DR. BENEDICT IMHAROBERE OMEIKE v. PHARMACIST VIVIAN AWELE OMEIKE
(2012)LCN/5676(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2012
CA/B/415/2010
RATIO
“A State High Court like any other superior court of record has an inherent jurisdiction to amend or vary its own judgment or order to bring out its own meaning and to give effect to its plain intention. This inherent power is limited only to situations where there is a clerical mistake in the judgment or order where there is an error arising from an accidental slip or omission or where it is necessary to do so to bring out its meaning and to make its intention know. See F.B.N. Plc vs. Obade & Sons Ltd. (1998) 2 NWLR (Pt. 538) 410; Ovenseri vs. Osagiede (1998) 11 NWLR (Pt. 572) 1 SC. Generally speaking when a trial court has given judgment in a case on the merit, that court is functus officio in relation to the judgment one it is pronounced. It can not ordinarily re-open the case for a fresh hearing. A party dissatisfied with the judgment can only bring proceedings on appeal against it. INEC vs. Nuaji (2004) 16 NWLR (Pt.900) 473 CA.” Per SHOREMI, J.C.A.
“In Okpala vs. Ezeani (1999) 4 NWLR (Pt. 598) 250; Onwuchekwu vs. CCB (Nig) Ltd. (1999) 5 NWLR (Pt.603) 409. It is decided 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 slip or omission or to vary the judgment or order so as to give effect to its meaning or intention.” Per SHOREMI, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
DR. BENEDICT IMHAROBERE OMEIKE Appellant(s)
AND
PHARMACIST VIVIAN AWELE OMEIKE Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of S. O. Oigbokie, J. of the Benin Judicial Division delivered on 20/7 /2010.
On 22/2/2010 the respondent filed a motion on notice at the High Court of Edo State, Benin Division, against the appellant seeking an order setting aside the order of custody granted in favour of the appellant by the High Court of Edo State, Ekpoma Judicial Division in Suit No. HEK/41D/06 on 26th February, 2008.
Upon service of the aforesaid motion on him, the appellant on 15th March, 2010 filed a motion challenging the jurisdiction of the lower Court to hear and determine the aforesaid motion.
The trial court heard the aforesaid appellant’s motion and in a reserved ruling delivered on 20th July, 2010 it dismissed the motion.
Being dissatisfied with the aforesaid ruling, the appellant on 27th July, 2010 filed his appeal against it.
In his Ruling the trial Judge after hearing parties to the application concluded in his Ruling thus:
“Even if the section of the law under which she came to this Court does not avail her, she also brought this application under the inherent jurisdiction of this court and alternatively she prayed this cause “for such order or other orders as this Honourable Court may deem fit to make in the circumstances of this case”. In the case of Dakabiri Kim vs. Emefor (2009) All FWLR Pt. 494, 1431 p. 1445, per Onnoghen JSC paragraphs G-H. The Court being an impartial arbitrator must always consider both sides of a case before coming to a conclusion, not just the case of one of the parties, as to do so will result in grave injustice (summarized in ratio 4).
In the light of the aforementioned facts and authorities cited I am of the humble opinion that the judgment of the Ekpoma High Court delivered on 22/2/2008 was not on its merits, hence it was not final, as both parties were not heard. The judgment being a nullity due to the irregularity earlier referred to, the application for an order striking out this suit is hereby refused and the application dated 15/3/2010 is dismissed with no order as to costs. This motion on Notice dated 15/3/10 is hereby fixed for hearing on the 30th day of September 2010. There is no order as to costs.”
The grounds of appeal are contained in the Notice of Appeal dated 24/7/2010, filed on 27/7/2010 are as follows without particulars.
“Ground 1
The learned trial Judge erred in law when he held that he had jurisdiction to hear the Applicant/Respondent’s undated motion on notice filed in the lower court on 22nd February, 2010 notwithstanding the subsisting judgment of the High Court of Edo State, Ekpoma Judicial Division delivered in Suit No. HEK/41D/06 on 26th February, 2008.
Ground 2
The learned trial Judge erred in law when he set aside the judgment of the High Court of Edo State delivered in Suit No. HEK/41D/06 on 26th February, 2008 when the trial Court was completely lacking in competence and authority to so act.
Ground 3
The learned trial Judge erred in law when he held that the Applicant/Respondent’s right to fair hearing was breached by the trial court in Suit No. HEK/41D/06.”
