ANAMELECHI ITEOGU v. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
(2018) LCN/4763(SC)
In The Supreme Court of Nigeria
On Friday, the 23rd day of February, 2018
SC.190/2006(R)
RATIO
WHETHER THE ISSUE OF JURISDICTION OF THE SUPREME COURT OVER A MATTER CAN BE CHALLENGED YEARS AFTER IT HAD ALREADY DELIVERED ITS JUDGMENT AND THE PARTIES ‘ DISPUTES WERE SETTLED OR DETERMINED
By the present motion, the appellant/applicant is now challenging this Court’s judgment delivered on 4th December, 2009 which was reported as ANAMELECHI ITEOGU vs LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2009) 17 NWLR (PT.117) 614 on the simple ground that the judgment was given by the Court without jurisdiction. It is worthy of note that when the appellant, now applicant, presented his appeal before this Court the issue of jurisdiction was never raised. I am not unmindful of the fact that issue of jurisdiction can be raised at any time even before the Supreme Court, but to my mind that issue of jurisdiction can only be raised during the pendency of the relevant proceedings and certainly not some years after the Court had already delivered its judgment and parties disputes were settled or determined or their fates were decided. It is an elementary principle of Law that once a Court delivers its judgment, in a given case, it thereupon becomes functus officio and can therefore not reopen it in whatever guise, except of course, in the event that there was circumstance where the doctrine of SLIP RULE applies or to correct mistake. That notwithstanding however, a Court can set aside its own judgment only in exceptional circumstances or conditions which I will furnish presently in this ruling. Even then, the discretion of Court to set aside its earlier judgment must always be exercised judiciously and judicially and must also be applied sparingly to void causing injustice or to breach public interest or possible public uproar. This Court also lacks the jurisdiction to review its earlier decision or judgment. Once decisions or judgments have been delivered by this Court, such decision has air or force of finality and can not be appealed against or reviewed by it except in the exceptional circumstances I will explain below. It is evident from the facts and circumstance of this application as I posited above, that the applicant herein filed this instant application seeking the indulgence of this Court to set aside the judgment it had since delivered on 4th of December, 2009 in the case of ANAMELECHI ITEOGU vs LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE, now reported in (2009)17 NWLR (pt.117) 614 for want of jurisdiction. There is no gain to say that when arguing that appeal before this Court, the applicant did not raise issue of jurisdiction before this Court for it to decide. Admittedly, this Court had earlier in the cases of Rotimi Williams Akintokun vs LPDC, Appeal No. SC 11/2006 now reported in (2014) LPELR 22941 (SC) and the case of ALADEJOBI Vs NIGERIAN BAR ASSOCIATION (2013) 15 NWLR (Pt.1376), had departed from its earlier decision in ANAMELECHI’s case (supra) wherein, it held that this Court had jurisdiction to entertain appeal directly from the decision of the Legal Practitioners Disciplinary Committee (respondent) without same routing through its Appeal Committee. There is no doubt that Honourable justices of this Court are human beings and therefore not infallible. They can make mistakes or commit errors at any time like any other mortals. That is why the law allows for correction of errors in its judgment when called upon so to do, for instance, in SLIP RULE or PENCIL RULE. In other words, in deserved situation or circumstances, this Court when invited, can revisit the judgment it delivered earlier or previously, if such judgments are seen not to be in accord with desired justice by setting same aside, or varying same or even overruling such judgment. See Order 8 Rule 16 of Supreme Court Rules 1985. I must however stress here that generally, once a Court delivers its judgment, it becomes functus. It goes without saying therefore that in the exercise of setting aside of its previous judgment, this Court and indeed every other Court must do so only in the interest of justice which is indeed the preoccupation of all Courts. The Courts when faced with an application to set aside it own judgment, it must guard against possible instability crippling into the corpus of our laws. In fact, this Court in plethora of its decided authorities had set out some conditions which must be considered to have existed in the previous judgment sought to be set aside and these conditions include the followings: (a) That the previous judgment was given per incuriam, or (b) That the judgment was erroneous in law; or (c) That the previous judgment is contrary to public policy or is occasioning miscarriage of justice or perpetuating injustice. See AG Federation v GUARDIAN NEWS PAPER LTD (1999) 9 NWLR (pt.618)187; AMINU TANKO v THE STATE LPELR 3136 (SC); (2009) 14 WRN 1; (2009)1 NWLR (pt 1131) 430. As I highlighted above, judgments of this Court are delivered with air of finality and can not be reviewed, varied or set aside except on the conditions I highlighted