GBENGA LAWAL v. THE STATE
(2019)LCN/13177(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/IL/C.M.34/2019(R)
RATIO
COURTS: WHETHER AND WHEN A COURT CAN SET ASIDE ITS OWN JUDGMENT
In the recent case of APC vs. Nduul (2018) ALL FWLR (pt. 940) 59 @ 75, the Supreme Court, per Galinje JSC stated:
As a general rule, every Court of record has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision where the judgment or decision is null and void ab initio or where there was a fundamental defect in the proceedings which vitiated and rendered same incompetent and invalid.PER HAMMA AKAWU BARKA, J.C.A.
JUSTICE
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
GBENGA LAWALAppellant(s)
AND
THE STATERespondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Lead Ruling): The present application is a sister application to the application just taken in Appeal No: CA/IL/C.M.33/2019, wherein the applicants by way of motion brought on notice filed on the 26th of February, 2019 and brought pursuant to Order 20 Rule 4 of the Court of Appeal Rules 2016 and the inherent jurisdiction of this Court prayed for:
1. An order of this Court setting aside its judgment of the 16th day of November, 2018 and setting the appeal down for hearing/judgment on the merit.
2. And for such further order(s) that this honorable Court may deem fit to make in the circumstance of this case.
The grounds in support of the application are namely;
a. The Honourable Court earlier granted the appellant/applicant an order of extension of time within which to file his notice of appeal which was complied with.
b. In delivering its judgment, the honourable Court did not avert its mind to the earlier order given.
c. The honourable Court in error struck out the appeal as having been filed out of time.
In support of the application is an affidavit of 4 paragraphs
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deposed to by Taiwo Olubowale a litigation clerk in the law office of Ronke Adeyemi & co, the counsel representing the appellant/applicant. Four exhibits titled exhibits A D were hinged on the motion papers.
Jimoh Adebimbe Mumini, the learned Director Public prosecution filed a counter affidavit of six paragraphs, deposed to by Mallam Babatunde Lawal, a litigation clerk in the office of the Attorney General, Kwara State.
The facts which gave rise to the instant application are not in any way different from those captured in the earlier application, and also ably captured by paragraph 3 of the affidavit in support of the application, as well as paragraph 4 of the counter affidavit. In short, the applicant/appellant was arraigned before the High Court of Kwara State for the offences of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 221 of the Penal Code, and was convicted and sentenced to death by hanging on the 15th of February, 2016. The appellant/applicant for reasons of impecuosity, could not appeal his conviction within time, by reason of which the learned counsel Ronke Adeyemi, pro bono
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came to his assistance. The learned counsel on behalf of the applicant could not appeal the judgment of the lower Court within the time prescribed by law, and thereby filed a motion on notice on the 17th of November, 2017 for the extension of time within which to appeal the said judgment, and which application was granted on the 20th of February, 2018, in suit No. CA/IL/C37/2018.
However as in the earlier case and by inadvertence of counsel, the order extending time within which to appeal the judgment granted by the Court was not exhibited in the record of appeal, wherefore the respondent upon being served the appellants brief of argument, filed a notice of preliminary objection alongside the respondents brief. It observed that the applicants did not file any response to the preliminary objection, and in adopting their respective briefs on the 22nd October, 2018, Mr Mumini the learned DPP for the State, withdrew his preliminary objection contained at pages 2 of the brief, in urging the Court to dismiss the appeal.
In the judgment of the Court delivered on the 16th day of November, 2018, this Court inadvertently relied on the preliminary objection
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raised in the respondents brief and thereby reached the conclusion that:
The second notice of appeal in question is equally hereby struck out for having been filed out of the time prescribed by the law without the leave of Court.
A single issue was crafted by the applicant in their address in support of the application filed on the 19th of March, 2019. It reads:
Whether the appellant/applicant is entitled to an order of this Honourable Court setting aside its judgment of the 16th November, 2018 and setting the appeal down for hearing/judgment on merit considering the circumstances of this case.
