APOSTLE (DR.) MOSES ADETUNJI FASAWE v. ILORI OLAWOLE ADEKANBI & ANOR
(2013)LCN/6691(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/B/173M/2010 (R)
RATIO
WHETHER THE COURT OF APPEAL CAN REVIEW OR SET ASIDE ITS DECISIONS
It is settled that the Court of Appeal can only review or set aside its decision where the decision amounts to a nullity.
I.T.P.P. v. U.B.A. Plc (2006) 12 NWLR (Pt. 995) 483.
Jatau Vs. Ahmed (2003) 4 NWLR (Pt.811) 498. Per MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. APOSTLE (DR.) MOSES ADETUNJI FASAWE
(For himself and the entire member of Idobi Family Isuade, Owo) – Appellant(s)
AND
1. ILORI OLAWOLE ADEKANBI
2. HIS HIGHNESS OBA RUFUS ADENIBUYAN ALADETANYE – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on 14/10/2010, the Appellant/Applicants therein (now Respondents) sought an order that Suit No.HOW/4/2001 be heard de novo by another Judge by reason of the frustration of the appeal lodged thereto. The main ground of the application for that motion before this Honourable Court then, was that the appellants/applicants filed an appeal but the appeal could not be prosecuted “because the case file, records and exhibits were and are still missing at the Lower Courts Registry.”
In a considered Ruling delivered on the said application an 8/3/2012 by Kekere-Ekun JCA (as he then was) supported by Iyizoba and Adumein JJCA, this Court held at pages 16 – 17 of the Judgment as follows:
“….Where an appellant has done all that is required of him for the prosecution of his appeal and it is frustrated due to no fault of his, the Court has a duty to exercise its judicial powers in favour of enabling him to exercise his constitutional right of appeal. See: Akaide Vs. The State (1996) 8 NWLR (468) 525 at 530 – 531 H – G; System Metal Ind. Ltd. vs. Ehizo (2003) 7 NWLR (820) 460; Haastrup (W.A) Ltd. Vs. Welding Eng. Co. (Nig) Ltd. (1996) 9 NWLR (470) 92 at 98 E – F. The effect of all that I have said is that I am of the view and I do hold that the applicants herein have satisfied the Court that this is a proper case in which to exercise its discretion in their favour. The application has merit and is accordingly granted as prayed. It is hereby ordered that Suit No. HOW/4/2001 before the Ondo State High Court be heard de novo by another Judge of that Court. The Suit shall be granted an accelerated hearing there shall be no order of costs.”
Now, by a motion dated 2-7-2012 and filed on 3/7/2012, the applications who were Respondents in the motion at 14/10/2010 prayed this Court for:
“1. An order setting aside the decision/order contained in the Ruling of this Honourable court delivered in Appeal No.CA/B/173M/2010 on 8th March 2012 by Hon. Justice: Kudirat M. O. Kekere-Ekun JCA, Chinwe E. Iyizoba JCA and Moore A. A. Adumein JCA.
BETWEEN:
1. ILORI OLAWALE ADEKANBI
2. HIS HIGHNESS OBA RUFUS ADENIBUYAN ALADETANYE ( APPELLANTS)
AND
1. ALHAJI ALWANI OLUFAWOYE
2. APOSTEL (LDR) MOSES ADETUNJI FASAWE (RESPODNENTS)
(For themselves and the entire Members of Idobi family of Isuada)
2. An order allowing the certified true copy of the Bundle of documents pages 1 – 138 compiled by the Registrar of the High Court of Justice Ondo State in Suit No. HOW/4/2001 a copy of which is attached herewith as Exhibit ‘A’ be used as the records of Appeal in the said suit HOW/4/2001 in this Honourable Court with the directive of Court that the Appellants is at liberty to file additional records of Appeal if not satisfied with the said Bundle of documents marked Exhibit ‘A’ (supra).
3. An order abridging the period/time allowed by the Rules of this Honourable court within which the parties may file their respective Briefs of Argument in this case.
4. An order striking out the name of Alhaji Alawani Olufawoye the 1st Respondent in suit No. HOW 4/2001 who died in his sleep and was buried in his hometown on Saturday April 28, 2012 at Isuada Owo, Ondo State.
5. An order directing the Appellants/Respondents to file their bond of Appeal in this case at the registry of this Honourable Court being a condition required for the prosecution of this Appeal.
————————”
The grounds for the said application as stated in the body of the motion are as follows.
“1. Judgment was delivered in this case by the lower court on 13/3/2001 in favour of the Applicant.
2. The Respondents were dissatisfied and filed a Notice of Appeal contained at pages 136 – 139 of Exhibit “A”.
3. The Respondents thereafter filed a Motion on Notice dated and filed on 14/10/2010 with a relief that the said Suit No.HOW/4/2001 be heard De Novo by reason of the frustration of the appeal lodged before this Court.
4. The said Motion on Notice was heard and determined by this Court on 8/3/2012 and the Lower Court judgment was set aside and the case sent back for trial De-Novo.
5. The Applicant thereafter briefed the law firm of Kola Olawoye Esq. as a new counsel to prosecute this appeal as their counsel.
