FOUBIRI & ANOR v. ERIZIA & ORS (2020)

FOUBIRI & ANOR v. ERIZIA & ORS

(2020)LCN/14302(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, June 30, 2020

CA/PH/74M/2018(R)

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Between

KOFFI FOUBIRI 2. MACAULEY AKOSUBO (For Themselves And On Behalf Of Okorotomu People In Kolokuma/Opokuma Local Government Area Of Bayelsa State) APPELANT(S)

And

MILTON ERIZIA 2. ARTHUR EBIZIA 3. AMERICA TEME 4. EDWIN TEME 5. PEREOWEI EGURUZE (For Themselves And On Behalf Of Odemprerekumo Family Of Kaiama In Kolokumo/Opokumo Local Government Area Of Bayelsa State) RESPONDENT(S)

RATIO

ORDER OF THE COURT WHERE IT DISCOVERS THAT IT LACKS JURISDICTION IN A GIVEN MATTER

It is settled that the order the Court should make where it discovers that it lacks jurisdiction in any given matteris to strike out the case. See SALEH VS. MONGUNO (2003) 1 NWLR (Pt. 801) 221; OKAFOR VS. NNAIFE (1973) 1 All NLR (PT.1) 238; OKOLO VS. UBN LTD (2004) 3 NWLR (PT. 859) 87; TINUBU VS. KHALIL & DIBBO TRANS LTD (2000) 11 NWLR (Pt. 677) 171. PER SAULAWA, J.C.A.

WHETHER OR NOT DELAY TO DELIVER A DECISION WTHI THE STIPULATED LIMITED PERIOD OF 90 DAYS LEADS TO A JUDGEMENT BEING VITIATED OR NULLIFIED

By the provision of Section 294(5) of the 1999 Constitution (supra), any failure to deliver a decision within the stipulated limitation period of 90 days ought not to automatically render the proceeding or decision of the Court null and void. This proposition of law has indeed been reiterated in a plethora of formidable authorities. Most particularly, in the case of AKOMA VS. OSENWOKWU (2014) LPELR-22885 – (SC), the Supreme Court was reported to have aptly held:
“The delay perse does not lead to a judgment being vitiated or nullified …”
Per Galadima, JSC @ 30-32 paragraphs C-A; OWOYEMI VS. ADEKOYA (2003) 12 SC (Pt.1) 1; AKPAN VS. UMOH (1999) 7 SC (Pt. 11) 13. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): By the Motion on Notice thereof, the Applicants herein have sought the following reliefs:
I. An Order setting aside the Ruling or Order of this Honourable Court delivered on the 22nd day of February, 2018 striking out the Applicants appeal No. CA/PH/137/2015 for alleged default of transmitting complete record of proceedings in the matter to this Honourable Court.
II. An Order restoring and/or reserving the appeal for Judgment.
III. For such further or other Order or Orders as this Honourable Court may deem proper to make in the circumstance.

The Application is predicated upon 5 grounds and 3 Additional grounds. A 16 paragraphed Affidavit, deposed to by the 2nd Applicant, has equally been filed in support of the Application.

The Respondent filed a Counter Affidavit, deposed to by the 5th Respondent thereby vehemently objecting to the Application. This prompted the Applicants to file a 6 paragraphed Further Affidavit deposed to by the 1st Applicant on 28/05/2019.

On 16/06/2020, when the motion in question came up for hearing, the Learned Counsel to

the Respective parties had the opportunity of orally addressing the Court, thereby resulting in reserving the Ruling.

As copiously alluded to herein above, the Applicants pray for two reliefs, thereby urging upon the Court to set aside its earlier Ruling and Order delivered on 22/02/2018 striking out the Applicants Appeal for alleged default in transmitting the record of appeal. The second relief seeks an Order restoring the appeal in question and/or reserving the appeal for Judgment. The 5 grounds, upon which the application is predicated, are to the following effect:
1. The Applicants appeal was ripe and due for judgment and accordingly came up for Judgment on the 22nd day of February, 2018.
2. Unfortunately on the said 22nd day of February, 2018 the Judgment was not delivered on the merit, rather the appeal was struck out for an alleged default of the Appellants (Applicants) to transmit the exhibits in the matter from the lower Court to the Court of Appeal, which according to the Court, was tantamount to transmission of incomplete record of proceedings to this Honourable Court.
3. However, investigation and necessary inquiry by the

