VICTOR ANOZIE v. INSPECTOR GENERAL OF POLICE & ORS
(2016)LCN/8531(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of April, 2016
CA/L/419/12(R)
RATIO
ACTION: WHAT LAW IS APPLICABLE IN AN ACTION
The law is settled on the issue of commencement of action at the time it was filed, the law that governs such an action is the law at the time of filing such an action and not the extant law prevailing after the commencement of such an action. This position had, since been settled by the old Supreme Court. See MUFUTAU ALAWODE & ORS v. M. A. SEMOH (1959) 4 FSC 27 at pages 29-30. The then F.S.C. stated as follows:
“The test for the commencement of an action both according to English rules and the local rules of Court appears to me to be this: has the Plaintiff done all that is required of him by law to commence this action? In England, all he has to do is to buy the writ and endorse it. In Nigeria, he has to make an application to the registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is, a domestic affair of the Court and its staff. From the time the Plaintiff in Nigeria delivers his application to the Registrar (provided it is not an action in which, the consent of the Court is necessary before the writ is issued) and he pays the necessary fees it will, in my view, be correct to say that an action or suit has been commenced.
This case involved a claim under the Fatal Accidents Act 1846 which requires that, action must be commenced within twelve calendar months after the death of the victim. The accident in this particular case occurred on August 2, 1956. The writ of summons was filed on August 2, 1957. It was signed by on August 8, 1957. The defence submitted that, the action was statute-barred. The objection was over ruled on appeal to the Supreme Court.”
This Court, the Court of Appeal followed this decision of the Supreme Court in SADIKU v. ATTORNEY GENERAL OF LAGOS STATE (1994) 7 NWLR (Pt. 355) 235 at 248 per Akanbi J.C.A. (as he then was) stated as follows:
“It is perhaps important to also emphasize that, Courts have always learned in favour of preservation of the Fundamental Right of the Citizen whether as regards life or property, and will not therefore lightly drive away from the judgment seat, any citizen with a complaint that, his right has been infringed, FAJINMI v. THE SPEAKER, WESTERN HOUSE OF ASSEMBLY (1962) 1 S.C.N.L.R. 300 (1962) 1 ALL N.L.R. (Pt. 1) 205.”
Again, this Court per Onalaja J.C.A. (as he then was) in BANK OF BARODA v. IYALABAMI LTD (1998) 2 NWLR (Pt. 539) 600 at 613 stated as follows:
“FALOBI v. FALOBI (1976) 1 B.M.L.R. 169 (1976) 9-10 S.C.; OJAH v. OGBONI (1996) 6 NWLR (Pt. 454) 272; MADESON IKENI & ANOR v. CHIEF WILLIAMS AKUMA EFOMO & 2 ORS (1997) 4 NWLR (Pt. 499) 318 all stated that, where a party approaches the Court by reference to citation of a wrong law, the Court should do substantial justice by deciding the case on the merit.” PER SIDI DAUDA BAGE, J.C.A.
JUDGMENT: PRINCIPLES GUIDING THE SETTING ASIDE OF JUDGMENT
The Supreme Court has set out a guiding principle for setting aside judgment see WILLAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C. 145; (1982) 1-2 S.C. (Reprint) 70 as follows:
1. The reason for the default in filing the defence.
2. Whether there has been undue delay in making the application so as to prejudice the Respondent.
3. Whether the Respondent would be prejudiced or embarrassed upon on an order for rehearing being made so as to render it unequitable to permit the case to be re-opened and
4. Whether the Applicant’s case is manifestly unsupportable. OGOLO v. OGOLO (2006) 2 S.C. (Pt. 1) 61. PER SIDI DAUDA BAGE, J.C.A.