above. The consideration made by this Court in deciding the cases of Akintokun v. LPDC (supra) and Aladejobi v. LPDC (supra) relied on by the applicant had admitted been a departure by this Court of its earliest stance on its jurisdiction, contrary to its earlier position in Anamelechis case. To my mind, if this Court grants the order of setting aside its earlier judgment as sought in this instant application, it will open a flood gate for litigants with similar complaints or grouse to be greeting this Court with multiplicity of applications or suits which may in the long run open a chain of reactions the consequence of which nobody can foretell. In the case of Adegoke Motors Ltd vs Adesanya & Anor (1989) 3 NWLR (pt.109) 250; Oputa JSC at page 274 stated that:- We are final not because we are infallible, rather we are infallible because we are final.” Again, by the provisions of Order 2 Rule 29 (1) of the Supreme Court Rules this Court shall only entertain application to set aside its judgment if only such application for setting aside is brought before it within a reasonable time. The instant application is seeking the setting aside of a decision delivered by this Court more than eight years ago. Such period can not be regarded as a reasonable time from which ever angle one looks at it. It will be rather absurd to indulge the applicant’s requests which in my view, is brought at the 28th hour of the day. Having stated the above, I see no basis for me to invoke the provisions of Order 6 Rule 5 (4) of the Supreme Court Rules to set aside the earlier decision given by this Court on 4th December, 2009 in Anamelechi Iteogu Esq., v LPDC reprinted in (2009) 17 NWLR (Pt 117) 614. PER AMIRU SANUSI, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
ANAMELECHI ITEOGU Appellant(s)
AND
LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE Respondent(s)
AMIRU SANUSI, J.S.C. (Delivering the Lead Ruling): The appellant, who is now applicant filed a motion on notice on 20th of August 2014 seeking an order of this Court which he couched as below:-
An order of this Honorable Court setting aside the Judgment of this Honorable Court dated 4th December 2009 made by their lordships, ALLOYSIUS IYORGYER KASINA ALU JSC (as he then was), MAHMUD MOHAMMED JSC, WALTER NKANU ONNOGHEN JSC; CHRISTOPHER MITCHEL J; CHUKWUMA ENEH JSC (as he then was) and MUHAMMED SAIFULLHI MUNTAKH COOMASSI JSC, reported as ANAMELECHI ITEOGU vs LPDC (2009) 17 NWLR (Pt 117) 614.
The motion had three other prayers which the learned counsel for the applicant chose to withdraw and same were thereupon struck out, leaving the above prayer only for this Court’s determination.
The motion was brought pursuant to Section 22 of the Supreme Court Act, Cap S.15 Laws of the Federation 2004; Order 3 Rule 15 and Order 8, Rule 16 of the Supreme Court Rules 2011 and under the inherent jurisdiction of the Supreme Court of Nigeria.
The grounds upon which the application was brought include the followings:-
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(a) The Appeal was from a decision of the Legal Practitioners Disciplinary Committee of the Supreme Court.
(b) The Supreme Court entertained the Appeal and delivered its Judgment on 4th December, 2009.
(c) The Supreme Court has no Jurisdiction to entertain an appeal from the Legal Practitioners Disciplinary Committee as decided by the Court in the underlisted cases.
(i) ALADEJOBI vs NIGERIA BAR ASSOCIATION (2013) 15 NWLR (pt.1376) 66 and
(ii) ROTIMI WILLIAMS AKINTOKUN Vs LPDC (Unreported Suit SC 111/2014 delivered on 16th May 2014
(d) In the circumstances the Judgment of this Court dated 4th December, 2009 was entered without Jurisdiction and the Appellant/Applicant affected by the Judgment is ex debito justiciae entitled to apply to set aside the said Judgment.
(e) Given the length of time between the delivery of the said judgment and the application, it is necessary ex abundant cautela to seek leave of Court and extension of time to bring the application.
The applicant supported his application with a twenty one paragraph affidavit. He also annexed the underlisted exhibit:-
(i) A Written Address in support of the motion dated
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20/8/2014.
(ii) Certified true copy of the judgment of this Court delivered on 4th day of December, 2009, and
(iii) A photo-copy of a receipt for the production of the said judgment.
The appellant/applicant had also on 4/10/17 filed an Appellant/Applicants Reply Brief in response to the respondents Reply Address to the motion on notice.
On its part, the respondent filed a counter affidavit of nine (9) paragraphs dated 18th April 2017 in opposition to the motion under consideration. He also filed a written Brief on 10/5/2017 in opposing the applicant’s application
As I stated supra, the Appellant/Applicant had earlier withdrawn the three prayers in this motion, thus leaving only one prayer which has to do with seeking the indulgence of this Court to set aside the Judgment it had earlier delivered on 4th day of December, 2009 in appeal No SC 190/2016 in the case of Anamelechi Iteogu Esq., vs The Legal Practitioners Disciplinary Committee now reported in (2009) 17 NWLR (pt 117) 614.
