CHRISTIAN ABBA V. HON. AUGUSTINE ADIKPE & ORS. (2010)

CHRISTIAN ABBA V. HON. AUGUSTINE ADIKPE & ORS.

(2010)LCN/3572(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of February, 2010

CA/J/EP/HR/160M/2009

RATIO

JUDGMENT: WHEN IS A JUDICIAL DECISION DEEMED TO BE FINAL

The decision of the subject’ matter of this application to my mind falls under the category of a final decision particularly when the provisions of Section 246(3) of the 1999 Constitution apply to it.

The Courts in interpreting the above provisions have held; See Ummah vs. Attah (2006) 17. NWLR (Part 1009) 503 per Mohammed JSC at 531;

”This of course means that pursuant to the clear provisions of Section 246(1)(b)(1),(ii) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 the decision of the Court of Appeal in exercise of its jurisdiction arising from an election petition is final and the substance of the action cannot be brought again before any other court including this Court for fresh or further adjudication”.

See also Okonkwo vs. Ngige (2007) 12 NWLR (Part 1047) 191; Onuaguluchi vs. Ndu (2001) 7 NWLR (Part 712) 309; Awuse vs. Odili (2003) 18 NWLR (Part 851) 116.

JUDGMENT: WHETHER A COURT CAN REVIEW ANY JUDGMENT DELIVERED

“A 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 slips or omission or to vary the judgment or order so as to give effect to its meaning or intentions. Also, where an appropriate law provides for finality of such decision, it cannot be interfered with either by way of appeal or by the employment of any prerogative writ or proceedings.”

Okpala vs. Ezeani (1999) 4 NWLR Pt. 598 Pg 250, Onwuchekwa vs. C.C.B. (Nig) Ltd. (1999) 5 NWLR Pt. 603 Pg 409, Stirling Civil Eng (Nig.) Ltd vs. Yahaya (2005) 11 NWLR Pt. 938 Pg 181.

I agree that once a Court delivers its judgment it become functus officio. Thereafter the Court can only correct accidental slips or arithmetical errors. PER UZO NDUKWE-ANYANWU, J.C.A

JUSTICES:

ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

Between

CHRISTIAN ABBA – Appellant(s)

AND

1. HON. AUGUSTINE ADIKPE
2. PEOPLES DEMOCRATIC PARTY
3. RETURNING OFFICER H/R OBI/OJU FEDERAL CONSTITUENCY
4. RETURNING OFFICER H/R OJU
5. RETURNING OFFICER H/R OBI
6. PRESIDING OFFICER OYINYIN P/UNIT
7. PRESIDING OFFICER ANCHIMOGBO POLLING UNIT
8. PRESIDING OFFICER OHIRIGWE
9. PRESIDING OFFICER ODALEKO POLLING UNIT
10. PRESIDING OFFICER OKPENEHI POLLING UNIT
11. PRESIDING OFFICER OYIWO P/UNIT
12. PRESIDING OFFICER OBEGEDE/OGODODO POLLING UNIT.
13. PRESIDING OFFICER BARRACKS 1, II & III POLLING UNITS
14. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

Z. A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): This is an application filed on the 24th June, 2009 brought pursuant to Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria and Order 7 Rule 1 of the Court of Appeal Rules, 2007 wherein the applicant prays for:
‘An order of this Court that a fresh panel of this Honourable Court sets aside ex-debito justiciae its own judgment in appeals Nos.CA/J/EP/HR/106/08; and CA/J/EP/HR/106A/08, Augustine Adikpe Vs. Christian Abba and 13 Ors., consolidated and delivered by this Court on the 31st March, 2009 for being a nullity’.
The grounds upon which the application is predicted upon are;
(a) The said judgment was delivered in breach of Section 36(1)of the 1999 Constitution of the Federal Republic of Nigeria.
(b) The court was misled into giving its judgment the way it did.
(c) The procedure adopted by this Honourable Court in the judgment delivered on the 31st March, 2009 deprived the said decision the character of a legitimate adjudication.
The respondents to the application in particular 1st and 2nd respondents filed counter affidavits in reply to the affidavit in support of the application, they at the same time filed notices of preliminary objection to the hearing of the application.
The respective preliminary objections were argued and replied to at the last adjourned date. I will in the circumstances determine the 2 preliminary objections first before considering the applications if the decision so warrants.
The 1st respondent’s objection filed on the 20/7/2009 is to the effect that this court lacks the jurisdiction to entertain the application that seeks the court to review and set aside its judgment in consolidated appeals Nos. CA/J/EP/HR/106/2008 and CA/J/EP/HR/106A/2008 Augustine A. Adikpe Vs. Christian Abba & Others and urges the court for an order striking out the motion for lack of jurisdiction.
The grounds of the said objection being that;
(1) That this Honourable court heard arguments on the merits front all parties on the appeals and gave a final judgment on the appeals on 31/3/2009.
(2) That once an issue or issues have been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow parties to re-open the same for re-litigation.
The said preliminary objection is supported by an affidavit of 3 Paragraphs and a written address; this was relied upon and adopted at the hearing of the preliminary objection. In the written address, the 1st respondent raised this issue.
Whether this Court has the jurisdiction to review the final judgment delivered by it in Appeal Nos.CA/J/EP/HR/106/08 and CA/J/EP/HR/106A/08 delivered on 31st day of March, 2009.
Addressing us on this issue, Udaga Esq., of counsel for the 1st respondent submits that the appeals in respect of which this application is brought, had been heard and determined by the Court on the merit and that by the express provisions of Order 18 Rule 4 of the Court of Appeal Rule, 2007 which is a mandatory provision, the Court lacks the jurisdiction to review its final judgment.
Referring and relying on Onwuchekwa vs. CCB Ltd. 1999 5 NWLR (part 603) 409; John and Sons & Co. Ltd. Vs. NCRI (1997) 2 SCNJ 157; Nwosu vs. Imo State Environmental Sanitation Authority 1990-2 NWLR (Part 135) 688, he submits that the position of the law is that once a court gives judgment in a matter it becomes functus officio to either direct or allow the parties to re-open the same for re-litigation.
That in the case at hand, in the final judgment of this court given on 30th March, 2009, there was an examination of the facts and materials placed before the Court upon which the Court delivered a considered judgment in accordance with the provisions of the rules of court. He therefore, contends that the court lacks the competence to re-open the matter for re-litigation and urged us to decline jurisdiction in the application as it is frivolous, an abuse of court process and filed in recklessness with intent to annoy the respondents.

