ALHAJI IDRISU SANNI V. MALLAM AHMADU SALIHU BELLO AGARA
(2011)LCN/4508(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of April, 2011
CA/IL/79/2009
RATIO
LEAVE OF COURT TO FILE COURT PROCESS: WHERE WHERE AN ENABLING RULE PROVIDES FOR LEAVE TO FILE A COURT PROCESS, FAILURE TO SEEK AND OBTAIN LEAVE, BEFORE FILING THE PROCESS WILL RENDER THE PROCESS INCOMPETENT
In resolving this issue, my first port of call is the judgment of this Court delivered on the 27th day of May, 2009 by my learned brother, Hon. Justice Sotonye Denton-West (JCA) wherein the learned law Lord held thus: “It is trite that where an enabling rule provides for leave to file a court process, failure to seek and obtain leave, before filing the process will automatically render the process incompetent. See Tilburry Construction Coy. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64, Ume v. Nigerian Renowed Trade Co. Ltd. (1997) 8 NWLR (Pt. 516) 344 at 355. The learned Lord did not stop there but went on to make an incidental order to wit: “However, I order that the Respondent should file motion for leave of the Court for extension of time to file his reply which he referred to as “further statement of claim.” A clinical examination of the above stated portion of the judgment of my learned brother would reveal the fact that from the resolution of the main issue (one) in favour of the Appellant and the incidental order thereon, this Court is in total agreement with the Appellant as regards to the issue of leave before filing the “further statement of claim e.t.c. which is the main contention of the Appellant in Appeal No. CA/IL/5/2007. PER TIJJANI ABDULLAHI, J.C.A.
ORDER OF COURT: WHETHER WHERE A COURT REFUSES THE PRINCIPAL ORDER IN A CASE, IT CAN MAKE AN INCIDENTAL ORDER THEREAFTER
It is settled beyond peradventure that a Court that refuses the principal order in a case cannot make an incidental order thereafter. See the case of Awoniyi vs. Registered Trustee of Amorc (2000) FWLR (Pt. 25) p. 1592 at 1611. PER TIJJANI ABDULLAHI, J.C.A.
FUNCTUS OFFICIO: WHEN DOES A COURT BECOME FUNCTUS OFFICIO AND EXCEPTION THEREOF
The law is trite that a Court of competent jurisdiction becomes functus officio after delivering a judgment/ruling in a given matter. See the case of Chieshe vs. Nicon Hotel Ltd. (2007) FWLR (Pt.25) P. 1592 at 1611 and Order 18 Rule 4 Court of Appeal rules, 2007. This, however is the general rule. As the saying goes, there is no rule without exception. In the case of Tomtect (Nig) Ltd. vs. FH (2009) 18 NWLR (Pt. 1172) P.358 at 364, the Apex Court listed six exceptions to the general rule as follows: “(a) Where the judgment is obtained by fraud or deceit either in the court or of one or more of the parties. (b) Where rhe judgment is a nullity. (c) where it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it. (d) Where the judgment was given in the absence of jurisdiction; (e) Where the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. (f) Where there is fundamental irregularity.” PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
CHIMA CBNTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
ALHAJI IDRISU SANNI Appellant(s)
AND
MALLAM AHMADU SALIHU BELLO AGARA Respondent(s)
TIJJANI ABDULLAHI, J.C.A., (Delivering the Lead Ruling): The Applicant who is an Appellant in appeal No. CA/IL/97/M/CA/2009 filed a Motion on notice praying for the following reliefs:
“AN ORDER of this Honourable Court varying it’s judgment delivered on Wednesday, 27th of May, 2009 as it relates to its conclusion dismissing the appeal.
2. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstance.”
The application is predicated on eight grounds as produced hereunder:
“(1) The main grounds for this appeal border on the failure of the Respondent to seek leave of the Court before proceeding to file court process out of time.
(2) The first and main issue in the Appellant’s/Applicant’s Brief of Argument equally borders on the failure of the Respondent to seek the leave of the Court before proceeding to file court process out of time.