When arguing the motion before us on 4/12/2017, the parties adopted their Written Addresses. It was
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submitted by the learned applicant’s counsel, that the only extant issue for determination is simply thus:-
Whether this Honorable Court should set aside its judgment in this case.
The appellant/applicant argued that this Court had no jurisdiction to entertain the appeal as at the time the case was decided. He referred to the decision of the Supreme Court in the case of Nwodike v. LPDC (2005) ALL FWLR (pt. 266) 1176 and ALADEJOBI v. NIGERIA BAR ASSOCIATION (2013) 15 NWLR (pt. 1376) 66, where it was held that appeal from LPDC ought to go first before the Appeal Committee of the Body of Benchers. He therefore submitted that as at 2009 when the Supreme Court delivered judgment in this appeal, it had no Jurisdiction to do so. He then urged this Court to resolve this issue in favour of the Appellant/Applicant
In his response, the learned counsel for the respondent submitted that he was not unmindful of the inherent Jurisdiction of the Supreme Court to set aside its own decision in very limited circumstances, particularly where the said Judgment is a nullity.
He argued that the learned counsel to the Applicant appears to have misunderstood and misconceived the
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scope of the exercise of the inherent Jurisdiction of the Court to set aside its own decision ex debite Justitia. He cited the case of AMALGAMATED TRUSTEES LIMITED V ASSOCIATED DISCOUNT HOUSE LTD (2007) 15 NWLR (PT.1056) page 126-127.
He contended that if the application is granted, it will certainly open a flood gate to already decided cases by the Supreme Court with litigants challenging the decisions of the Supreme Court under the guise of reviewing the Judgments under the Slip Rule. He urged this Court to dismiss the application in its entirety, as it is not justiciable to reopen already concluded issues relating to the Judgment of the Court dated 4th December, 2009.
My lords, before going into the merit or otherwise of this application, it will not be out of place, to give brief facts which gave rise to the present application. In the year 2006, the Nigerian Bar Association lodged a complaint to the respondent herein, against the present applicant, accusing him of professional misconduct. The respondent (hereinafter) referred to as (the Committee) gave its direction on 7/6/2006 which the appellant/applicant,
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a legal practitioner was found liable of professional misconduct contrary to Rules 24 and 49 (a) and (b) of the Rules of Professional Conduct in the Legal Profession, punishable under Section 12 of Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria 2015 (as amended). Thereupon, the appellant was ordered to pay a sum of N9,500,000 (Nine Million, Five Hundred Thousand Naira only) to his client one Bishop Ndarake James Antigha who had earlier petitioned against the appellant/applicant. It was also ordered that the appellants name should be struck off the Roll of legal practitioners.
Piqued by the decision of the Committee, the appellant herein, appealed to the Supreme Court and this Court on 4th December, 2009 dismissed the appeal and affirmed the decision of the Committee.
By the present motion, the appellant/applicant is now challenging this Courts judgment delivered on 4th December, 2009 which was reported as ANAMELECHI ITEOGU vs LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2009) 17 NWLR (PT.117) 614 on the simple ground that the judgment was given by the Court without jurisdiction. The appellant/applicant by
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his sole prayer is now seeking the order of this Court to set aside that judgment which was delivered by this Court on 4th December 2009 because according to him, this Court lacked jurisdiction when it delivered the judgment under references. It is worthy of note that when the appellant, now applicant, presented his appeal before this Court the issue of jurisdiction was never raised. I am not unmindful of the fact that issue of jurisdiction can be raised at any time even before the Supreme Court, but to my mind that issue of jurisdiction can only be raised during the pendency of the relevant proceedings and certainly not some years after the Court had already delivered its judgment and parties disputes were settled or determined or their fates were decided. It is an elementary principle of Law that once a Court delivers its judgment, in a given case, it thereupon becomes functus officio and can therefore not reopen it in whatever guise, except of course, in the event that there was circumstance where the doctrine of SLIP RULE applies or to correct mistake. That notwithstanding
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however, a Court can set aside its own judgment only in exceptional circumstances or conditions which I will furnish presently in this ruling. Even then, the discretion of Court to set aside its earlier judgment must always be exercised judiciously and judicially and must also be applied sparingly to void causing injustice or to breach public interest or possible public uproar. This Court also lacks the jurisdiction to review its earlier decision or judgment. Once decisions or judgments have been delivered by this Court, such decision has air or force of finality and can not be appealed against or reviewed by it except in the exceptional circumstances I will explain below.
