ALFA ADEOSUN v. ALHAJI ISSA AFOLABI
(2018)LCN/11790(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/IL/62/17(R)
RATIO
THE PROVISION OF Order 19 Rule 4, Court of Appeal Rules, 2016
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. per CHIDI NWAOMA UWA, J.C.A.
SITUATIONS WHERE THE COURT WILL SET ASIDE ITS JUDGMENT OR ORDER
There are situations when the Court can set aside its judgment or order. They are:
1. When the judgment is obtained by fraud or deceit either in the Court, or of one or more parties.
2. When a judgment is a nullity, a person affected by an order of Court which can be properly described as a nullity is entitled Ex-debito justitiae to have it set aside.
3. When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.
4. Where the judgment was given in the absence of jurisdiction.
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication per CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ALFA ADEOSUN – Appellant(s)
AND
ALHAJI ISSA AFOLABI – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling):
In the application filed on 25th May, 2018, the applicant prayed for the following reliefs:
1. AN ORDER of this Honourable Court setting aside its order of cost made on 21st February, 2018 against the Appellant/Applicant for his absence in Court.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application was brought are as follows:
i. This Honourable Court vide hearing notice dated 16th November, 2017 adjourned the hearing of this appeal/motion to 15th January, 2018.
ii. Before the 15th January, 2018 another hearing notice dated 5th of December, 2017 was served on the Appellant/Applicant re-scheduling the matter to 30th January, 2018.
iii. On the 30th January, 2018 the Appellant/Applicant was in Court but the Court did not sit.
iv. Later on the 16th February, 2018 another hearing notice dated 5th February, 2018 re-scheduling the matter to 21st February, 2018 was served on the Appellant/Applicant.
v. Meanwhile this Honourable Court on the 15th day of January, 2018 sat and struck out the Appellant/Applicants motion on notice filed on the 30th October, 2017 due to the absence of the Appellant and his counsel.
vi. When the Appellants counsel wanted to move the said Application on 21st January, 2018 he was informed by Court that the said Application has been struck out.
vii. The Appellant/Applicant was not in Court on the 15th day of January, 2018 because he was misled by the Bailiff of this Honourable Court that the matter earlier slated for 15th January, 2018 has been re-scheduled/adjourned to 30th January, 2018.
viii. The Appellant/Applicant absence in Court on the 15th January, 2018 was not deliberate but due to the error of the Bailiff of this Court and which should not be visited on the Appellant/Applicant.
ix. This Honourable Court has the vires to set aside its order orally granted in the interest of fair hearing.
The application was supported by a thirteen (13) paragraph affidavit deposed to by Usman Omotosho, a legal practitioner in the law firm of Lambo Akanbi & Co, the Solicitors defending the Appellant/Applicant in the appeal. Annexed to the affidavit are three (3) Exhibits. Exhibit A, a copy of hearing notice dated 16th November, 2017 against the 15th of January, 2018 for the hearing of the appeal/motion, Exhibit B, hearing notice dated 5th December, 2017 re-scheduling the matter to 30th January, 2018 and Exhibit C, hearing notice dated 5th February, 2018 re-scheduling the matter to 21st February, 2018. The learned counsel to the Applicant urged us to set aside the order of costs made by this Court on 21/2/18.
In opposing the application, the learned counsel to the Respondent relied on the records of this Court. It was submitted that on 15/1/18, the application filed on 30/10/17 was struck out. It was argued that on 21/2/18, when the matter came up for hearing, the learned counsel to the applicant herein was informed that his motion had been struck out. The learned counsel then sought for an adjournment of the appeal which was conceded on terms and costs of N30,000.00 was awarded.
It was submitted that the Court did not penalize the applicant for being absent from Court on 15/1/18 as the costs sought on the date was not granted. Further, that the inherent jurisdiction of the Court to set aside a judgment or order is limited to where the judgment or order is a nullity. It was argued that the order of 21/2/18 is not a nullity. See,OGBU VS. URUM (1981) 4 SC PAGE 1 at 2- 3, BELLO, JSC. We were urged to refuse the application and dismiss it.
In reply, the learned counsel to the applicant submitted that the order of costs can be set aside since it borders on jurisdiction, because the appellant/applicant was not served the Hearing Notice for that day, the earlier Notice having been cancelled by Exhibit B.
From the records of Court the applicants motion on Notice to further amend his Notice of Appeal of 30/10/17, came up for hearing on 15/1/18 but, the Appellant/Applicant and learned counsel were not in Court. It is on record that the learned counsel had been served the hearing Notice for 15/1/18 on 23/11/17 and same was said to have been received by Hassan Fasilat on the said date, Exhibit A attached to the motion paper. The application was struck out for lack of prosecution, see paragraph 7 of the affidavit in support. No cost was awarded against the appellant; the Appeal was adjourned on record to 6/2/2018 for hearing.