It is the contention of the learned counsel that the applicant is entitled to the discretion of the Court in granting the application as the rules of Court allows it. Relying on the provisions of Order 20 Rule 4 of the Court of Appeal Rules 2016, to the effect that:
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.<br< p=””></br<>
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Learned counsel submits that the present application falls within error occasioned by accidental slip and or omission for which the Court has the power to review. Learned counsel relying on the decisions of Okafor vs. AG Anambra State (1991) 6 NWLR, Gitto Constructioni Generali (Nig) Ltd vs. Innovate & Co Enterprises & Anor (2015) LPELR-25725 CA, Igwe vs. Kalu (2002) LPELR 1455(SC), urged the Court to exercise its discretion in favor of the applicant and to grant the application in the interest of Justice taking into consideration the decision of the apex Court in the case ofBankole vs. Dada (2004) 12 FWLR (pt. 241) 628 @ 673 674, and Ogolo vs. Ogolo (2000) 14 NWLR (pt. 686) 157 @ 163.
In opposing the application, the state filed a counter affidavit of six paragraphs as earlier stated. In the written address filed in support of the counter affidavit filed on the 1st day of April, 2019, the learned DPP adopted the sole issue distilled by the applicant, and argued that once a Court delivers its judgment, it becomes functus officio, which means that he cannot revisit the judgment with a view to reviewing it. The cases of Uba vs. Ukachukwu
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(2006) ALL FWLR (pt. 337) 515 @ 521, Iyela vs. Nig. Army (2005) ALL FWLR (pt. 280) 1561, and Timothy Adeilo Adefulu vs. Chief O.O. Okulaja & 6 Ors (1998) 5 NWLR (pt. 550) 435 were cited and relied upon to support the legal position.
He concedes to the fact that a Court can set aside its judgment under certain circumstances, and that the rule of this Court also makes provision for circumstances under which a Court can vary its judgment, but submits that none of the conditions or circumstances enumerated qualifies for the Court revisiting the judgment under consideration.
Further conceding to the fact that the applicant was granted extension of time within which to file his notice of appeal, that notice was not exhibited at the hearing of the appeal. He submits also that the refusal to exhibit the said order in the record of proceedings, leading to the hearing of the appeal was a flagrant abuse of Court process. The case of Lekwot vs. Judicial Tribunal (1997) 8 NWLR (pt. 515) 22 @ 35 relied upon. Further emphasizing that applicants failure to exhibit the notice of appeal filed with the leave of Court, amounted to a clear abuse of Court process and
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the applicant unworthy to benefit therefrom, counsel cited the case of FRN vs. Tawakalitu (2013) ALL FWLR (pt. 695) 325 @ 331 to that regard.
Conclusively, learned counsel urged the Court not to set aside its judgment delivered on the 16th of November, 2018 as same was based on facts and materials placed before the Court by the parties.
I do agree with the learned counsel on both sides that the issue that calls for determination is whether the appellant/applicant is entitled to an order of this Court setting aside its decision of the 16th of November, 2018 and setting the appeal down for hearing/judgment on merit considering the circumstances of the case.
I did state in the earlier ruling that the circumstances that led to the present application has been well spelt out, and at the risk of being repetitious, the application to set aside the judgment delivered is consequent upon the judgment of this Court premised on the fact that no leave of Court was sought extending time within to file a notice of appeal as required under Section 24 (2) (b) of the Court of Appeal Act 2004. Whereas it is not in contention that the requisite leave of Court was
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indeed applied for and granted, which order to that effect was not reflected in the records of appeal nor the attention of the Court drawn to such an order, and therefore falls within the exceptions to the principle of functus officio, and by the provisions of Order 20 Rule 4 of the rules of this Court possessed of the power to vary same, the state on the other hand holds the view that the Court is functus officio having determined the case on the materials and case presented before it. The state may not be far from stating the truth, because from the processes set before the Court leading to the judgment sought to be set aside, no inkling of the fact that leave was indeed sought for and obtained was presented to the Court, and the Court was right in arriving at the decision being complained about. Equally it must be stated that had the Court been intimated that indeed its leave was obtained before the filing of the notice of appeal, its decision would have been based on the merit, as the Court would have been competent in entertaining a competent notice of appeal.