It is evident from the facts and circumstance of this application as I posited above, that the applicant herein filed this instant application seeking the indulgence of this Court to set aside the judgment it had since delivered on 4th of December, 2009 in the case of ANAMELECHI ITEOGU vs LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE, now reported in (2009)17 NWLR (pt.117) 614 for want of jurisdiction. There is no gain to say that when arguing that appeal before this Court, the applicant did not raise issue of jurisdiction before this Court for it to decide.
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Admittedly, this Court had earlier in the cases of Rotimi Williams Akintokun vs LPDC, Appeal No. SC 11/2006 now reported in (2014) LPELR 22941 (SC) and the case of ALADEJOBI Vs NIGERIAN BAR ASSOCIATION (2013) 15 NWLR (Pt.1376), had departed from its earlier decision in ANAMELECHI’s case (supra) wherein, it held that this Court had jurisdiction to entertain appeal directly from the decision of the Legal Practitioners Disciplinary Committee (respondent) without same routing through its Appeal Committee.
There is no doubt that Honourable justices of this Court are human beings and therefore not infallible. They can make mistakes or commit errors at any time like any other mortals. That is why the law allows for correction of errors in its judgment when called upon so to do, for instance, in SLIP RULE or PENCIL RULE. In other words, in deserved situation or circumstances, this Court when invited, can revisit the judgment it delivered earlier or previously, if such judgments are seen not to be in accord with desired justice by setting same aside, or varying same or even overruling such judgment.
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See Order 8 Rule 16 of Supreme Court Rules 1985. I must however stress here that generally, once a Court delivers its judgment, it becomes functus. It goes without saying therefore that in the exercise of setting aside of its previous judgment, this Court and indeed every other Court must do so only in the interest of justice which is indeed the preoccupation of all Courts. The Courts when faced with an application to set aside it own judgment, it must guard against possible instability crippling into the corpus of our laws. In fact, this Court in plethora of its decided authorities had set out some conditions which must be considered to have existed in the previous judgment sought to be set aside and these conditions include the followings:
(a) That the previous judgment was given per incuriam, or
(b) That the judgment was erroneous in law; or
(c) That the previous judgment is contrary to public policy or is occasioning miscarriage of justice or perpetuating injustice.
See AG Federation v GUARDIAN NEWS PAPER LTD (1999) 9 NWLR (pt.618)187; AMINU TANKO v THE STATE LPELR 3136 (SC); (2009) 14 WRN 1; (2009)1 NWLR (pt 1131) 430.
As I highlighted above, judgments of this Court are
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delivered with air of finality and can not be reviewed, varied or set aside except on the conditions I highlighted above. The consideration made by this Court in deciding the cases of Akintokun v. LPDC (supra) and Aladejobi v. LPDC (supra) relied on by the applicant had admitted been a departure by this Court of its earliest stance on its jurisdiction, contrary to its earlier position in Anamelechis case. To my mind, if this Court grants the order of setting aside its earlier judgment as sought in this instant application, it will open a flood gate for litigants with similar complaints or grouse to be greeting this Court with multiplicity of applications or suits which may in the long run open a chain of reactions the consequence of which nobody can foretell. In the case of Adegoke Motors Ltd vs Adesanya & Anor (1989) 3 NWLR (pt.109) 250; Oputa JSC at page 274 stated that:-
We are final not because we are infallible, rather we are infallible because we are final.”
Again, by the provisions of Order 2 Rule 29 (1) of the Supreme Court Rules this Court shall only entertain application to set aside its judgment if only such application for setting aside is brought before it within a
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reasonable time. The instant application is seeking the setting aside of a decision delivered by this Court more than eight years ago. Such period can not be regarded as a reasonable time from which ever angle one looks at it. It will be rather absurd to indulge the applicant’s requests which in my view, is brought at the 28th hour of the day.
Having stated the above, I see no basis for me to invoke the provisions of Order 6 Rule 5 (4) of the Supreme Court Rules to set aside the earlier decision given by this Court on 4th December, 2009 in Anamelechi Iteogu Esq., v LPDC reprinted in (2009) 17 NWLR (Pt 117) 614.
As a corollary, I adjudge this application unmeritorious and it is therefore hereby refused and accordingly dismissed by me.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading the leading Ruling of my learned brother, Sanusi, JSC. I agree with the reasoning and conclusion that the application lacks merit. I too dismiss the application.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the Ruling just delivered by my learned brother,
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Amiru Sanusi JSC and to underscore my support for the reasoning from which the decision came about, I shall make some remarks.