6. In view of the said Ruling of this Court delivered on 8/3/2012 Kola Olawoye Esq. petitioned the Chief Judge of Ondo State on 15/5/2012 on the allegation that the case file and the proceedings in How/4/2012 were missing and could not be found by the Respondents thereby preventing them from prosecuting and or exercising their right of appeal.
7. The Chief Registrar of the Ondo State High Court of Justice in a Reply dated 17/5/12 assured the Applicants new counsel that the petition would be looked into.
8. The alleged missing case file and the proceedings were eventually found at the Lower Court Registry and the Counsel to the parties were sent Notice to come for the compilation of the records of Appeal but the Respondents Counsel declined to compile same hence the Registrar of the lower court compiled same at the expense of the Applicant.
9. In view of the aforementioned grounds it is obvious that the order and or decision contained in the ruling of this Honourable Court delivered on 8th March, 2012 in appeal No.CA/B/173M/2010 was obtained by fraud or deceit either in the Court or of one or both of the parties to the said case.
10. The said Record of appeal is now ready a copy of which is attached here as exhibit “A’ hence this need for this present application”
On 11 – 11- 2013, Mr. Fakunle SAN of Counsel to the Applicant moved this Honourable Court and prayed for an order of this Court resiling from its earlier decision of trial de novo on the ground that there was deceit or fraud on the Court. He relied on the Applicants supporting affidavit of 13 paragraphs as well as the four (4) documentary exhibits attached to the motion on notice. He further urged that the application be allowed on the ground that a new event arose and the record of appeal is now before this Honourable Court.
Learned Counsel for the Respondent Oba S. K. Adedoyin on the other hand submitted that the Court lacks jurisdiction to entertain the application. He submitted that the provision of Order 20 Rule (2) of the Court of Appeal Rules 2011 is not relevant to this application because it deals with departure from the rules. And, that this Court is functus officio.
Learned Counsel for the Respondent submitted further that it has not been shown that the Ruling of the Court was a nullity nor was it shown that it was tainted with fraud.
He argued that the nearest provision in the Court of Appeal Rules 2011, that could have been invoked by the Applicants is the provision of Order 19 Rule 4 of the Court of Appeal Rules 2011 which however is not appropriate in this case because it helps only in the correction of clerical mistakes, accidental slips and omission and could not be used to vary or review a judgment once given.
He referred to the case of Rev. H. Onuaguluchi Vs. Ben Ndu & 2 Ors. (2001) 7 NWLR (Pt 712) page 309 at 322 – 323 and urged us to refuse and dismiss the application.
The central issue in this application is whether or not the applicants have fulfilled the necessary conditions for this Court to set aside its own judgment. This is because, as a general rule, when a Court has given judgment in a case that Court is functus officio in relation to the judgment once it is pronounced. It cannot ordinarily re-open the case for a fresh hearing. Also, there is always a presumption of correctness in favour of a Court’s judgment. Consequently, until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed.
See: S.P.D.C. (Nig) Ltd. V. X. M. Fed. Ltd. (2006) 16 NWLR (Pt.1004) 189. Oshiomhole v. F.G.N. (2005) 1 NWLR (Pt.907) 414.
However, at common law and equity, a person against whom a judgment had been procured by fraud is entitled to approach the Court by an action or motion to set aside the judgment. I.N.E.C. Vs. NACB C.F.C. LTD. (2007) 2 NWLR (Pt.1017) 155.
Also, a Court of Law has an inherent power and jurisdiction to set aside its own judgment or decision in appropriate cases. These will include: (a) where the judgment was obtained by fraud or deceit either in Court or of one or more of the parties, such a judgment can be impeached or set aside by means of an action which may be brought without leave; (b) when the judgment is a nullity, a person affected by such order is entitled ex debito justitiae to have it set aside, (c) where it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it; (d) where, in a cross-appeal, the respondent’s gross-appeal was not considered in the judgment; (e) where judgment was given in the absence of jurisdiction, (f) where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See Igwe Vs. Kalu (2002) 14 NWLR (Pt.787) 435.
N. S. Eng. Co. Ltd. vs. Ezenduka (2002) 1 NWLR (Pt.748) 469.
Ukachukwu Vs. Uba (2004) 10 NWLR. (Pt.881) 294.
In the instant case, there is no evidence or indeed anything to show that any of the enumerated conditions on which a Court could set aside its decision was fulfilled by the Applicants.
The Applicants Affidavit in support as well as the oral submissions of Learned Senior Counsel for the applicants emphasized that the reason for bringing the application is the discovery of new facts after the Ruling of 8/3/2012 by this Honourable Court. However, it has never been the position of the law that a Court would set aside its earlier decision on the basis of the discovery of new facts which did not amount to fraud and which did not prevent the exercise of the Court’s jurisdiction at the time of delivery of the judgment or which rendered the previous judgment a nullity.