ACTION: EFFECT OF A VOID ACT
An act that is void is, always incurably bad, and that is when there will be no need for an order of the Court to set it aside. See: K. AKPENE v. BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 SC 47 at pages 58-59; ALHAJI LABARAN NAKYAUTA v. ALHAJI IBRAHIM MAIKIMA & ANOR (1977) 6 SC 51 at 78. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
VICTOR ANOZIE Appellant(s)
AND
1) INSPECTOR GENERAL OF POLICE
2) COMMISSIONER OF POLICE SPECIAL FRAUD UNIT MILVERTON ROAD IKOYI
3) ASST. INSPECTOR GENERAL OF POLICE (AIG) ZONE 11 ONIKAN LAGOS
4) IFEANYI OHAZURUME Respondent(s)
?SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of M. B. Idris J, of the Federal High Court, Lagos Division contained in the ruling of the Court dated the 2nd day of March, 2012 whereby the learned trial judge dismissed the Appellant’s motion on notice dated the 28th day of June, 2011 and refused to set aside his null judgment given without jurisdiction on the 13th day of October, 2010.
The fact which led to this appeal are as follows:
?The Appellant vide his motion ex parte dated the 11th day of May, 2009 and filed on 27th day of May, 2009 applied for the leave of the trial Honourable Court to enforce his Fundamental Human Rights. The motion Ex-parte was brought pursuant to Order 1 Rule 2 (1) (2) (3) (4) 6, Order 4 Rules 1(2) (3) (4) and (6) of the Fundamental Human Rights. (Enforcement Procedure) Rules 1979. His application for leave was accompanied with a statement stating the names addresses and description of the Applicants, the reliefs sought, and the grounds upon which the reliefs are being sought. A verifying affidavit of seven (7) paragraphs and exhibits was also filed
along with the motion ex-parte.
RELIEFS SOUGHT BY THE APPLICATION
I. A declaration that, the forceful, illegal, unlawful and uncivilized arrest without warrant, detention, humiliation and torture of the Applicant by the officers and men under the command of the 1st, 2nd and 3rd Respondents at the criminal and unwarranted mastermind and fiendish instigation of the 5th Respondent is a gross, violation uncivilized, brute, flagrant and unmitigated violation of the Applicants rights to dignity of human person, personal liberty, fair hearing and freedom of movement guaranteed and safeguarded under Sections 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and under Articles 3, 4, 5, 6, 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria.
II. A declaration that, the forceful, illegal and unwarranted arrest without warrant, torture and unlawful detention of the Applicant on the 25th day of July, 2008 and his subsequent detention to the 29th day of July 2008 by the men and officers under the command of the 1st and 2nd Respondents;
and his arrest, detention and continued harassment since the 7th day of March, 2008 by the men and officers under the command of the 3rd Respondent at the continued, selfish and unceasing instigation and promptings of the 5th Respondent without any formal charge against him amounts to a gross violent of the Appellant’s rights to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and Articles 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federal Republic of Nigeria.
III. A declaration that, the commando, Gestapo style, forceful, illegal, unlawful and uncivilized arrest without warrant detention, humiliation and torture of the Applicant by the officers, operatives and men under the command of the 4th Respondent and his continued harassment and intimidation at the barbaric and uncouth mastermind and corrosive instigation of the 5th Respondent is a gross, violent, flagrant and unmitigated violation of the Applicants’ rights to dignity of human person, personal liberty, fair hearing and freedom of movement guaranteed and safeguarded under Sections 34,
35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 and under Articles 3, 4, 5, 6, 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federal Republic of Nigeria 1999 and under Articles 3, 4, 5, 6, 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federal Republic of Nigeria.
IV. A declaration that, the forceful and unwarranted arrest without warrant, torture, unlawful detention of the Applicant from the 24th day of April to the 29th day of April, 2009 and his continued and unabated harassment and intimidation by the men, operatives and officers under the 4th Respondent at the criminal masterminds and selfish instigation and promptings of the 5th Respondent without any formal charge against him amounts to a gross violation of the Applicant’s right to fair hearing and freedom of movement as guaranteed under Section 36 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and Articles 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federal
Republic of Nigeria.
V. A declaration that, the continued and unabated harassment, intimidation and threat of further unlawful and illegal detention of the Applicant by the men, operatives and officers of the 1st-4th Respondents, on an entirely commercial transaction between him and a Corporate Entity (FIRS Equity Securities Limited) under which the 5th Respondent is a Director, at the continued instigation of the 5th Respondent amounts to a gross violation of the Applicant’s right to personal liberty, fair hearing and freedom of movement as guaranteed under Section 34, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 and under Articles 3, 7 and 12 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act, Laws of the Federal Republic of Nigeria.