The motion was filed on the 20th August, 2014 in which the prayer sought is for an order setting aside the judgment of this Court dated 4th December, 2009 made by their Lordships: Alloysius Iyorgyer Katsina-Alu JSC (as he then was) Mahmud Mohammed JSC (as he then was), Walter Samuel Nkanu Onnoghen JSC (as he then was), Christopher Mitchel Chukwuma-Eneh JSC and Muhammed Saifullahi Muntaka-Coomassi JSC, reported as ANAMELECHI ITEOGU v L.P.D.C. (2009) 17 NWLR (Pt.117) 614.
The grounds on which the application is set are five in number and they are thus:
1. The Appeal was from a direction of the Legal Practitioners Disciplinary Committee to the Supreme Court.
2.The Supreme Court entertained the Appeal and delivered its judgment on 4th December, 2009.
3. The Supreme Court has no jurisdiction to entertain an appeal from the Legal Practitioners Disciplinary Committee as decided by that Court in Aladejobi v Nigeria Bar Association (2013) 15 NWLR (Pt.1376) 66.
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Rotimi Williams Akintokun v L.P.D.C. unreported Suit No. SC/111/2014 delivered on 16th May, 2014.
4. In the circumstances the judgment of this Court dated 4th December, 2009 was entered without jurisdiction and the appellant/applicant affected by the judgment is ex debito justiciae entitled to apply to set aside the said judgment.
5.Given the length of time between the delivery of the said judgment and this application it is necessary ex abundant cautela to seek leave of Court and extension of time to bring this application.
The application is supported by a 22 paragraph affidavit deposed to by the applicant himself.
On the 4th day of December, 2017 date of hearing, U. K. Ekpuchie Esq., of counsel adopted his written address filed along with the motion and a reply filed on the 4/10/17.
Learned counsel for the respondent, P. D. Daudu Esq. adopted its Brief in opposition of the application and it was filed on 10/5/17. A counter affidavit of 9 paragraphs had been filed on 19/4/2017 which learned counsel for respondent also adopted.
The applicant raised two issues for determination which are thus:
1. Whether this Honourable Court should set aside its
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judgment in this case.
2. Whether this Court should exercise its discretion to grant the appellant/applicant leave to bring this application and extension of time to being this application.
Respondent on the other hand crafted a single issue which is as follows:
Whether the applicants invitation to this Court to overrule itself on its earlier decision of 4th December 2009 is justiciable.
This sole issue of the respondent covers the grounds of this application and I shall make use of it in the determination of this application.
SOLE ISSUE
Whether the applicants invitation to this Court to overrule itself on its earlier decision of 4th December 2009 is justiciable.
Learned counsel for the applicant contended that an applicant praying the Court to set aside its previous judgment must show that the facts and circumstances of his application fall info any of the following categories which are thus:
(a) Where the judgment was obtained by fraud.
(b) When the judgment is a nullity such as when the Court itself was not competent
(c) When the Court was misled into giving judgment
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under a mistaken belief that the parties have consented to it.
(d) When the judgment was given without jurisdiction.
(e) When the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
He cited Ede & Anor v Mba & Ors. (2011) 18 NWLR (Pt.1278) 236: Alao v A. C. B. Ltd (2000) 9 NWLR (Pt.672) 264; Igwe v Kalu (2002) 14 NWLR (Pt.787) 435: CITEC Int’l Estates Ltd v Francis (2014) 8 NWLR (Pt. 1408) 139: A. T. Ltd v A.D.H. Ltd (2007) 15 NWLR (Pt. 1056) 118.
He stated that a party affected by a null order of Court is entitled ex debito justiciae to apply to that Court to set the said judgment aside. He referred to Adegoke Motors Ltd v. Adesanya & Anor. (1989) 3 NWLR (Pt.109) 250 at 273 275; Aladejobi v. N.B.A (2013) 15 NWLR (Pt.1376) 66.
He further stated that the applicants affidavit has eloquently and truthfully explained why this application was brought out of time. That the applicants understanding of the legal position was the reason.
Learned counsel for the respondent in response stated
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that there is no right of appeal to any person or authority except as provided under Section 235 of the 1999 Constitution. That the provisions for the correction of occidental mistakes or slip under Order 8 Rule 16 of the Rules of Supreme Court to bring it in line with the intention of the judgment has not made any provision for setting aside the judgment or for a rehearing of the appeal. That although this is a Court of last resort, it is a Court of appellate jurisdiction.