In paragraphs 4 and 5 of the affidavit in support of the application, it was deposed as follows:
4. That before the 15th January, 2018 another hearing notice dated 5th of December, 2017 was served on the Appellant/Applicant re-scheduling the matter to 30th January, 2018, a copy whereof is hereby attached as Exhibit B.
5. That I know as a fact that on the 30th January, 2018 the Appellant/Applicant was in Court but the Court did not sit.
By the above deposition in paragraph 4, the learned counsel has made out that Exhibit B was served on the Appellant/Applicant re-scheduling the matter to 30th January, 2018. A close look at Exhibit B reveals that it was not served on anybody. It may have been issued but, there is nothing on the face of it to show that it was served and/or received by anyone on behalf of the appellant/applicant. But, all the same the learned counsel to the applicant has made out that the appellant/applicant was in Court but, the Court did not sit. It is immaterial as it is whether the appellant attended Court on 30/1/18 or not since there was no activity in Court on that day; but, in paragraph 6 of the affidavit in support of the motion it was deposed as follows:
6. Later on the 16th February, 2018 another hearing notice dated 5th February, 2018 rescheduling the matter to 21st February, 2018 was served on the Appellant/Applicant. A copy of the said hearing notice is attached herewith as Exhibit C.
From Exhibit C dated 5th February, 2018 the appeal was fixed for hearing on 21st February, 2018. From the records of Court, on the said date fixed for hearing, the learned counsel to the Appellant/Applicant Yunus Lambo Akanbi was in Court and appeared with Usman Omotosho. The learned counsel asked for adjournment on the basis that he did not know that his motion to amend his Notice of appeal on 15/1/18 was struck out. I will hereunder reproduce the proceedings of this Court on 21/2/18.
The appeal is fixed for hearing, Mr. Akanbi asks for adjournment, he says he did not know his motion to amend his Notice of appeal on 15/1/18 was struck out because he did not attend Court, despite the hearing Notice served on his secretary in chambers. He says he would like an adjournment to enable him re-file the application. Mr. Badmus does not oppose but, asks for costs of N50,000.00. He says this is the second time the appeal is coming up for hearing and being adjourned at the instance of the appellant.
COURT:
The appeal will be adjourned. The appeal is adjourned to 19/3/18 for hearing with N30,00.00 (Thirty Thousand Naira) costs to the Respondent, to be paid before the next adjourned date.
The award of costs on 21/2/18 was based on the learned counsel for the appellant asking for an adjournment to enable him re-file his struck out motion on 15/1/18, which the learned counsel said he was not aware of. On this basis the learned counsel to the Respondent asked for costs for the second adjournment of the appeal. The learned counsel did not oppose but, conceded the application for costs and did not say anything about any hearing notice. In any case the authentic hearing notice that was issued and served on the appellant/applicant is Exhibit C fixing the matter for 21/2/18.
From Exhibit A, the learned counsel knew or ought to have known that his matter was coming up on 15/1/18. Not having attended Court on that day he ought to have followed up in the registry of this Court to know what happened in Court on 15/1/18 in his absence, he failed to do so. On being served Exhibit C against the hearing of 21/2/18 (served on 5/2/18) the service should have gingered him up to also clarify from the registry of the Court the standing of his appeal. Exhibit C, clearly shows that the appeal was coming up for hearing. The practice Direction for the Court of Appeal, 2007 fixed costs to be awarded by the Court of Appeal in a Civil Appeal. Costs to be awarded for delaying the hearing of a Civil Appeal by a party on the fixed date for the hearing of the appeal is not less than N20,000.00 (Twenty Thousand Naira). This Court was magnanimous to have awarded the above amount out of what was sought N50,000.00 (Fifty Thousand Naira). The learned counsel to the appellant has not argued that he did not cause an adjournment of an appeal fixed fo
hearing on 21/2/18. As noted above, the learned applicants counsel did not object to the application for costs. The issue of service was also not raised. Exhibit B is not a hearing notice that I can say is authentic since there is nothing on the face of it to show that it was served on the applicant and relied upon as to mis-inform learned counsel as to the date of adjournment. The learned counsel cannot gain by his laxity and lack of diligence in prosecuting the appeal. In paragraphs 9 – 11 of the affidavit in support of the application, it was deposed as follows:
9. That the Appellant/Applicant was not in Court on the 15th day of January, 2018 due to the fact that he was misled by the Bailiff of this Honourable Court who served on the Appellant/Applicant the hearing notice to the effect that the matter earlier slated for 15th January, 2018 has been rescheduled/adjourned to 30th January, 2018.
10. That the Appellant/Applicants absence in Court on the 15th January, 2018 was not deliberate but due to the error of the Bailiff of this Court.