VI. The sum of N50 million (Fifty Million Naira Only) as general, exemplary, aggravated and punitive damages jointly and severally against the Respondents, for unlawful, illegal, unjustified arrest without warrant of the Applicant, his wrongful torture and detention by men and officers of the 1st-4th Respondents at the fiendish and unrepentant instigation and
masterminds of the 5th Respondent, and the unceasing and unlawful harassment and unabated intimidation of the Applicant.
VII. An order of interim injunction restraining the Respondents, their agents, privies, men, operative, officers, assigns or anybody whosever and at whatsoever capacity in their commands/commission, and on their authority howsoever from harassing, intimidating arresting, torturing, detaining, and or continuing in their renewed harassment, intimidating and or persecution of the Applicant pending the hearing and final determination of the substantive application.
VIII. An order that the granting of leave in this application shall operate as a stay of all actions or matters relating to or connected howsoever with the Applicants’ complaints against the Respondents herein or their agents pending the hearing and final determination of the substantive application/motion on notice.
IX. An order of perpetual injunction restraining the Respondents, their agents, privies, men, operatives anybody acting for or however in their authority, command or commission from further arresting, harassing, intimidating or persecuting the Applicant or
continuing in the infringement of the guaranteed rights of the Applicant.
GROUNDS UPON WHICH THE RELIEFS ARE BEING SOUGHT
1. The Forceful, unwarranted, unlawful arrest without warrant, unabated, harassment, sustained intimidation, detention, torture and unrestrained infringement of the Applicant’s right variously both 1st and 4th Respondents, with the sustained and wicked instigation without any formal charge against him violates the Applicant’s right to fair hearing, dignity to his human person, freedom of movement and a flagrant restrains on his liberty as a free citizen of Nigeria as guaranteed and provided for in Sections 34, 35, 36 and 41 of the 1999 Constitution of Nigeria and under Articles 3, 4, 5, 6, 7 and 12 of the African Charter on Human Rights.
2. The Applicant is a renowned businessman and seasoned stock broker, his continued harassment and intimidation by the men, officers and operatives of the 1st-4th Respondents at the instigation of the 5th Respondent has frontally frustrated his business as well as economic endeavours, and has accordingly frustrated his fatherly role to his family.
3. The Applicant has been made to undergo
pensive mental torture, economic deprivation and social dislocation as a result of his incessant incarceration torture and unwarranted harassment and intimidation by the men, officers and or operatives of the 1st-5th Respondents.
The learned trial Court Coram Tijjani Abubakar J. (now JCA) on the 4th day of June, 2009 granted leave to the Applicant to enforce his Fundamental Rights. The Fundamental Human Right’s application was re-assigned to Justice Idris, when Justice Tijjani Abubakar was transferred to another division of the Federal High Court. Prior to the hearing of the Applicant’s motion on notice, to enforce his fundamental human rights, the Fundamental Human Rights (Enforcement Procedure) Rules 1979 was repealed and a new set of rules enacted and it came into effect on the 1st day of December, 2009. We refer to Order 11 Rules 2 and 3 of the Federal Republic of Nigeria (Enforcement Procedure) Rules 2009. On the 13th October, 2010, the learned trial judge without inviting the parties to address the Court on the jurisdiction of the Court, and suo motu in its judgment struck out the application of the Applicant on the ground that, the present
application is supported by an affidavit not a statement. It was against this decision of the trial Court, that, the Appellant brought an application to set aside the judgment of that Court, on the ground that, the decision was reached per incuriam and without jurisdiction. The application for leave under the 1979 Fundamental Human Rights Rules was accompanied by a statement. After leave was granted, it was no longer necessary for the Appellant/Applicant to file another statement, with his motion on notice upon the coming into effect of the 2009 Fundamental Human Right Rules. In his ruling dated the 2nd day of March, 2012, the learned trial judge held refusing the Appellant’s application to set aside its judgment dated 13th October, 2010. Dissatisfied with the decision of the trial Court contained in the judgment dated 2nd March, 2012, the Appellant promptly appealed against the decision refusing to set aside the default judgment of the trial Court, vide his notice of appeal dated and filed on the 16th day of March, 2012. From the said notice, the Appellant formulated the following two (2) issues for determination viz:
1. Whether the learned trial judge
Coram M. B. Idris J, was right when he held that the judgment of the Court dated, the 13th day of October, 2010 was a final judgment which can only be set aside on appeal. (Ground 2 of the Grounds of appeal.)