Learned counsel for the respondent submitted further that except for the original jurisdiction given in Section 232 of the 1999 Constitution its jurisdiction is appellate only, with incidental original jurisdiction conferred by Subsection (6) (a) of Section 6 of the Constitution, for the purpose of exercising that appellate jurisdiction. That the Supreme Court is statutory and cannot therefore, for the sake of doing justice confer on itself a jurisdiction that is not given it by the Constitution or by any statute. That it is in the public interest that there should be an end to litigation and the finality of the Supreme Courts judgment are not to be played around with in an attempt at review except in
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exceptional circumstances.
He referred to Section 235 of 1999 CFRN, Order 8 Rule 16 of the Rules of the Supreme Court 1985 (as amended); Adefulu v Okulaja (1998) 5 NWLR (pt. 550) 435.
He said this Court’s judgment of 4th December, 2009 cannot be a nullity merely because this Court in subsequent decisions of Aladejobi v. Nigeria Bar Association (2013) 15 NWLR (pt.1376); Rotimi Williams Akintokun v L.P.D.C. (supra) has departed from its original position in the previous case, the appeal of the applicant inclusive. He cited Adegoke Motors Ltd v. Adesanya & Anor. (1989) 5 SC 113; Eleazar Obioha v. Innocent Ibero & Anor. (1994) 1 NWLR (Pt. 322) 503 etc.
In a nutshell, the applicant is asking for this Court revisiting its case concerning the applicant which was decided on the 4th day of December, 2009 against a direction of the respondent which appeal this Court dismissed on the merit. The basis for this prayer for revisitation stems from the fact that on the 12th July, 2013 and 13th May, 2014 respectively, the Supreme Court held in the cases of Aladejobi v NBA (2013) 15 NWLR (Pt. 1376) 66 and
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ROTIMI WILLIAMS AKINTOKUN V LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE in Suit No. SC 111/2006 in which the Court held it has no jurisdiction to entertain an appeal directly from the Legal Practitioners Disciplinary Committee. The applicants posture herein is that by these later decisions, the Supreme Court lacks jurisdiction to entertain appeals from the Legal Practitioners Committee Directions directly and so the need to revisit ANAMELECHI ITEOGU’s case and declare that the decision or judgment of this Court in 2009 was without vires and so set it aside and have the status of legal practitioners of the applicant restored.
The respondent counters the position of the appellant on the ground that the policy is that there must be an end to litigation and the application constitutes a gross abuse of the process of this Court and the application should be dismissed.
The situation thrown up clearly necessitates a foray into the 1999 Constitution and the relevant rules of Court that apply when the Court is called up to look at any judgment once delivered since the Court is not generally empowered to review a judgment once delivered and the only exception being where there
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is a need to correct any clerical mistake or some error arising from accidental ship or omission, or to vary the judgment or order so as to give effect to its meaning or intention. This exception to the general principle is known as the slip rule.
Also embedded in these constitutional provisions and rule of Court is a total prohibition from review of a judgment which correctly represents what the Court decided and so cannot be varied. The third component of those provisions is that the operative and substantive part of a judgment shall not be varied and a different form substituted. I rely on Adefulu v. Okulaja (1998) 5 NWLR (pt.550) 435.
The implication of the provisions referred to is that once this Court has come to a decision and delivered it, the Court becomes functus officio and cannot reopen the matter.
For clarity I shall quote the constitutional provisions and the rules of Court referred to as follows:
Section 235 CFRN:
Without prejudice to the powers of the President or of the Governor of a State with respect to the prerogative of mercy, no appeal shall lie to any other
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body or person from any determination of the Supreme Court. It is relevant to refer also to the provisions of Section 233(6) of the 1999 Constitution (as amended) which states thus:
Any right to appeal to the Supreme Court from the decision of the (Federal) Court of Appeal conferred by this section shall, subject to Section 216 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.
Order 8 Rule 16 of the Rules of the Supreme Court 1985 (as amended) thus:
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 occidental 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 be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.
It follows that this Court having held at the time in
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2009 that it had jurisdiction to consider appeals from the Legal Practitioners Disciplinary Committee (LPDC) that decision is final and cannot be set aside on the ground that a new thinking had taken place to which an opposite result is the effect. The point has to be made that this Court has the right to depart from its earlier decision in subsequent cases and thereby overruled itself, it does not however mean that the previous decisions in those earlier cases differently decided would be given a new lease of life on account of this new development. The reason for this is self evident as Oputa JSC stated in Adegoke Motors Ltd v Adesanya & Anor. (1989) 5 SC 113: (1989) 3 NWLR (Pt. 109) 250 at 274 thus:
We are final not because we are infallible, rather we are infallible because we are final.