Appellants/Applicants at the Registry of this Honourable Court, through the Office of the Deputy Chief Registrar (litigations) and the exhibits keeper of this Honourable Court on the very 22/2/2018 when the appeal was struck out and immediately after the striking out Ruling, revealed that the exhibit in question had long been duly transmitted to this Honourable Court and are and have always been in the custody and possession of this Honourable Court before the 22/02/2018.
4. That the offending Ruling or Order of this Honourable Court issued on the 22/02/2018 was an Order arising from an alleged default in complying with the procedural requirement of this Honourable Court to wit: non transmission of complete record or proceedings from the lower Court to the Court of Appeal,
5. By the provision of Order 6 Rule 12 and Order 20 Rule 5(1) of the Court of Appeal Rules 2016 this Honourable Court is imbued with the power to set aside the said Ruling or Order being an Order given for non compliance with or purported default of transmitting complete record of proceedings, though unfortunately it turned out to be a default that is non existent and misconceived,

being one that arose out of the negligence or inadvertence of the Registry of this Honourable Court and not that of the Litigants.

Pages 3-5 of the said Application relate to what the Applicants termed “ADDED GROUNDS” (1 – 9), thereby citing and relying upon various authorities in support. Most particularly, the case of OBIOHA VS. IBERO (1994) 1 NWLR (PT. 322) 503 @ 523-524, wherein the Supreme Court laid down 4 exceptions to the general doctrine, that once a Judgment or Order has been passed and entered, the Court that gave it becomes functus officio and cannot set it aside.

At page 5 (paragraph 10) of the Application, the Applicants provided what they termed FURTHER AND FINAL GROUND,” thus:
a. The sin of the Registrar of this Honourable Court of not merging the exhibits already forwarded and deposited in the custody of this Honourable Court in respect of Appeal case No. CA/PH/137/2015 and forwarding same, i.e the exhibits with the record of proceedings to the presiding Justices of the Court of Appeal sitting over the appeal, ought not to be visited on the innocent litigants or Appellants as to deprive them of their Appeal

being determined on the merits.
b. That this Honourable Court is bound by the variously cited decisions of the Supreme Court and that of itself to the effect that a decision or Order of this Court arising from a default in complying with the rules of procedure or non compliance with procedural requirement can be validly set aside.

On 28/05/2019, the Applicants equally filed a Further Affidavit of the Application, deposed to by the 1st Applicant herein. Attached to the said Further Affidavit is the Judgment of this Court, Coram Akeju, Jombo–Ofo and Sanga, JJCA, delivered on 23/02/2018 in Appeal No. CA/PH/137/2015. Contrariwise, on 27/11/2019, the Respondents filed a counter Affidavit to the present Application (08/03/2018).

The said Counter Affidavit was indeed sworn to by the 5th Respondent, thereby controverting the following fundamental facts:
3. That the original appeal filed by the Applicants, being Appeal No. CA/PH/289/2010, was struck out at their instance. There was no evidence of exhibits transmitted in the appeal.
4. That the Applicants subsequently filed a fresh appeal, Appeal No CA/PH/137/2015, in 2015 which was

struck out as exhibits were not transmitted in this appeal.
5. That the Registry of this Court is not at fault in the striking out of Appeal No. CA/PH/137/2015 on 22/02/2018. The fault is that of the Applicants.

Curiously enough, however, despite the foregoing crucial facts deposed to by the 5th Respondent in the said counter Affidavit thereof, the Applicants have not deemed it appropriate or expedient to file a 2nd further affidavit with a view to controverting those salient averments. Thus, in the absence of any 2nd further affidavit controverting to the contrary, this Court has a duty to deem the averments deposed to in the Respondents’ counter affidavit as true and duly admitted by the Applicants.

What’s more, the fact that the Applicants had earlier filed the original appeal No. CA/PH/289/2010, which said appeal was struck out at their instance, is no longer in doubt. There was no evidence establishing that exhibits were transmitted to this Court in that appeal.