2. Whether the learned trial judge Coram M. B. Idris J, was right when he refused to set aside its null judgment dated 13th day of October, 2010, given without jurisdiction thereby infringing on the right of the Appellant to fair hearing (Grounds 1 and 3 of the Grounds of appeal).
The learned counsel to the 4th Respondent also formulated the following two (2) issues for determination viz:
a) Whether the judgment of the Court below delivered on 13th October, 2010, which the learned trial judge declined to set aside, in the circumstance of this case, was a final judgment which can only be set aside by way of an appeal as held by the Court below?
b) Whether the striking out of the Appellant’s suit and refusal to set aside the judgment of 13th October, 2010 infringed the Appellant’s right to fair hearing?
Having examined the two set of issues, that of the Appellant, and those of the 4th Respondent, they are similar, but differently
worded, in that respect therefore, the Court shall be guided by the two (2) issues proposed by the learned counsel for the Appellant in the determination of this appeal.
ISSUE ONE (1)
Whether the learned trial judge Coram M. B. Idris J, was right when he held that the judgment of the Court dated the 13th day of October, 2010 was a final judgment which can only be set aside on appeal (Ground 2 of the grounds of appeal).
Learned counsel to the Appellant contended that, the refusal of the learned trial judge to set aside his ruling of the 2nd March, 2012 was wrong. The said ruling is sequel to the learned trial judge judgment dated 13th October, 2010, which was not a final judgment, and such capable of being set aside by the learned trial judge upon the application of the Appellant. Our contention here is that, the judgment of the learned trial judge dated 13th October, 2010 did not resolve any of the issues presented for his consideration, and as contained in the Appellant’s motion notice, to enforce his fundamental human right dated the 10th day of June, 2010. The judgment was at best, a default judgment, inchoate inconclusive and undeterminable
of the rights of the parties before the lower Court. There was no consideration of the competing interest, obligation, objections and evidence of the parties. The decision did not determine the Appellant’s case on the merit as the case was erroneously struck out without jurisdiction. Judgment cannot be final, once it does not affect the status of the parties for whichever side the decision may be given. See USUNG v. NYONG (2010) 2 NWLR (Pt. 1177) 83 at 114-115, paras. H-B; OGBORU v. IBORI (2005) 13 NWLR (Pt. 942) 319; U.T.C. (NIG) LTD v. J.P. PAMOTEI (2002) FWLR (Pt. 129) 1557 at 1623 paras. B-D pp. 1623-1624 paras. G-A; OGUNYADE v. OSHUNKEYE (2007) ALL FWLR (Pt. 389) 1179 at 1189 paras. B-C IP. 1190 paras. B-C; ATTORNEY-GENERAL OF FEDERATION v. ABUBAKAR (2007) ALL FWLR (Pt. 375) 405 at 457-458 paras F-D.