11. That it is in the interest of justice and fair hearing to grant this application.
There is nothing on record to show that the Bailiff of this Court committed any error or misled the appellant/applicant as to the date the motion/appeal was coming up for hearing. Exhibit A is the hearing notice issued and served on the appellant/applicant dated 16th November, 2017 against the hearing date of 15th January, 2018 and served on the appellant/applicants counsel through his secretary Hassan Fasilat on 23/11/17. There is nothing to back up the allegation that another hearing notice was served re-scheduling the appeal for 30th January, 2018. This Court graciously adjourned the appeal on 15th January, 2018 without penalizing the appellant/applicant to 6/2/18 on record and on 6/2/18, Exhibit C was issued and served on the learned counsels firm through Jimoh Munirah Yetunde, a secretary in the firm of Lambo Akanbi & Co.
The costs of 21/2/18 had nothing to do with learned counsels absence from Court on 15/1/18 and he was not denied any fair hearing. On the other hand, the failure of counsel who is duly served to attend the sitting of the
Court is an act of disrespect and should not be treated with levity. On absence of counsel from Court when his case comes up for hearing, see, a decision of this Court in EMMANUEL MADUIKE VS. TETELIS NIGERIA LIMITED (2015) LPELR- 24288 (CA) PP. 20 -21, PARAS. F – C. The relief sought in the present application earlier reproduced is as follows:
1. AN ORDER of this Honourable Court setting aside its order of cost made on 21st February, 2018 against the Appellant/Applicant for his absence in Court.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.
As could be seen from all that I have said above, the order of costs made by this Court on 21st February, 2018 against the appellant/applicant was not made in his absence, he was represented by the learned counsel to the appellant/applicant who did not oppose same knowing fully well that the Respondent was entitled to same having caused an unnecessary adjournment of an appeal. Order 19 Rule 4, Court of Appeal Rules, 2016 (second one) There are two Order 19) has made provision for when this Court can set aside its judgment/decision/order, we are concerned here with an order. It provides as follows:
Order 19 Rule 4:
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.
The present application was not brought within what is permitted for its grant under the rules of this Court. It is not to correct any clerical mistakes as none has been alleged or any error arising from an accidental slip or omission. The order is clear and unambiguous and does not need to be varied to give effect to its meaning or intention and it represents what the Court decided, that is, costs awarded because on the date the appeal was fixed for hearing the learned appellant/applicants counsel was unable to go on and instead asked that the appeal be adjourned because he did not know that his motion had been struck out on 15/1/18 when he failed to attend Court.
There are situations when the Court can set aside its judgment or order. They are:
1. When the judgment is obtained by fraud or deceit either in the Court, or of one or more parties.
2. When a judgment is a nullity, a person affected by an order of Court which can be properly described as a nullity is entitled Ex-debito justitiae to have it set aside.
3. When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.
4. Where the judgment was given in the absence of jurisdiction.
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See. UKACHUKWU VS. UBA NO. 2 (2005) 9 NWLR (PART 930) P. 370 at 389; IGWE VS. KALU (2002) 14 NWLR (PT. 787) 435 at P. 453 TO 454 and OLUSEGUN ADEBAYO ONI & ANOR VS. DR. JOHN OLUKAYODE FAYEMI & ORS (2012) LPELR- 14799 (CA) at PP. 4 – 5, PARA E. The appellant/applicants application does not fall under any of the permitted categories above to warrant the setting aside of the order of costs made by this Court on 21/2/18.
It is noteworthy that the order of costs made on 21/2/18 to be paid before the adjourned date of 9/3/18 was not obeyed. Instead on 5/3/18, the appellant/applicant re-filed his motion to further amend his Notice of appeal and did not pay the cost as at 9/3/18 or at all in obedience to the Court order. On 3/5/18 the application was once again adjourned to 25/5/18 for hearing to enable the applicant obey the order of Court. On the adjourned date the appellant/applicant filed the present application to set aside the order of costs still in disobedience of the Courts order.
In sum, the appellant/applicants orders sought are not grantable as he is not entitled to same.
I hold that the application is frivolous and without merit same is hereby dismissed. I award costs of N30,000.00 (Thirty Thousand Naira) against the Appellant/Applicant.
HAMMA AKAWU BARKA, J.C.A.: The Ruling of my learned brother CHIDI NWAOMA UWA JCA, was communicated to me in brief. Surely the contention by the applicant that he was wrongly served hearing notice and consequently penalized in his absence has no support from the records. I agree with the lead Judgment that the applicants application was grossly, misconceived and lacking in merit. The prayers are refused and accordingly dismissed. The award of N30,000 as costs against the applicant is agreeable to me.
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances:
Yunus Lambo Akanbi with him, Usman Omotosho For Appellant(s)
K. B. A. Badmus For Respondent(s)
Appearances
Yunus Lambo Akanbi with him, Usman Omotosho For Appellant
AND
K. B. A. Badmus For Respondent