Consequent upon the striking out of the said appeal No.CA/PH/289/2010, the Applicants again filed a second appeal No. CA/PH/137/2015. That appeal was heard, and

Judgment reserved. Indeed, the Judgment in the said appeal (CA/PH/137/2015) was delivered on 23/02/2018, to the conclusive effect:
The clear implication of failure to transmit or make available the documentary exhibits is that the record of appeal before this Court is not the Complete Record. That was available at the lower Court has not been made available to this Court and it is obviously unjust to determine an appeal on incomplete record.
The consequence of not placing complete record of appeal before this Court is that the jurisdiction of this Court has not been galvanized or invoked. It is settled that the order the Court should make where it discovers that it lacks jurisdiction in any given matteris to strike out the case. See SALEH VS. MONGUNO (2003) 1 NWLR (Pt. 801) 221; OKAFOR VS. NNAIFE (1973) 1 All NLR (PT.1) 238; OKOLO VS. UBN LTD (2004) 3 NWLR (PT. 859) 87; TINUBU VS. KHALIL & DIBBO TRANS LTD (2000) 11 NWLR (Pt. 677) 171.
In the foregoing circumstances and in the application of the law this appeal is struck out so as to give the appellant another opportunity with respect to the appeal.
There shall be no order as to cost.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Per ISAIAH OLUFEMI AKEJU, JCA.

Undoubtedly, with both Jombo-Ofo and Sanga, JJCA concurring, the said judgment was a unanimous decision of this Court.

As copiously alluded to herein above, by the instant application thereof, the Applicants have urged upon this Court for:
(1) An order setting aside the ruling or order of this Honourable Court delivered on the 22nd day of February, 2018 striking the applicants appeal No. CA/PH/137/2015 for alleged default of transmitting complete record of proceedings in the matter to this Honourable Court.
(2) An Order restoring and/or reserving the appeal for judgment.
(3) For such further or other order or orders as this Honourable Court may deem proper to make in the circumstances.

Yet, it is crystally obvious on the face of the records, that the appeal No. CA/PH/137/2015 did not come up on the cause list on the “22nd day of February 2018” for ruling, nor was any order, made by this Court on that date in respect thereof. Thus, the Applicants’ relief No. (1) to the extent that this Court delivered a ruling or order on the alleged “22nd day of February, 2018,” is

grossly misconceived and highly preposterous, to say the least.

Contrariwise, however, the appeal No. CA/PH/137/2015 was actually listed on the cause list on the 23rd day of February, 2018 for delivery of judgment. As aptly evidenced by the Further Affidavit of the Applicants, Exhibit A attached thereto is the said judgment delivered on 23rd day of February, 2018. Thus, even on the basis of that gross misrepresentation of fact alone, the instant application deserves to be dismissed for lacking in merits.

Most crucially, the relief 2 of the application thereby praying this Court for –
“(2) An order restoring and/or reserving the appeal for judgment.”
is baseless and rather unmeritorious, for some obvious fundamental reasons.

Instructively, the said relief 2 of the applicants is reminiscent of the circumstances surrounding the decision of the Court of Appeal in IFEZUE VS. MBADUGHA (1984) LPELR – 1437 (SC), delivered on 18/05/1984.
The historical antecedents of IFEZUE VS. MBADUGHA (supra), relevant to the instant appeal, are that on 23/03/1981, the appeal from the Enugu High Court came before the Court of

Appeal Enugu Division, coram Aseme, Belgor & Olatawura, JJCA. The learned counsel to the respective parties argued the appeal, which was however adjourned to 26/03/1981 for continuation of hearing. On the said date, this Court adjourned and accordingly ordered thus: “Judgment reserved.”
However, nothing was heard of that appeal until when the Court’s records indicated that it was further adjourned to 16/11/1981. But instead of delivering the long awaited judgment on that date this Court ordered:
“Appeal is reopened and learned counsel are asked to address the Court whether order of non-suit is desirable in the circumstances of this case.”
Most undoubtedly, as at 16/11/1981, the undelivered judgment had cloaked 7 months and 3 weeks away from 26/03/1981, when it was initially reserved. Yet, by the provisions of Section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979, it was mandatorily required that:
258(1). Every Court established under this constitution shall deliver its decision in writing not later than 3 months after the conclusion of the evidence and trial addresses and furnish all