?Learned counsel further submitted that, the learned trial judge in his judgment struck out the Appellant’s application to enforce his Fundamental Human Rights without jurisdiction when he predicated his judgment on the fact that, “the present application is supported by an affidavit, but not by a statement”. This was contrary to the express provision of
Order XV (2) (3) of the Fundamental Right Rule 2009. In paragraphs 3 (E-J) of his affidavit in support of his motion on notice to set aside the judgment of the learned trial judge dated 13th day of October, 2010, it was thereat deposed to and in favour of the Appellant, the various reasons why the null judgment of the Iearned trial judge should, and ought to be set aside. (See pages 185-186 of the records). The above averments were never denied by the Respondents, nor did the learned trial judge, in his ruling appealed against disputed the fact that, leave was obtained by the Appellant to enforce his Fundamental Human Rights on the 4th day of June, 2009. Leave was granted by Honourable Justice Tijjani Abubakar to enforce his Fundamental Rights. See the case of VULCAN CASES LTD v. G.F.I.G. (2001) FWLR (Pt. 53) at 31 paras. D-F; DINGYADI v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 at 91 paras. B-D, ADEMILUYI v. AFRICAN CONTINENTAL BANK LTD (1965) NMLR 24; OBIMONURE v. ERINOSHO (1966) 1 ALL NLR 250; WEST AFRICAN AUTOMOBILE & ENGINEERING CO. LTD v. AJANAKU (1972) UILR 335; SKEN CONSULT (NIG) LTD v. UKEY (1981) 1. SC; ADEGOKE MOTORS LTD v. ADESANYA (1989) 3
NWLR (Pt. 109) 250; OKAFOR v. ATTORNEY GENERAL OF ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 659.
Learned counsel further submitted that, it is obvious from the decision of the learned trial judge dated the 13th day of October, 2010 that, the judgment was a default judgment and not on the merit. Therefore, the learned trial judge was wrong when he refused to set aside its default judgment. This is because, the law is clear that, a decision reached by a Court which is a default judgment, can be set aside by the same Court that reached that decision. See FIRST BANK OF NIG PLC v. T.S.A. INDUSTRIES LTD (2010) 15 NWLR (Pt. 1216) 247 at 305-306, paras. H-B; WITT & BUSCH LTD v. DALE POWER SYSTEMS PLC (2007) 17 NWLR (Pt. 1062) 1; FAJINMI v. SPEAKER WESTERN REGION HOUSE OF ASSEMBLY (1962) 1 SCNLR 300; OKE v. AIYEDUN (1986) 2 NWLR (Pt. 23) 548. The Court becomes functus officio when it has given a judgment or made an order on the merit. See ENE v. ASIKPO (2010) 10 NWLR (Pt. 1203) 477 at 513 paras C-D, 516 paras H. In the instant case, the learned trial judge never decided the case of the abridgment/infringement of the fundamental human rights of the appellate in his
default judgment dated 13th October, 2010. We urge this Court to set aside the said default judgment.
In his reply to the submission above, the learned counsel for the 4th Respondent contended that, the Appellant’s application for the enforcement of his fundamental rights has been argued by counsel to both parties. However, the learned trial judge considered the issue of whether the appellate had properly invoked the jurisdiction of the Court by compliance with Order 11 Rule 3 of the Fundamental Rights Enforcement Procedure Rules 2009 which is the extant applicable rules of Court. The learned trial judge upon being satisfied that Appellant had not complied with this mandatory rule of Court struck out the Appellant’s application. On the test to be applied whether the judgment or order of a first instant Court are final or interlocutory. See AKINSANYA v. U.B.A. LTD (1986) 4 NWLR (Pt. 35) 273; BOZSON v. ALTRINCHAM (1903) 1 Q.B. S73. The trial Court having heard the application which was argued by counsel to parties before arriving?at the decision that, Appellant did not properly invoke the jurisdiction of the Court for non compliance with the Order 11 Rules
3 Fundamental Rights Enforcement Procedure Rules 2009 struck out the application is final judgment as there was nothing more to be done as regards the right of the parties, the application can no longer be heard the second time as sought by the Appellant. The Court had terminated the suit and there is no longer any issue between the parties to be considered by the Court. The judgment of 13th October, 2010 was a final judgment that can only be set aside on appeal. See also ALOR v. NGENE (2007) 2 S.C. 1; AKINSANYA v. U.B.A. (supra) on factors to be considered before a Court can set aside its judgment, see TOMTEC NIG LTD v. FEDERAL HOUSING AUTHORITY (2009) 12 S.C. (Pt. 162; TOM v. AMEH (L992) 1 NWLR (Pt. 217) 306. The learned trial judge was right to have dismissed the Appellant’s motion dated 28th February, 2011 in the ruling of 2nd March, 2012. We urge the Court to resolve this issue against the Appellant.