Indeed to explain the situation in its law and I dare say, morbid form the position is akin to asking a doctor to bring up a corpse of a person who died years ago of a disease which at the time of the demise of the person was incurable merely because new drugs have emerged for the cure of anyone suffering a similar disease so as to administer the drug, an impossibility which analogy is
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which analogy is similar to what this Court is called upon to do. The judgment earlier given with the jurisdiction of the Court available at the time would not be reviewed when the Court has made an about turn to its understanding and decision of the law. The earlier decision with the attendant fall outs are overtaken events, unfortunate as it may be, there is no remedy.
For a fact this Court is not enticed by the invocation by learned counsel for the appellant urging it to exercise its inherent jurisdiction to set aside the case of the applicant decided on merit with the Court assuming jurisdiction in what the appellants counsel terms interest of justice. It is now trite law that the judgment of this Court validly constituted as to the number of its justices and jurisdiction of the subject matter is final and there is no right of appeal to any person or authority except as provided under Section 235, CFRN 1999 and that is not evident here.
Explaining this situation, the Court in the case of Eleazar Obioha v Innocent Ibero & Anor. (1994) 1 NWLR (Pt.322) 503 held thus:
By Section 235 of the 1999
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Constitution (as amended), the Supreme Court cannot sit on appeal over it’s own judgment. The provision gives a stamp of finality to any decision of the Supreme Court.
There is no constitutional provision for the review of the judgment of the Court by itself. Indeed there can be no appeal questioning the decision of the Supreme Court to itself or anybody or person as there must be a finality to litigation. Hence, the appellate jurisdiction of the Supreme Court is limited by Section 233 (2) of the 1999 Constitution (as amended) of hearing appeals from the Court of Appeal only and no one.” See also Alhaji Alao v African Continental Bank Ltd. (2000) 9 NWLR (Pt. 672) 264 at 283.”
This position can also be found in the decision of Chukwuka & Ors v Ezulike & Ors (1986) 5 NWLR (Pt. 45) 892, where Uwais, JSC (as he then was) on the finality of the decision of this Court, stated thus:
There is no appeal in this Court against the decision of 12th November, 1985, and it is obvious that there cannot be such an appeal since no jurisdiction has been conferred upon this Court to sit on appeal over its own decision, no matter how manifestly
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wrong the decision may be. See Paul Cardoso v. John Bankole, Daniel & Ors (1986) 2 NWLR (Pt. 20) 1 at 28.
This Court in Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt.1956) page 126 – 127 per Belgore, JSC (as he then was) where it was held thus:
The Supreme Court can set aside its judgment in appropriate cases, when certain things are shown. Otherwise, its decision is final. As a matter of fact, Order 8 Rule 16 of the Supreme Court Rules, 1985 and the three principles enshrined therein demonstrate, unequivocally, a clear prohibition on the interference subsequently with the operative and substantive judgment of a Supreme Court or any part thereof except under the “Slip Rule” it is therefore now firmly settled that the judgment of the Supreme Court cannot be reviewed. In otherwords, the Supreme Court enjoys finality of its decisions.
Except for clerical mistakes or accidental slips or omissions, it seldom re-visits its decisions by way of review, variation or setting aside. Once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever. The law may
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in the future be amended to affect future matters on the same subject, but for cases decided, that is the end of the matter.
The decisions I have referred to above with their dicta have in effect settled the question raised in this application and for the avoidance of doubt the judgment of this Court delivered on the 4th of December, 2009 is final and for all time and there is nothing that can be done on it as the application lacks merit and in line with the lead judgment, I too dismiss it.
I abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the lead Ruling of my learned brother Amiru Sanusi, JSC just delivered.
In my opinion, the application at hand has no place or merit taking into consideration the reasons advanced by my brother in his ruling.
In the same vein and conclusion as the lead ruling therefore, I also refuse the application as it lacks merit.
EJEMBI EKO, J.S.C.: I read in draft the Ruling just delivered in this application by my learned brother, AMIRU SANUSI, JSC.
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The application seeks in the main an order setting aside the decision of this Court delivered on 4th December, 2009- SC.190/2006 ANAMELECHI ITEOGU, ESQ., v. L. P. D. C. In the application, it was erroneously stated that the said judgment of this Court was reported as ANAMELECHI ITEOGU v. LPDC (2009) 17 NWLR (pt. 117) 614. There is no such report. I however found that the judgment was reported as ANAMELECHI ITEOGU v. LPDC (2009) 12 SC. (pt. 1) 1.
