EDO STATE HOUSE OF ASSEMBLY & ORS v. HON. BLESSING AGBEBAKU
(2018)LCN/12482(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/232M/2013(R)
RATIO
JURISDICTION: THAT THE COURT CANNOT SET ASIDE DECISION OF COURT OF COORDINATE JURISDICTION
“The general position of the law is that a Court cannot set aside its decision or the decision of a Court of coordinate jurisdiction made on the merits. However the Court has inherent power to set aside its decision when same are later found to be a nullity, obtained by fraud or mistakenly given under the impression of parties’ consent. That power does not extend to a Court sitting on appeal over its own decisions. See IGWE v. KALU (2002) 14 NWLR Pt. 787 Pg. 435 at 455.This discretion is provided for by Order 6 Rule 11 of the Court of Appeal Rules 2016 which states as follows:-
‘An application to set aside any judgment or ruling shall not be brought unless it is filed within 14days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.’…In a plethora of cases, this Court and the Supreme Court have held that the inherent power of a Court cannot be invoked to enable the Court review its own judgment or the judgment of a Court of coordinate jurisdiction. See OBIOHA v. IBERO &ANOR (1994) NWLR Pt. 322 Pg. 503- a decision of the full Court of the Supreme Court. See ALAO v. ACB LTD (2000) 9 NWLR Pt. 672 Pg. 264. In fact once a Court delivers its judgment or ruling, subject to the ‘slip rule’ principle, that Court becomes functus officio and cannot revisit the issue by setting aside its own judgment and re-hearing the parties. See ADIGUN v. ATTORNEY GENERAL OYO STATE (NO. 2) (1987) 2 NWLR Pt. 56 Pg. 197.”PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. EDO STATE HOUSE OF ASSEMBLY
2. MR. ANERU BELLO
(CHAIRMAN EDO STATE
GOVERNMENT PROPERTIES
COMMITTEE)
3. ATTORNEY GENERAL OF EDO STATE Appellant(s)
AND
HON. BLESSING AGBEBAKU Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling):
This is a ruling in respect of the motion on notice filed by the Applicants on 4/4/18 praying this Court for the following orders:
1. An order of this Court enlarging the time within which the Applicants may apply to set aside the ruling/decision of this Honourable Court delivered on 17/3/2017 in Appeal No CA/E/283M/ 2013: Edo State House of Assembly & Anor v. Hon. Blessing Agbebaku, dismissing the Applicants? application for leave to appeal against the judgment of the National Industrial Court of Nigeria, Enugu, delivered on 30/1/2013, the time allowed by the rules of this Honourable Court having expired.
2. An order setting aside the ruling/decision of this Honourable Court delivered on 17/3/2017 in Appeal No. CA/E/283M/2013: Edo State House of Assembly & Anor v. Hon. Blessing Agbebaku dismissing the Applicant?s application for leave to appeal against the judgment of the National Industrial Court of Nigeria, Enugu, delivered on 30/1/2013;
3. An order granting leave to the Applicants to appeal against the judgment delivered by the National Industrial Court of Nigeria, Enugu, delivered on 30/1/2013 in NIC/ABJ/68/2012: Hon. Blessing Agbebaku v. Edo State House of Assembly & Anor.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The motion was supported by an affidavit of 11 paragraphs to which was attached the judgment of the trial Court delivered on 30/1/13; the ruling of this Court refusing to grant leave to appeal on 17/3/17 and the proposed notice of appeal.
The grounds on which this application has been brought is set down below:
1. The Applicants filed an application dated 14/5/2013 for leave to appeal against the judgment of the National Industrial Court of Nigeria, Enugu, delivered on 30/1/2013 in NIC/ABJ/68/2012: Hon. Blessing Agbebaku v. Edo State House of Assembly & Anor.
2. This Honourable Court dismissed the Applicants application for leave to appeal on 17/3/2017 on the grounds that the Court of Appeal has no jurisdiction to entertain the appeal as none of the Applicants] Grounds of Appeal raised questions of infringement of fundamental rights as contained in Chapter IV of the Constitution and that it has no jurisdiction to grant leave to appeal.