The applicant relying on the decisions of this Court in
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Gitto Constructioni Generali (Nig) Ltd vs. Innovate & Co Enterprises & Anor (supra) and Igwe vs Kalu (supra), a decision of the Supreme Court, urged upon the Court to utilize its inherent powers to set aside its judgment in the circumstance in which it has found itself. I am inclined to agree with the learned counsel for the applicant in that regard. This is more so when the Courts judgment sought to be set aside was not a judgment obtained on the merit. See the cases of ACB Plc vs. Losada (Nig) & Anor (1995) LPELR 205 (SC), Evans vs. Bartlam (1937) AC 473 @ 480, and Grinshaw vs. Dunbar (1953) 1 QB 408 @ 416.
In the recent case of APC vs. Nduul (2018) ALL FWLR (pt. 940) 59 @ 75, the Supreme Court, per Galinje JSC stated:
As a general rule, every Court of record has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision where the judgment or decision is null and void ab initio or where there was a fundamental defect in the proceedings which vitiated and rendered same incompetent and invalid.
Also in the case of Exxon Mobil Corp vs. Archianga (2018) 14 NWLR (pt. 1639) 229 @ 247,
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reiterated the position of the law thus:
Learned senior counsel for the appellant argued forcefully that the trial Court was wrong in reversing its decision of 1st November, 2012, where it exercised its discretion to hear and determine the appellants points of law by granting prayer 1. I do not think the trial Court was wrong, indeed as a general rule, every Court of record has the inherent jurisdiction on application and appropriate cases and circumstances to set aside its judgment or decision. This jurisdiction may be exercised where for instance the judgment or decision sought to be set aside is null ab initio or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid. See Alh. Taofeek Alao vs. ACB Ltd (2000) 2 SCNQR 1067; Salami Omokewu & Ors vs. Abraham Olabanji (1996) 3 NWLR (pt. 435) 126; Skenconsult (Nig.) Ltd vs. Ukey (1981) 1 SC 6. In such a case the Court may ex-debito justitiae set aside its decision and may make necessary consequential orders that the Justice of each individual case demands.
Even though it cannot be said that the Courts judgment sought to be
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set aside can be said to be a null judgment, the failure to consider the case on its merit, more so when the notice of appeal declared incompetent by the Court through no fault of it, is indeed competent, renders the application made one upon which the Courts discretion ought to be exercised in its favor. I hold on to this view particularly in that the instant appeal being founded on a criminal case, and the other option open to the applicants was to have appealed the decision, which could have further delayed the hearing of the appeal on the merit. I fully agree with the applicants counsel in holding that the duty of a Court of law is to decide the rights and obligations of the parties before it as against punishing litigants for mistakes committed in the conduct of proceedings. See Bankole vs. Dada (supra).
From the foregoing, I am of the firm view that the discretion of this Court setting aside its judgment delivered on the 16th of November, 2018 ought to be and is hereby granted. The said judgment as delivered is discountenanced by me, with an order that the hearing of this appeal be taken afresh before the same panel of this Court.
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IBRAHIM SHATA BDLIYA, J.C.A.: Having had the advantage of reading before now the draft copy of the leading ruling by my lord, Hamma Akawu Barka JCA, I totally concur with the reasoning and the decision arrived at in granting an order setting aside the judgment delivered on the 16th day of November, 2018 by this Court. I abide by the order made consequentially.
BALKISU BELLO ALIYU, J.C.A.: I have read in draft the Ruling of my learned brother, Hamma Akawu Barka JCA just delivered and I entirely agree that the circumstance disclosed in this application is one of the exceptions to the general rule that a Court of law is functus officio once it delivered its judgment in a matter. I therefore adopt the reasoning and the conclusion reached in the lead ruling and adopt same, including the consequential orders, as mine in granting this application. It is hereby so ordered that the hearing of the appeal be taken afresh by this Court.
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Appearances:
Oluronke Adeyemi with him, Kunle Ajayi and Olawatomi Adetula.For Appellant(s)
Abdulmumeen Busari (SSC)For Respondent(s)
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Appearances
Oluronke Adeyemi with him, Kunle Ajayi and Olawatomi Adetula.For Appellant