On the part of this Court, the submissions above are carefully examined. The main contention of the Appellant in this appeal is that, the Appellant then the Applicant at the Court of trial, was granted leave to enforce his Fundamental Human Right vide an
ex-parte application on the 4th June, 2009. There was later a change in the Constitution of the Court, prior to the hearing of the same application, but on notice. Secondly, the law under which the first ex-parte application, the Fundamental Human Rights (Enforcement Procedure) Rules 1979 was repealed and a new set of rules enacted and it came into effect on 1st day of December, 2009, while the motion on notice was still pending. The learned trial judge on the 13th October, 2010 without inviting the parties to address the Court on the jurisdiction of the Court, considered the current position in the new law, and suo motu in his judgment, struck out the application of the Applicant on the ground that, the present application is supported by an affidavit, not a statement. The Appellant applied to the trial Court to set aside this ruling. The Court of trial refused the application to set aside in a ruling dated 2nd March, 2012. Dissatisfied with the refusal to set the ruling earlier, the Appellant entered this appeal. The Appellant had argued that, the ruling of the 2nd March, 2012 did not resolve any of the issues presented for consideration, and at best only
constituted a default judgment. The 4th Respondent on the contrary maintained that, the judgment of the learned trial judge delivered on 13th October, 2010 which is at pages 171-180 of the records. It is clear that, the Appellant’s application for the enforcement of his Fundamental Rights has been argued by counsel to both parties. The learned trial judge considered the issue of whether the Appellant had properly invoked the jurisdiction of the Court by compliance with Order 11 Rule 3 Fundamental Human Right Enforcement Procedure Rules 2009, which is the extant applicable Rules of Court. The learned trial judge upon being satisfied that, Appellant had not complied with this mandatory rule of Court struck out the Appellant’s application.
The main issue here is that, the Appellant’s motion on notice, which was pending before the Court, to be determined, and brought under the provisions of the old law, is it caught up by the provisions of the new law? The bane of the decision of the Court of trial is that, since the application of the Appellant then before it was not heard and determined before the enactment of the new law, that application can only succeed
if, and only, when it complies with the requirement of the extant law in question. The Appellant had predicated his motion on notice based on the provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979, which requires such an application be supported by an affidavit. The new enactment, the Fundamental Rights (Enforcement Procedure) Rules 2009 now requires such an application on notice to be supported by a statement, since the application to be determined in the year 2010 was supported with an “affidavit” as against a “statement” as required by the enactment, which came in, in 2009, the learned trial Court treated that application as irregular and struck it out.
Firstly, let me mention here and now that, the Fundamental Rights (Enforcement Procedure) Rules is law and not simply a Rules of Court procedure. The law is settled on the issue of commencement of action at the time it was filed, the law that governs such an action is the law at the time of filing such an action and not the extant law prevailing after the commencement of such an action. This position had, since been settled by the old Supreme Court. See MUFUTAU ALAWODE
& ORS v. M. A. SEMOH (1959) 4 FSC 27 at pages 29-30. The then F.S.C. stated as follows:
“The test for the commencement of an action both according to English rules and the local rules of Court appears to me to be this: has the Plaintiff done all that is required of him by law to commence this action? In England, all he has to do is to buy the writ and endorse it. In Nigeria, he has to make an application to the registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is, a domestic affair of the Court and its staff. From the time the Plaintiff in Nigeria delivers his application to the Registrar (provided it is not an action in which, the consent of the Court is necessary before the writ is issued) and he pays the necessary fees it will, in my view, be correct to say that an action or suit has been commenced.
This case involved a claim under the Fatal Accidents Act 1846 which requires that, action must be commenced within twelve calendar months after the death of the victim. The accident in this particular case occurred on August 2, 1956. The writ of summons was filed on August 2, 1957. It was
signed by on August 8, 1957. The defence submitted that, the action was statute-barred. The objection was over ruled on appeal to the Supreme Court.”