At the petition of one Bishop Ndarake James Antigha the applicant was charged before the Legal Practitioners Disciplinary Committee (L. P. D. C) for professional misconduct. The applicant was tried and convicted for professional misconduct by the LPDC and on the direction of the LPDC the applicant’s name was struck off the roll of Legal Practitioners. He was in addition ordered to pay the sum of N9,500,000.00 to the complainant. The applicant aggrieved by the decision, direction and orders of the LPDC appealed to this Court. His appeal was unanimously dismissed by this Court for lacking in substance. The order dismissing this appeal was handed down since 4th December, 2009. The decision, direction and orders of
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the LPDC were all affirmed by this Court.
Eight years after the decision reported as (2009) 12 SC (pt. 1) 1, the applicant had brought this application praying this Court to set aside its judgment in the said appeal No. SC.190/2006 delivered on 4th December, 2009. The grounds for this application include the fact that
(1) The Supreme Court has no jurisdiction to entertain an appeal from the Legal Practitioners Disciplinary Committee as decided by the Court in the underlisted cases –
(i) ALADEJOBI v. NIGERIA BAR ASSOCIATION (2013) 13 NWLR (pt.1376) 66; and
(ii) ROTIMI WILLIAMS AKINTOKUN v. LPDC (unreported suit No.SC.111/2014 delivered on 16th May, 2014.
Agreed, in ALADEJOBI v. NBA (SUPRA) at page 101 this Court stated:
The Supreme Court lacks jurisdiction to hear appeals from the directions of the Legal Practitioners Disciplinary Committee of the Body of Benchers.
The applicant had apparently accepted the judgment in the appeal No. SC.190/2006. He now seeks the review of that judgment years after this Court had apparently departed from the stance it took in his appeal No. SC.190/2006 in the circumstances prevailing then.
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He now seeks the indulgence of this Court to set aside the judgment in the appeal No. 190/2006. He needs, firstly, to scale the hurdles on his way placed by Order 2 Rule 29(1) and Order 8 Rule 16 of the extant Rules of this Court.
Order 2 Rule 29 (1) of the Supreme Court Rules 1985 provides, inter alia, that an application to set aside any judgment or proceedings of this Court shall only be entertained by the Court if is made within a reasonable time. This application brought after 8 years since 4th December, 2009 to set aside the judgment delivered on 4th December, 2009 has not, in my view been brought within a reasonable time. A period of over 8 years of inaction is rather inordinate in the circumstance. Equity follows the law. Delay also defeats equity. Whatever justice there may be in this application has been defeated by the inordinate delay of over 8 years by the applicant to take this step to set aside the judgment delivered on 4th December 2009 on grounds of it being per incuriam or jurisdictional ultra vires.
Order 8 Rule 16 of the Supreme Court Rules, 1985, unambiguously or in clear terms, prohibits this Court from
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reviewing any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission”. The Court becomes functus officio once it gives and delivers any judgment. It cannot vary the judgment afterwards so as to give effect to its meaning or intention. This is what the applicant seeks this Court to do in this application. He has not called upon the Court to correct any clerical mistake or some error arising from any clerical mistake or some error arising from any accidental slip or omission. I should think clerical or error arising from any accidental slip or omission is distinct from intellectual error of assuming jurisdiction to entertain a matter the Court lacks jurisdiction to entertain in the first place. The latter calls for review; the former does not.
Let me make myself clear. I do not foreclose a situation where the Court has been called upon either to depart from earlier stance on point of law, or to set aside its decision on grounds of it being ex debito justitae. Order 2 Rule 29(1) of the Rules of this Court seems to contemplate an application to set aside any proceedings or judgment
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on grounds that the proceedings or judgment were rendered ex debito justitae. The power of the Court in this regard, or right of the applicant to invoke this power, must be exercised or invoked within a reasonable time.
The applicant has no doubt, apparently, misconceived the purport of Order 6 Rule 5 (4) of the Supreme Court Rules, 1985. When parties invite the Court to depart from one of its decisions, they invite the Court to do so in a subsequent appeal or application that is extrinsic and subsequent to the decision they want the Court to depart from. It is not the same thing as asking the Court to set aside its own judgment in view or in the light of another decision given or delivered subsequent to the decision they seek to set aside.
I find no substance in this application. I hereby concur in the Ruling of my brother, AMIRU SANUSI, JSC, and refuse this application. Application dismissed.
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Appearances:
U.K. Epuchie For Appellant(s)
P.B. Daudu, Esq. with him, H.M. Ibega, Esq. and A. Abu, Esq. For Respondent(s)
Appearances
U.K. Epuchie For Appellant
AND
P.B. Daudu, Esq. with him, H.M. Ibega, Esq. and A. Abu, Esq. For Respondent