The 2nd respondent’s preliminary objection is supported by a paragraphs counter affidavit and a written address. While moving same before us learned counsel to the 2nd respondent relied on the averments and adopted the written brief wherein he identified this issue for the determination of the preliminary objection. Whether having regard to the provisions of Section 246(3) of the 1999 Constitution of the Federal Republic of Nigeria read along with Order 18 Rule 4 of the Court of Appeal Rules, 2007, this Honourable Court has the jurisdiction to review or sit on appeal over its judgment delivered on the 23rd of March, 2009.
On the issue he submits, that the judgment as delivered by this Court on the 31/3/2009 is a final and conclusive judgment within the meaning of Section 246(3) of the 1999 Constitution and is binding on the parties thereto forever. That neither appellant nor respondent is permitted by law to return to the Court to seek a review of the final judgment except where ”there is a clerical mistake or some error arising from an accidental slip or omission, or there is need to vary the judgment or order so as to give effect to its meaning and intention”. (Order 18 Rule 4 Court of Appeal Rules, 2007).
2nd Respondent contends that this is not one of the situations as laid down by the Supreme Court where a Court can review or set aside its decision as none of the situations is applicable to the circumstances of this case. He submits that the judgment was not delivered in breach of Section 36(1) of the 1999 Constitution, nor was the Court misled into giving its judgment nor was the procedures adopted by the Court deprive the judgment the character of a legitimate adjudication. Relying most particularly in Okonkwo v. Ngige (2007) 12 NWLR (Part 1047) 191; Ummah vs. Attah (2006) 17 NWLR (Part 1009) 503; Igwe.vs. Kalu (2002) (Part 787) 435; Ukachukwu vs. Uba (2005) NWLR (Part 956) 1. We were urged to uphold the preliminary objection.
The applicant filed separate counter affidavits and written briefs in response to the two objections. These he adopted and relied upon.
In reply to the 1st and 2nd respondents’ preliminary objections, he filed a counter affidavit of 3 paragraphs. He relied on all the averments and submits, in his written address and before the court on the issue he raised:
‘Whether there is established, as in this case, that the judgment of the court is a nullity, the court has the powers to set the same aside’.
That the application was premised on the belief of the applicant that in the judgment sought to be set aside his constitutional right to fair hearing was breached as the court suo motu introduced Form EC8E without giving the applicant the chance of being heard, and using the said form as the basis of its final judgment, the decision has been rendered a nullity. That the decision can therefore not stand in law. That the only way applicant can get redress in the circumstances is by an application to have the decision set aside. We were urged to overrule the preliminary objection.
The relevant provisions of the law applicable to this objection to my mind are Sections 36(1) and 246(3) of the 1999 Constitution and Order 15 Rule 4 of the Court of Appeal Rules, 2007, they are reproduced hereunder for ease of reference. Section 36(1) (supra):
‘In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality’.
Section 246(3) (supra);
The decisions of the Court of Appeal in respect of appeals arising from election petition shall be final.’
Order 15 Rule 4 Court of Appeal Rules, 2007 provides;
‘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 of 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 varied and a different form substituted’.
The application which is objected to by the respondents sought to have the judgment delivered on the 30/3/2009 on two consolidated election petition appeals set aside, the reason being that an issue was decided and pronounced upon by the Court suo motu without giving the applicant the chance of being heard, in effect his constitutional right to fair hearing was breached under Section 36(1) of the Constitution. The decision complained against decided the rights of the parties and disposed of the subject matter of the appeal.