This Court, the Court of Appeal followed this decision of the Supreme Court in SADIKU v. ATTORNEY GENERAL OF LAGOS STATE (1994) 7 NWLR (Pt. 355) 235 at 248 per Akanbi J.C.A. (as he then was) stated as follows:
“It is perhaps important to also emphasize that, Courts have always learned in favour of preservation of the Fundamental Right of the Citizen whether as regards life or property, and will not therefore lightly drive away from the judgment seat, any citizen with a complaint that, his right has been infringed, FAJINMI v. THE SPEAKER, WESTERN HOUSE OF ASSEMBLY (1962) 1 S.C.N.L.R. 300 (1962) 1 ALL N.L.R. (Pt. 1) 205.”
Again, this Court per Onalaja J.C.A. (as he then was) in BANK OF BARODA v. IYALABAMI LTD (1998) 2 NWLR (Pt. 539) 600 at 613 stated as follows:
“FALOBI v. FALOBI (1976) 1 B.M.L.R. 169 (1976) 9-10 S.C.; OJAH v. OGBONI (1996) 6 NWLR (Pt. 454) 272; MADESON IKENI & ANOR v. CHIEF WILLIAMS AKUMA EFOMO & 2 ORS (1997) 4 NWLR (Pt. 499) 318 all stated that, where a party approaches
the Court by reference to citation of a wrong law, the Court should do substantial justice by deciding the case on the merit.”
The case of the present Appellant is more worrisome as he had approached the Court, seeking for the enforcement of his Fundamental Human Right. It was wrong on the part of the trial Court, to strike out his application on a flimsy excuse, which was not even the law, when he filed his application, that, a statement is required and not an affidavit, which was the law at the time of his application. The Appellant, no doubt has suffered a denial of justice by the trial Court, having done all that is required of him to do under the law at the time of his commencement of his case. The new enactment relied upon by Court notwithstanding. The judgment of the learned trial judge dated the 13th of October, 2010 was arrived at in error, and this Court cannot therefore allow it to stand.
The next leg of this issue is, whether the same Court, which gave the judgment on the 13th October, 2010, can by itself set it aside based on the application of the Appellant to do so. The learned trial Court on the 2nd March, 2012 ruled and refused the
application to set aside its judgment of 13th October, 2010, on the premise that, it had become functus officio. The question here is that, can the trial Court set aside or vary this judgment? This Court has examined the judgment of the trial Court of the 13th October, 2010 on page 177 of record, after setting out the Applicant’s application (Plaintiff) now Appellant, the record bears that, “the application of the Applicant was supported by an affidavit deposed to by Victor Anozie, the Applicant. A written address was attached to the affidavit. The 5th Defendant filed a counter affidavit and a written address on the 6th of December, 2009. The Applicant filed a reply to the 5th Defendant’s counter affidavit on 19th February, 2010. On 22nd February, 2010, the Applicant’s counsel filed a further written address. On the 17th of May, 2010, the 5th Respondent filed a further counter affidavit and a further written address in opposition. When the matter came up for hearing on the 12th day of October, 2010, counsel adopted their respective written addresses as their argument in respect of this application for the enforcement of Fundamental Rights. From the above
portion of the judgment quoted, it is incorrect, as the learned counsel to the Appellant is presented it that, the learned trial Court delivered a default judgment, without hearing the parties, and suo motu struck out the Appellant’s application. The parties were duly heard before arriving at the decision she did by the trial Court. Having settled this point, can the trial Court set aside this judgment, whether the decision was rightly or wrongly arrived at. The issue of whether, the trial Court can set aside or vary its own judgment, is a settled law. The law is that, the powers of the High Court or Federal High Court as in this case, to correct its own record are set out in the various rules of Court applicable to that Court. What is of general application to all the rules is that, clerical mistakes, in judgments or orders or errors arising therein from any accidental slip, or omission may at any time be corrected by the Court on motion or summons without an appeal. The rule envisages the correction or amendment of (a) clerical mistakes and (b) errors arising from any accidental slip or omission. See the Supreme Court case of DANIEL ASIYANBI & ORS v.