In line with the Rules of this Court parties exchanged briefs and when the appeal came up for hearing on 15/10/2012, K. O. Obamogie Esq. of counsel to the appellant identified his brief dated 13/1/2011 and filed on I4/1/2011. He adopted same and relied on the argument contained therein as his argument in favour of the appeal and he urged the court to allow the appeal. O. O. Erhahon Esq. of counsel for the Respondent identified his brief as one dated 19/9/2011 filed on 20/9/2011 but deemed filed on 28/5/2012. He adopted same and relied on it as his argument. He urged this court to dismiss the appeal.
The appellant in his brief distilled two issues from three grounds of appeal-
(a) Whether or not the trial court has jurisdiction to hear and determine the respondent’s motion filed on 22/2/2010 seeking to set aside the order of Edodo-Eruaga in Suit No. HEK/41D/06.
(b) Was the Respondent right to fair hearing breached by the lower court in the proceedings leading to the judgment in Suit No. HEK/41D/06.
Giving the background story the appellant says as follows –
“The appellant and the respondent were married under the Marriage Act on 8th November, 2003. Following irreconcilable differences between the parties, the marriage broke down irretrievably. Consequently, the appellant filed against the respondent Suit No. HEK/41D/2006 at the High Court of Edo State, Ekpoma Judicial Division seeking the dissolution of his marriage to the respondent and custody of the children of the marriage.
The aforesaid divorce petition was heard on the merit after service on the respondent and judgment was delivered by the lower court on 26th February, 2008 substantially in appellant’s favour. No appeal was filed against the aforesaid judgment, which is set out at pp. 8-14 of the record of appeal.
On 22nd February, 2010 the respondent filed an originating motion numbered B/139M/2010 at the Benin Division of the lower court seeking the following reliefs:-
1. AN ORDER of this Honourable Court setting aside the order of Hon. Justice A. Edodo-Eruaga dated the 26th day of February, 2008, in Suit No. HEK/41D/06 granting custody of Stephanie Omeike and Eromonsele Omeike to the respondent herein.
ALTERNATIVELY
2. AN ORDER of the Honourable Court reviewing the order of Honourable Justice A. Edodo-Eruaga dated the 26th day of February, 2008 in Suit No. HEK/41D/06 granting custody of Stephanie Omeike and Eromonsele Omeike to the Respondent herein.
3. AN ORDER of this Honourable Court granting custody of Stephanie Omeike and Eromonsele Omeike to the Applicant herein.
Upon service of the aforesaid motion on him, the appellant on 15th March, 2010 filed a motion seeking, inter-alia, an order striking out the respondent’s motion on the ground that the lower court has no jurisdiction to hear and determine it. Appellant’s motion is at pp. 23-25 of the record.
The above objection was argued before the learned trial Judge who in a reserved ruling delivered on 20th July, 2010 overruled the objection and held that the lower court has the jurisdictional competence to hear and determine respondent’s application. The ruling of the lower court is at pp.41-55 of the record of appeal.”
In arguing his case on Issue one the appellant defined jurisdiction as the authority which a court has to decide matters that are litigated before it to take cognizance of matters presented in a formal way for its decision. Refers to Halsbury Laws of England 4th Edition paragraph 715 @ 323, Itaye vs. Ekaichen (1928) 9 & 10 SC 35 @ 45; Machukwu & Ors. Vs. Nkemdilim (1962) NLR (Pt. 2) 581. He argued that a court that has no jurisdiction will only deliver a judgment that is a nullity. Galadima v. Tumbai & Ors. (2000) 11 NWLR (Pt. 677) 915. He argued that in the instant appeal the court lacked the competence to review the judgment in Suit HEK/41D/06 in the manner formulated by the Respondent in her application as ultimately done by the trial court in its Ruling at pp. 52-53.
He urged the court to hold that the trial court gravely erred in law when it assumed appellate powers to declare the judgment of a co-ordinate jurisdiction in Suit No. HEK/41D/06 a nullity. He urged that Issue one be resolved in favour of the appellant.