(3) This Honourable Court in its judgment delivered on 25/5/09 agreed with the Appellant/Applicant on the said main issue and resolved it in favour of the Appellant.
(4) This Honourable Court in its judgment delivered on 25/5/09 agreed with the Appellant/Applicant on the said main issue and resolved it in favour of the Appellant.
(5) This Honourable Court in spite of its finding and resolution of the main issue in favour of the Appellant went ahead to give a final verdict dismissing the appeal
(6) The conclusion albeit final verdict is not in tandem with the findings and resolutions on the main issue.
(7) The error in the said judgment dismissing the appeal is a slip which can be corrected.
(8) A variation of the judgment by giving a verdict of allowing the appeal will give effect to its meaning and intention.
The application is supported by two distinct affidavits; the supporting Affidavit consisting of 13 paragraphs and the further Affidavit dated 16th October and filed on the 9th of October, 2009, consisting of seven paragraphs and attached therewith as exhibit, the judgment of this Court in case No. CA/IL/79/2009 marked Exhibit A.
On the other hand, the Respondent opposed the application and filed a Counter affidavit in support of his opposition consisting of 24 paragraphs. Attached to the application are exhibits (A1 – B2) and (C1 – C6).
The application as can be gathered from the processes filed by the Applicant is brought pursuant to Order 18 Rule 4 of the Rules of this Court as amended and in essence is seeking for an order of this Court as contained in the application which I stated a while ago.
In the address attached to the application, learned Counsel formulated two issues for determination as follows:
(1) “Whether the true intention of this Honourable Court is reflected having regards to the pronouncements of this court dismissing Appeal No. CA/IL/15/2007 vis-a-vis the order of this Honourable Court as contained in its judgment of 27/5/2009.
(2) Whether this Honourable Court has the necessary jurisdiction to entertain the reliefs being sought by the Appellant in this appeal.”
For his part, learned Counsel for the Respondent in a brief settled by I,K. Eleshina adopted issue No 2 of the applicant as his only issue for determination.
On 24th January 2011 when the application came before us for hearing, Counsel for the Applicant, Mrs. R. Adeyemi adopted their written address filed on 21st April, 2010 and was deemed to have been properly filed and served on the 17th of May, 2011. She urged us to grant their application as prayed. Learned Counsel for the Respondent Mr. F.K. Adeshina adopted their written address and urged us to refuse the application. He informed the Court that the substantive suit at the lower Court has reached advanced stage of address which would be adopted on 07/02/2011. He urged us to dismiss the application.
ISSUE ONE
On this issue for determination, learned Counsel submitted that from the pronouncement of this Court in dismissing appeal No. CA/IL/5/2007 and the Order contained in the judgment delivered on 27/5/2009, the true intention of this Court is not reflected.
Learned Counsel took the view that from both the grounds and issues formulated by the Appellant/Applicant the appeal No. CA/IL/5/2007, particularly issues 1 and 3, it is very clear that the main issue/contention of the Appellant in that appeal is the failure and/or refusal of the Respondent to obtain leave of the trial Court before filing his “further statement of claim” and pretrial notice.
It is the contention of the learned Counsel that taking all the issues together, the Appellant’s main contention in Appeal No. CA/IL/5/2007 was nothing but the Respondent’s failure and or refusal to obtain leave to file his late documents in the trial Court.
It is the submission of the learned Counsel that the Court having made an incidental Order i.e. ordering the Respondent to file motion for leave of the Court for extension of time to file his reply which is referred to as “further statement of claim”, the Court would not have intended to dismiss the Appellant’s Appeal No. CA/IL/5/2007; at worst, the learned Counsel went on, it would have intended to allow the said appeal in part if not in whole. Learned Counsel urged us to resolve this issue in favour of the applicant.
As can be gathered from the Respondent’s address, learned Counsel adopted issue No. 2 formulated by the Applicant as the only issue calling for determination in this application.