parties to the cause or matter determined with duly authenticated copies of the decision on the date of delivery thereof.
Most interestingly, the question that cropped up in the course of address by the learned counsel was:
Had the Court (of Appeal) the power indeed, the jurisdiction to “reopen” the appeal after the three months stipulated in the constitution for the delivery of judgment?
Consequent upon the address of counsel, the Court of Appeal immediately proceeded to deliver judgment, thereby non-suiting the plaintiff. Not unnaturally, the plaintiff appealed to the Supreme Court upon a total of 11 grounds of appeal against that decision.
In the course of the hearing of the appeal, the Apex Court deemed it expedient to extend invitation to senior counsel, including Chief FRA Williams SAN, to address it as amicus curiae, in regard to the interpretation of Section 258(1) of the 1979 Constitution.
Delivering the majority decision of the Apex Court, Aniagolu, JSC alluded to the historical setting preceding the enactment of Section 258 (1) of the 1979 Constitution; that some judges became notorious for very long

adjournments, thereby resulting in deprivation of advantage of forming fair impressions of witnesses and evaluation of evidence. See ARIORI VS. ELEMO (1983) 1 SC.
Thus, having accorded a painstaking consideration of the nature and circumstances surrounding the appeal, the submissions of the learned senior counsel vis-a-vis the plethora of formidable authorities referred to therein, his Lordship Aniagolu, JSC came to the following conclusion:
Finally, having regard to all the foregoing, I am firmly on the view that on a proper construction, the words of Section 258 (1) of the Constitution, having regard to the mischief intended to be prevented, the 1979 Constitution required that Judgment of the Court of Appeal in this matter be delivered within three months of its being “reserved” by that Court, after the hearing of the appeal and that failure to do so invalidated the so called Judgment after that period. The appeal must be allowed and is hereby allowed. The so called Judgment is declared null and void, and for the avoidance of doubt is hereby set aside. The appeal is remitted to the Court of Appeal before a different panel for

hearing and determination, according to law. The Appellant is entitled to the costs of this appeal which are assessed N300.00.
Irikefe, JSC (as he then was), Obaseki, Eso, Nnamani, and Uwais, JJSC concurred with Aniagolu, JSC.
However, Bello, JSC (as the learned Lord then was) in his notorious erudite characteristics dissented from the majority decision, and thereby came to the conclusion thus:
On the other hand, to construe the subsection directory will be a panacea for all the malaise and ills of its mandatory meaning. These are the reasons that induce me to put directory meaning to the subsection. Accordingly, I hold that the judgment of the Court of Appeal delivered of the first limb of Section 258(1) of the Constitution is valid.
It ought to be reiterated, that it was the decision of the Apex Court in IFEZUE VS MBADUGHA (supra), et al, that led to the eventual amendment of Section 258(1) of the 1979 and the introducing of Section 294(5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. By the provision of Section 294(5) of the 1999 Constitution (supra), any failure to deliver a decision within the

stipulated limitation period of 90 days ought not to automatically render the proceeding or decision of the Court null and void. This proposition of law has indeed been reiterated in a plethora of formidable authorities. Most particularly, in the case of AKOMA VS. OSENWOKWU (2014) LPELR-22885 – (SC), the Supreme Court was reported to have aptly held:
“The delay perse does not lead to a judgment being vitiated or nullified …”
Per Galadima, JSC @ 30-32 paragraphs C-A; OWOYEMI VS. ADEKOYA (2003) 12 SC (Pt.1) 1; AKPAN VS. UMOH (1999) 7 SC (Pt. 11) 13.
In the instant case, the judgment (CA/PH/137/2015) being sought to be set aside or reopened for the purpose of being reheard, reserved and re-delivered had actually been delivered on 23/02/2018. From that date to today is well over 2 years and 4 months. Thus, it would be not only unjudicial, but outrageously unjudicious for this Court to set aside the judgment in question. And the fact that doing so would result in flagrant miscarriage of justice to the Respondents, is no longer in doubt.

Hence, against the backdrop of the foregoing far-reaching postulations, the instant

application ought to be, and it is hereby adjudged to be grossly unmeritorious, and same is accordingly dismissed.
The Respondents shall be entitled to costs assessed at N50,000.00 payable personally by the recalcitrant Applicants learned counsel.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Ruling of my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA before it was delivered. I agree with the reasoning of my learned bother, and the conclusion that this application is grossly unmeritorious. I dismiss the application and abide by the consequential order.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading before now the erudite Ruling just delivered by my learned brother I. M. M. Saulawa, JCA.
I am in complete agreement with the sound reasoning and conclusion therein.
I have nothing more to add. I abide by the consequential orders in the said Ruling.

Appearances:

M.K. Akparanta For Appellant(s)

Saiyou For Respondent(s)