3. The Supreme Court on 20/6/2017 in the case of SKYE BANK PLC v. IWU (2017) LPELR held that the Court of Appeal has the Jurisdiction to hear appeals from the National Industrial Court. That appeal not bordering on fundamental rights will have to be with leave of Court of Appeal. Also that no further legislations from the National Assembly is needed to confer jurisdiction on the Court of Appeal to hear appeals from National Industrial Court.
4. The said decision of this Court is thus contrary to the stipulations of the Constitution as interpreted by the Supreme Court.
5. The Court of Appeal being the final Court in respect of appeals from the National Industrial Court hence this application in the interest of justice and not to foreclose the Applicants’ constitutional guaranteed right of appeal.
At the hearing of the appeal, Mr. Odibeli of counsel for the Applicants argued that this Court should exercise its discretion in favour of the Applicants in order to ensure that the right of appeal would not be forever taken from the applicants. He urged the Court to do substantial justice.
Mr. Isenalumhe for the Respondent argued that this motion is an abuse of Court process. He drew our attention to the Respondent’s counter affidavit filed on 25/4/18 and that there is a pending appeal entered at the Supreme Court by the Applicants on 18/9/17 as Suit No. SC/747/2017. Counsel conceded that a notice of withdrawal had been filed but insisted that the appeal had not been struck out but still pending at the Supreme Court. Counsel argued that this court lacks jurisdiction because the decision sought to be set aside is final and that this Court is now functus officio as it cannot set aside its own judgment made on the merit. Even if the Court were wrong, only thing is that the decision cannot be made a precedent. Counsel cited ONYEKWELI v. INEC (2009) ALL FWLR Pt. 490 Pg. 738 at Pg. 750; ONUAGULUCHI v. NDU (2001) FWLR Pt. 45 Pg. 740 at 757-758; ADIGUN v. ATTORNEY GENERAL OYO STATE (1987) ALL NLR Pg. 328 at 340; NIGERIA ARMY v. IYALA (2009) ALL FWLR Pt. 452 Pg. 1012 at Pg.1026-1228. He urged the Court to dismiss the application.
Odibeli Esq., replied that the notice of withdrawal took effect from the date it was filed. Counsel cited ETERNAL TRUST v. PROF. TAMUNO (2000) LPELR 6830 (CA). Counsel submitted that the cases cited by Respondent?s counsel are election petition cases which are irrelevant in the circumstance of this case.
OPINION
The general position of the law is that a Court cannot set aside its decision or the decision of a Court of coordinate jurisdiction made on the merits. However the Court has inherent power to set aside its decision when same are later found to be a nullity, obtained by fraud or mistakenly given under the impression of parties’ consent. That power does not extend to a Court sitting on appeal over its own decisions. See IGWE v. KALU (2002) 14 NWLR Pt. 787 Pg. 435 at 455.This discretion is provided for by Order 6 Rule 11 of the Court of Appeal Rules 2016 which states as follows:-
‘An application to set aside any judgment or ruling shall not be brought unless it is filed within 14days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.’
In this case, the ruling of this Court was delivered on 17/3/17 while this motion was filed on 4/4/18 more than a year later. Let us even not consider the ruling of this Court, let us consider the judgment of the Supreme Court which is the basis of the Applicant?s attempt at re- activating the jurisdiction of this Court. The Supreme Court judgment in SKYE BANK PLC V. IWU (2017) LPELR 42595 was delivered on 20/6/17. Paragraph 6 of the affidavit in support of this motion shows clearly that the refusal to grant leave at the time was wrong as the subsequent judgment of the Supreme Court shows that leave to appeal where meritorious should have been granted.
However, it took the Applicant more than 8 months thereafter to bring this application. Nothing was stated in the 11 paragraph affidavit and the further affidavit as reason for failing to bring the application expeditiously.
Much was made by learned Respondent?s counsel of the pending appeal at the Supreme Court. However, the further affidavit of the Applicant in paragraph 4 cleared that issue up. The state of the law is that where a party has filed a motion to withdraw an appeal or a process, that process stands withdrawn even without a specific formal order to that effect.
Now, Order 20 Rule 4 of the Court of Appeal Rules 2016 provides as follows:-
‘The Court shall not review any 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 effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.’
There is no doubt that a Court cannot review its decision once delivered except in circumstance provided by Statute or the Constitution.