The Respondent in his brief of argument agreed the principle that determines jurisdiction of a court. He also conceded that it is a general principle of law that a court has no power to review, alter or set aside the decision of a court of co-ordinate jurisdiction as decided in the case of Uku v. Okumagba (1974) NSCC 128 @ 140. He however argued that the court in the instant case derived its jurisdiction under S.114 of the Matrimonial Causes Act paragraph C which reads:-
“(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement, or education of children of the marriage, being proceedings in relation to concurrent, pending, or completed proceedings of a kind referred to in paragraph (a) or (b) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act. (emphasis ours).”
He argued that the application of the Respondent was brought under Order XIV Rules 1, 26 (1) (G & C) of the Matrimonial Causes Rule. He said a court of law has the inherent jurisdiction to set aside its own judgment or order where it is proved that the said judgment or order was obtained fraudulently or it was a nullity by any other reason. See Makinde vs. Adeogun (2009) 1 NWLR (Pt. 1123) 575. He concluded that the trial court has the statutory and inherent power to hear the application of the respondent.
Going by the argument of the respondent that a court has an inherent jurisdiction to review its own case the respondent misconceived the situation in the instant case. In Okpala vs. Ezeani (1999) 4 NWLR (Pt. 598) 250; Onwuchekwu vs. CCB (Nig) Ltd. (1999) 5 NWLR (Pt.603) 409. It is decided 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 slip or omission or to vary the judgment or order so as to give effect to its meaning or intention.
A State High Court like any other superior court of record has an inherent jurisdiction to amend or vary its own judgment or order to bring out its own meaning and to give effect to its plain intention. This inherent power is limited only to situations where there is a clerical mistake in the judgment or order where there is an error arising from an accidental slip or omission or where it is necessary to do so to bring out its meaning and to make its intention know.
See F.B.N. Plc vs. Obade & Sons Ltd. (1998) 2 NWLR (Pt. 538) 410; Ovenseri vs. Osagiede (1998) 11 NWLR (Pt. 572) 1 SC. Generally speaking when a trial court has given judgment in a case on the merit, that court is functus officio in relation to the judgment one it is pronounced. It can not ordinarily re-open the case for a fresh hearing. A party dissatisfied with the judgment can only bring proceedings on appeal against it. INEC vs. Nuaji (2004) 16 NWLR (Pt.900) 473 CA.
From the foregoing and from decided cases and principle of laws involved, it is my clear view that the judgment of the lower court delivered in Suit No. HEK/41D/2006 at pages 8-14 of the Records of Appeal was delivered by a court of co-ordinate jurisdiction. Consequently, the trial court in the appeal has no power to review alter or set aside the aforesaid judgment. See Uku vs. Okumagba (1974) NSCC 128 @ 140; Akporue vs. Okei (1973) NSCC 649.
Issue No. 1 is therefore resolved in favour of the appellant.
Having held that the lower court has no jurisdiction to entertain the application of the Respondent, it will be of no use to consider Issue 2 as it will only amount to an academic exercise.
In the event the Ruling delivered by Oigbokie J. on 20/7/2010 in Suit No. B/139M/2010 is set aside, the application of the Respondent is struck out for want of jurisdiction. Cost of N30,000.00 awarded against the Respondent.
TOM SHAIBU YAKUBU, J.C.A.: Having read the draft of the judgment of this court just delivered by my Lord, GEORGE OLADEINDE SHOREMI, JCA, with whom I entirely agree, I, also allow the appeal.
The court below, presided over by Oigbokie, J., had no vires whatsoever, to have ostensibly “sat on appeal” on the judgment of his learned brother, EDODO-ERUAGA, J., in respect of the Suit No. HEK/41D/2006 delivered on 26th February, 2008.
Therefore, the ruling of Oigbokie, J., dated 20th July, 2010 in respect of the suit No. B/139M/2010, is struck down and set aside, accordingly.
I abide by the order as to costs contained in the lead judgment.
TUNDE OYEBANJI AWOTOYE J.C.A.: I had the opportunity to read the draft of the judgment just delivered by my learned brother GEORGE OLADEINDE SHOREMI JCA. I am in total agreement with the reasoning and conclusion therein.
I also hold that the lower court had no jurisdiction to entertain the application of the Respondent. I set aside the Ruling delivered by Oigbokie J. on 20/7/2010 in Suit No. B/139m/2010.
The said application is struck out with N30,000 costs awarded in favour of the Respondent.
Appearances
K. O. ObamogieFor Appellant
AND
Osagie ObayuwanaFor Respondent