A judicial decision is deemed to be final when there is nothing to be heard or judicially determined between the parties. It is therefore absolute complete and certain and capable of being-executed where it is not appealed against.
The decision of the subject’ matter of this application to my mind falls under the category of a final decision particularly when the provisions of Section 246(3) of the 1999 Constitution apply to it.
The Courts in interpreting the above provisions have held; See Ummah vs. Attah (2006) 17. NWLR (Part 1009) 503 per Mohammed JSC at 531;
”This of course means that pursuant to the clear provisions of Section 246(1)(b)(1),(ii) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 the decision of the Court of Appeal in exercise of its jurisdiction arising from an election petition is final and the substance of the action cannot be brought again before any other court including this Court for fresh or further adjudication”.
See also Okonkwo vs. Ngige (2007) 12 NWLR (Part 1047) 191; Onuaguluchi vs. Ndu (2001) 7 NWLR (Part 712) 309; Awuse vs. Odili (2003) 18 NWLR (Part 851) 116.

By the provisions of Order 18 Rule 4 of the Rules of this Court, the Court shall not review its judgment once delivered save to correct any clerical mistake or error arising from any accidental slip or omission. Nor shall it be varied when it correctly represents what the court decided; nor shall it be substituted with a different form from the operative substantive part.
The applicant is asking the court to declare the judgment a nullity as his right to fair hearing had been infringed upon. To arrive at that finding the court would have to look into the judgment in its totality i.e. examine whether as maintained by the applicant he was not heard by the court prior to its decision of 30/3/09 and make a finding as to whether the judgment was a nullity or otherwise. Such an exercise in my view is an appeal opined in the form of the application. From whichever angle you look at it, the application will involve the re-opening and re-litigation of the appeal for it will give the appellant the chance of having an appeal which has been heard and determined reheard again against the clear provisions of Section. 246(3) 1999 Constitution and Order 18 Rule 4 of the Court of Appeal Rules.
The decision of this Court of 30/3/2009 whether wrongly or rightly was determined on the merits and it is final. This Court is functus officio to have any application which is not subject to the exceptions in Order 18 rule 4 of the Rules of this Court.
The two preliminary objections by the 1st and 2nd respondents are upheld and the court lacks the competence to hear the application filed by Christian Abba on 24/6/2009. It is accordingly struck out.
Cost of N20,000.00 to each of the two respondents against the applicant.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I had read the lead ruling prepared and delivered-by Her Lordship, Bulkachuwa, JCA. Having critically, albeit dispassionately, perused the motion papers, filed on 18/01/09, the 2 counter affidavits of 1st & 2nd Respondents, filed on 23/10/09 & 19/01/09, the 2 notices of preliminary objection, filed on 21/10/09 & 24/6/09, et al, I concur with the reasoning and conclusion reached in the lead ruling, to the effect that the application is grossly incompetent.
Having adopted the reasoning and conclusion reached in the lead ruling as mine, I have no hesitation whatsoever in striking out the application in question, for being grossly incompetent.
I abide by the order of cost of N20,000.00 awarded to the 1st & 2nd Respondents, against the Applicant.

UZO NDUKWE-ANYANWU, J.C.A: I have had the privilege of reading before now, the Ruling just delivered by my learned brother, Bulkachuwa, JCA. I agree with the reasons and conc1usions therein. However, for emphasis I must add that- “A 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 slips or omission or to vary the judgment or order so as to give effect to its meaning or intentions. Also, where an appropriate law provides for finality of such decision, it cannot be interfered with either by way of appeal or by the employment of any prerogative writ or proceedings.”
Okpala vs. Ezeani (1999) 4 NWLR Pt. 598 Pg 250, Onwuchekwa vs. C.C.B. (Nig) Ltd. (1999) 5 NWLR Pt. 603 Pg 409, Stirling Civil Eng (Nig.) Ltd vs. Yahaya (2005) 11 NWLR Pt. 938 Pg 181.
I agree that once a Court delivers its judgment it become functus officio. Thereafter the Court can only correct accidental slips or arithmetical errors.
For the more robust reasons and conclusions in the lead Ruling I also uphold the two preliminary objections and strike out this application by the applicant Christian Abba. I abide by the order as to cost in the lead Ruling.

Appearances

Ocha P. Ulegede Esq.; For Appellant

AND

S.A. Udaga;
Chief E.K. Ashieka
o. Osaze Uzzi with him
Ngunan Dennis Ter (Mrs.) and
Stephen Ibyem For Respondent