The more germane paragraph of the Applicants affidavit in support of the application in this case did not reveal or bring out any of the necessary ingredients by which a Court would set aside its previous decision. For ease of reference, paragraph 7, 10, 15 and 17 of the Applicants supporting affidavit read as follows:-
“7. That the reason why this Court remitted the said Suit HOW/4/2001 back to the Lower Court for trial De-Novo was the complaint of the Applicants/Respondents herein that the case file and the records of proceedings were missing thereby preventing them from compiling the records of appeal in pursuant of their constitutional right of Appeal against the judgment in exhibit “B” (Supra).
10. That shortly after the receipt of exhibit “E” (Supra) the Principal Registrar of the Owo Judicial Division of the Ondo State High Court of Justice informed me in chambers on 7/6/2012 and I verily believe that he was in custody of both the case file and record of proceedings in HOW/4/2001 that were alleged to be missing by the appellants/Respondents in this case, the basis upon which they obtained the Ruling in exhibit “C” (supra).
15. That from all facts that I deposed to herein above and the contents of exhibits “H” (Supra), I strongly believe that the case file the records of proceedings in HOW/4/2001, were intact and not missing at anytime in the registry of the Lower Court but this Honourable Court was deliberately misinformed and or deceived into given the decision and order contained in the Ruling delivered on 8/3/2012 Exhibit “C” (Supra) in favour of the Appellants/Respondents.
16. That as an officer of this Honourable Court I sincerely and honestly believe that if this Court had formally informed the lower Court Registrar of the allegation of the Appellants/Respondents on the said missing case file and records of proceedings in HOW/4/2001 prior to the delivery of the ruling in exhibit “C” (supra) this court would have discovered that the said case file and records of proceedings were in fact intact and available for the use of the Respondents.
17. That now that the said records of Appeal contained 138 pages i. e. exhibit “A” (Supra) is now before this Honourable Court. It will be in the interest of Justice to give it an Appeal Number and grant the reliefs contained in the Motion on Notice before this Court.”
Some of the paragraphs in the supporting affidavit of the present Applicants who were Respondents to the motion of 14/10/2010 which culminated in the Ruling of 8/3/2012 (and indeed Respondents to the appeal) would tend to suggest that they were helpless to seek a solution in producing the record of proceedings at the time the motion of 14/10/2010 was being contested between the parties.
All of these, in my humble opinion boil down to the fact that the discovery of new facts and/or circumstances in relation to the then missing record of proceedings would not be a valid or recognized ground for this Court to resile from or set aside its earlier decision of trial de novo in the case on appeal.
It is settled that the Court of Appeal can only review or set aside its decision where the decision amounts to a nullity.
I.T.P.P. v. U.B.A. Plc (2006) 12 NWLR (Pt. 995) 483.
Jatau Vs. Ahmed (2003) 4 NWLR (Pt.811) 498.
In the instant case, there is no suggestion that the Ruling delivered by this Court on 8/3/2012 was a nullity, or was obtained by fraud. This application has no merit and it is accordingly refused, Applicant’s motion dated 2/7/2012 and filed on 3/7/2012 is hereby dismissed.
There shall be no order as to costs.
SOTONYE DENTON WEST, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mojeed Adekunle Owoade, J.C.A, who dealt convincingly with all the issues raised in this appeal that leads me to adopt his reasoning and conclusions as my own, giving me no alternative than to concur with the said lead judgment.
I thereby abide by all the consequential orders made therein.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree with the very sound reasoning and conclusions reached in the ruling just delivered by my learned brother OWOADE, JCA.
At a point in time this court was approached by the current respondents who at the time were appellant/applicants with a motion on notice dated and filed 14/10/2010 wherein they sought an order of the court that suit nos. HOW/4/2001 be heard de novo by another Judge of the High Court by reason of frustration of the appeal lodged thereto. The main ground of the application at the time was that they the appellants/applicants had filed an appeal but could not prosecute same “because the case file, records and exhibits were and are missing at the Lower Court’s Registry.”
Now, it was based on the bare and clear affidavit facts laid before this court by parties to the said motion that caused the court in a considered ruling delivered 8th March, 2012 to grant the motion as prayed. In fact the relevant portion of the ruling granting the motion reads thus:
“…The application has merit and is accordingly granted as prayed. It is hereby ordered that Suit No. HOW/4/2001 before the Ondo State High court be heard de novo by another Judge of that court. The suit shall be granted an accelerated hearing. There shall be no order of costs.”
The then respondents are now back to this same court as applicants in the instant motion dated 2nd July, 2012 and filed 3rd July, 2012 to ask the court to set aside that its subsisting ruling delivered on the said 8th of March, 2012 without meeting the preconditions of satisfying us that the ruling was obtained by fraud or that it amounts to a nullity. It is my firm view that this court is functus officio as it were in the matter. We lack the requisite jurisdiction to revisiting our earlier order under any other imaginable circumstances except where the decision is shown to be a nullity or to have been obtained by fraud. Incidentally applicants herein have not shown any of these factors to be the case.
This motion undoubtedly lacks merit and is accordingly refused. I too shall dismiss same and it is so dismissed.
Appearances
O. O. Olabiwonnu MissFor Appellant
AND
O. S. AderibigbeFor Respondent