RESOLUTION OF THE ISSUE
In resolving this issue, my first port of call is the judgment of this Court delivered on the 27th day of May, 2009 by my learned brother, Hon. Justice Sotonye Denton-West (JCA) wherein the learned law Lord held thus:
“It is trite that where an enabling rule provides for leave to file a court process, failure to seek and obtain leave, before filing the process will automatically render the process incompetent. See Tilburry Construction Coy. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64, Ume v. Nigerian Renowed Trade Co. Ltd. (1997) 8 NWLR (Pt. 516) 344 at 355.
The learned Lord did not stop there but went on to make an incidental order to wit:
“However, I order that the Respondent should file motion for leave of the Court for extension of time to file his reply which he referred to as “further statement of claim.”
A clinical examination of the above stated portion of the judgment of my learned brother would reveal the fact that from the resolution of the main issue (one) in favour of the Appellant and the incidental order thereon, this Court is in total agreement with the Appellant as regards to the issue of leave before filing the “further statement of claim e.t.c. which is the main contention of the Appellant in Appeal No. CA/IL/5/2007.
It is settled beyond peradventure that a Court that refuses the principal order in a case cannot make an incidental order thereafter. See the case of Awoniyi vs. Registered Trustee of Amorc (2000) FWLR (Pt. 25) p. 1592 at 1611.
I am of the considered view that if this Court intended to dismiss the Appellant’s case, the position would have been that this Court is in total agreement with the Respondent who is of the view that obtaining leave to file his appeal processes out of time is not necessary and with that position, the Court would not have at the same time, made an order directing the Respondent (whom it had agreed with that leave is not necessary) to file a motion for leave to file his late processes. I am of the further view that the dismissal order made by my learned lord must have been an error.
The question that must be asked and answered is this, can the Court correct this error or accidental slip at this stage. The law is trite that a Court of competent jurisdiction becomes functus officio after delivering a judgment/ruling in a given matter. See the case of Chieshe vs. Nicon Hotel Ltd. (2007) FWLR (Pt.25) P. 1592 at 1611 and Order 18 Rule 4 Court of Appeal rules, 2007 .
This, however is the general rule. As the saying goes, there is no rule without exception. In the case of Tomtect (Nig) Ltd. vs. FH (2009) 18 NWLR (Pt. 1172) P.358 at 364, the Apex Court listed six exceptions to the general rule as follows:
“(a) Where the judgment is obtained by fraud or deceit either in the court or of one or more of the parties.
(b) Where rhe judgment is a nullity.
(c) where it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it.
(d) Where the judgment was given in the absence of jurisdiction;
(e) Where the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
(f) Where there is fundamental irregularity.”
It is instructive to state at this juncture that the order of the Court dismissing the appeal in CA/IL/76/2009 is not in tandem with the reasoning and conclusion reached by my learned brother on the main issue formulated by the Appellant as issue No. 1 in that appeal.
That aside, I am of the view that by virtue of Order 18 Rule 4 of the Rules of this Court, this Court can “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”.
In the light of all that has been said, the application in contention is meritorious and same is granted as prayed. The order of the Court dismissing the appeal is hereby varied. The appeal is allowed in part but the consequential orders made therein are unaffected by the variation.
Having coming this far, I am of the considered view that it will be an exercise in futility to consider the remaining issues raised by the parties in their written addresses. Each party shall bear its individual costs of prosecuting this application.
SOTONYE DENTON-WEST, J.C.A.: The ruling delivered by my noble lord Hon. Justice Tijani Abdullahi (PJ) JCA, has adequately addressed the issues raised in this appeal. I am obliged though with much ado to adopt same.
I therefore abide by the orders made in the lead ruling.
CHIMA CENTUS NWEZE J.C.A.: I had the advantage of reading the draft of the leading ruling which my learned brother, Tijjani Abdullahi JCA, just delivered now. I endorse my Lord’s conclusion that this appeal is meritorious. Like the leading ruling, I, too, hereby enter an order allowing the appeal in part.
Appearances
Ronke Adeyemi (Mrs),
Josiah Adebayo,
Oluwalosin Adeoye (Mrs) and
Adenola-Bank A.G.For Appellant
AND
Mr. F. K. Adeshina (I. K. Eleshina Settled the Brief)For Respondent