In a plethora of cases, this Court and the Supreme Court have held that the inherent power of a Court cannot be invoked to enable the Court review its own judgment or the judgment of a Court of coordinate jurisdiction. See OBIOHA v. IBERO &ANOR (1994) NWLR Pt. 322 Pg. 503- a decision of the full Court of the Supreme Court. See ALAO v. ACB LTD (2000) 9 NWLR Pt. 672 Pg. 264. In fact once a Court delivers its judgment or ruling, subject to the ‘slip rule’ principle, that Court becomes functus officio and cannot revisit the issue by setting aside its own judgment and re-hearing the parties. See ADIGUN v. ATTORNEY GENERAL OYO STATE (NO. 2) (1987) 2 NWLR Pt. 56 Pg. 197.
There is no pretence here that the rules of natural justice were breached or a clerical error was made in the orders of the Court. The complaint here is that a decision had been made per incuriam which we are now been called upon to correct by giving the Applicants leave to appeal to this Court in view of the opinion of the apex Court that this Court is vested with requisite jurisdiction to grant the leave in deserving situations. Can we actually reverse ourselves in the peculiar circumstances of this case.
In EDILCON NIG. LTD. v. UBA (2017) LPELR 42342 (SC), the Supreme Court held that an order dismissing an application for extension of time to appeal is not a decision on the merit. The Supreme Court also held that it has wide discretionary power to consider identical application that had been dismissed by it. The apex Court however held the view that this can only be done if the Applicant is able to convince the Court to exercise its discretion in his favour by setting aside its order of dismissal. The Supreme Court relied onPDP v. ASADU (2016) 17 NWLR Pt. 1541 Pg. 215 at 224. Galinge JSC, explained that since the Supreme Court as the final Court has wide discretionary powers, it can consider identical applications that had been dismissed by it.
The Supreme Court in effect approved AMOO v. ALABI (2003) 12 NWLR Pt. 835 Pg.537 at 553 where the Court had held as follows:
‘an order refusing an extension of time within which to appeal is not a decision on the merit. As such it does not constitute in law a bar to further application.’
I must point out to those who must be getting excited at the prospect of litigation ad nauseum that the magnanimity of the Supreme Court is only extended to applications seeking to regularize the standing of parties before the Court. It cannot and with the greatest respect should not extend to where a matter or an appeal has been heard on the merit, otherwise the Courts shall see or hear no end to litigation. The ruling of this Court sought to be set aside is the one refusing extension of time, leave to appeal, etc. to this Court from the National Industrial Court by reason of the opinion of this Court at the time that this Court lacked jurisdiction to entertain the appeal. It was not a decision on the merit of the substantive appeal which had not matured before this Court. This Court is also by law the last Court with respect to the causes of action triable by the National Industrial Court. We are therefore bound by the precedent set by the apex Court to allow parties to re-litigate issues relating to leave to appeal etc. in order to enable parties enter the hallow chambers of justice to ventilate their grievances.
Now back to the prayers before this Court. Even though it appears that this Court can give the Applicant a second bite at the cherry by license of the Supreme Court, it is clear by the pronouncements of the Supreme Court that the prayers sought cannot be granted as a matter of course. There must be reasons for the exercise of the discretion of this Court.
Let me explain what I think the proper process is. Leave to set aside the decision must be prayed for as soon as possible. If the prayer is made outside the time stated by the rules, good reasons must be specifically stated by affidavit evidence to excuse the delay. Where extension of time to apply to set aside and an order setting aside is obtained, on good grounds, the next step is to seek the trinity prayers because appeal from the National Industrial Court is not as of right but with leave of this Court. All the prayers can be contained on the same motion paper.
As I said earlier, no reason has been given for bringing these prayers at this time, several months after it should have been brought. Secondly, even if prayers 1 and 2 were granted, prayer 3 cannot be granted since there is the need for counsel to ask for the grant of the trinity prayers-extension of time to seek leave, Leave to appeal, and extension of time to appeal.
In the circumstances, there being no reason to grant the indulgence of the 1st and 2nd prayers and the 3rd prayer being incompetent, the motion is struck out.
No order as to costs. Application struck out.
JOSEPH TINE TUR, J.C.A.: I agree
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read in draft the ruling of my learned brother, HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, I agree with his reasoning and conclusion therein.
I abide by the consequential orders made therein.
Appearances:
J.I. ODIBELI For Appellant(s)
R.O. ISENALUME For Respondent(s)
