a finding on jurisdiction and if it finds that it had no jurisdiction it should go ahead and say so and give a considered judgment on the substantive matter. This is so merely for the purpose of appeal to the Supreme Court only but not for any other purpose whatsoever.
Furthermore, the applicants submitted that the decision of this Court in the said appeal is a nullity, is not tenable in law, the Court having struck out the appeal on procedural defect. That the decision of this court on the merit of the said Appeal No. CA/IL/9/2011 striking it out has no effect whatsoever on the appeal.
I have considered the submissions of the parties in this application. The most important question here in my view is the nature of order of Court striking out the matter, such as the appeal in this case after hearing it on the merits.
From the records of this case, as well as the affidavit evidence particularly paragraphs 3 – 5 and 13 of the affidavit of this motion, there was an appeal against the Ruling of the trial Court sought now to appeal which appeal was heard and determined on merit in the judgment of this court dated 23/5/2013 in Appeal No. CA/IL/9/2011. See, Page 47 of Exhibit “C”, the judgment, where this Court per Obande F. Ogbuinya, J.C.A. stated.
“In all, were I to have the jurisdiction to entertain this appeal, I would have resolved the solitary issue in favour of the appellants (now applicants) set aside the decision of the lower Court and granted the appellants’ (applicants’) application as prayed.”
Having stated the above facts, it is imperative that, I amplify on the position of the law as supported by the rules. When a matter such as an appeal, as in this case, is struck out, on procedural ground by this Court following the hearing it on merits this Court becomes functus officio to entertain similar appeal when the procedural defaults is rectified. This is because the matter struck out has left the cause list.
Having brilliantly considered and pronounced on the merits of the Appeal No. CA/IL/9/2011 this Court has discharged its obligatory judicial functions thereby becomes functus-officio as far as the merits of this matter is concerned. In A.D.H.L. Vs. Minister F.C.T. (2014) All F.W.L.R. (Pt.713) 1866 at 1878 Pars. A – C, it was decided that once the merits of a case has been decided, the Court cannot reopen it or substitute a new judgment in its stead.
Similarly, in Nigerian Army Vs. IYELA (2008) 18 NWLR (Pt.1118) 115 at 131 – 133 Pars. B – B; P.138 Pars. A – G; P.140 Pars., E. F. it was decided by the Apex Court that, once a Court has given a final decision and necessary consequential orders in a matter presented before it for adjudication, it becomes functus officio and is from reviewing the form of the judgment or order.
On the Applicants’ argument that the judgment of this Court on merits on Appeal No. CA/IL/9/2013 delivered on 23/5/2013 to wit: it is a nullity, it is not tenable in law, and has no effect whatsoever in my view, the argument should be at the Supreme Court on Appeal. The only option left for the applicants in this circumstance is to appeal to the Supreme Court challenging the resolution of this Court o appeal on its merits in the alternative otherwise the applicants have no business in this Court regarding the decision of the trial Court delivered on 19/11/2011.
This application is also an abuse of Court processes.
In the light of what I said above, the application lacks merit and is hereby dismissed. N20,000.00Â Â (twenty Thousand Naira) as costs to each respondents.
DR. HUSSEIN MUKHTAR, J.C.A.: I was privileged to read the ruling just delivered by my learned brother, Mohammed Ladan Tsamiya, J.C.A, in its draft form. I fully agree with him that, for the reasons set out in the said ruling, this application should be dismissed
I therefore dismiss this application on the reasons ably advanced in the lead ruling.
MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, Mohammed Ladan Tsamlya, PJ. just delivered.
I agree with the conclusion of the appeal, the application lacks merit and hereby dismissed.
Appearances
Dr. Ariyoosu Oludare Akanbi with him K. A. Aminu (Mrs.) J.O. David and A.O. Saka For Appellant
AND
Y.A. Dikko with him Oluseyi Akintoroye for the 1st Respondent
Kamaldeen Abdulquadri for the 3rd Respondent For Respondent