EMMANUEL AWE ADENIJI (1967) 1 ALL N.L.R. 82 at pages 87 and 89. The Apex Court has further clarified this position in the more recent decision of: AUTO SUPPLY CO LTD v. AKIBU (2006) 6 S.C. 1. On correction of errors on matters of law in a judgment, as is with the present application. The Supreme Court stated:
“Where there had been an error or omissions by a Court on matters of law, the Court would not have jurisdiction to correct such errors or omissions even though apparent on the face of the judgment or order. In other words, the extent and scope of the exercise of power of Court to correct clerical error, accidental slips or omissions should not be used as an excuse to review, reverse or rehear the case a fresh.”
No doubt that, decision of the trial Court on the Appellant was on a matter of law, the trial Court was therefore in no position to set it aside, having become functus officio to do so. It is also wrong to suggest as the Appellant did in their argument that, the judgment of the trial Court of the 13th October, 2010 was a nullity. The Appellant had urged this Court to set it aside. The Supreme Court has set out a guiding principle for
setting aside judgment see WILLAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C. 145; (1982) 1-2 S.C. (Reprint) 70 as follows:
1. The reason for the default in filing the defence.
2. Whether there has been undue delay in making the application so as to prejudice the Respondent.
3. Whether the Respondent would be prejudiced or embarrassed upon on an order for rehearing being made so as to render it unequitable to permit the case to be re-opened and
4. Whether the Applicant’s case is manifestly unsupportable. OGOLO v. OGOLO (2006) 2 S.C. (Pt. 1) 61.
Also, let me add that, the Appellant has not shown that, the judgment reached by the trial Court was a nullity. There was no doubt an error, but the trial Court mistakenly thought the law to be applied was the extant law and not the earlier law which the Appellant’s application was predicated upon. An act that is void is, always incurably bad, and that is when there will be no need for an order of the Court to set it aside. See: K. AKPENE v. BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 SC 47 at pages 58-59; ALHAJI LABARAN NAKYAUTA v. ALHAJI IBRAHIM MAIKIMA & ANOR (1977) 6 SC
51 at 78. On a final note, this issue succeeds partially.
On the issue two (2), whether the trial judge Coram M. B. Idris J, was right when he refused to set aside its null judgment dated the 13th day of October, 2010, given without jurisdiction thereby infringing on the right of the Appellant to fair hearing, has become an academic question in view of the resolution by this Court to issue No. 1. This Court had resolved that the trial Court cannot set aside the said judgment, but this Court can do that on appeal such as this. This Court had adjudged in issue No. 1 that, the judgment of the trial Court of the 13th October, 2010 was arrived at in error and that, this Court cannot allow it to stand and it is hereby set aside. However, as applied by the Appellant, that Court cannot set aside that judgment as it had become functus officio, the setting aside can only be done by this Court, which it has just exercised. Also this Court did not find the judgment to constitute a nullity.
On the whole therefore, this appeal succeeds in part, and this Court makes the following orders:
1. The judgment of the trial Court delivered on the 13th October, 2010 is
hereby set aside by this Court.
2. The motion on notice of the Appellant to enforce his Fundamental Human Rights dated 10th June, 2009 and filed on 12th June, 2009 remains valid.
3. The said motion on notice is to be heard and determined by another judge of the Federal High Court, other than Honourable Justice M. B. Idris.
4. The case file is to be remitted back to the Honourable Chief judge of the Federal High Court for an immediate action.
5. I make no order as to costs.
CHINWE EUGENIA IYIZOBA, J.C.A.:I read before now the judgment just delivered by my learned brother, SIDI DAUDA BAGE JCA. I am in full agreement with the reasons given and the conclusions reached therein. I abide by the consequential orders in the judgment.
JAMILU YAMMAMA TUKUR, J.C.A.:
I had the privilege of reading in draft the lead judgment written and delivered by my learned brother SIDI DAUDA BAGE, JCA, with which I concur with nothing to add.
Appearances
Chief N. O. ImohFor Appellant
AND
A. M. Makinde with him, O. S. Ishola for 4th RespondentFor Respondent
