MICHAEL OLUWOLE WENDE v. ABIODUN LONGE & ORS.
(2011)LCN/4934(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of November, 2011
CA/I/141/07
RATIO
SETTING ASIDE A JUDGMENT: EXCEPTIONS TO THE GENERAL RULE THAT A COURT OF LAW HAS NO JURISDICTION TO SET ASIDE ITS OWN ORDER OR JUDGMENT
Thus in the normal course of events this Court is functus officio and has no jurisdiction to relist the appeal dismissed on 25/6/09. There are however exceptions to the general rule that a court of law has no jurisdiction to set aside its own order or judgment. It was held in the case of Associated Discount House Ltd. Vs Amalgamated Trustees Ltd. (2007) ALL FWLR (392) 1781 @ 1840 C – F that a superior court of record has inherent powers to set aside its judgment in appropriate cases. Such cases were stated as follows: i. “When the judgment is obtained by fraud or deceit. ii. When the judgment is a nullity such as when the court itself was not competent; or iii. When the court was misled into giving judgment under a mistaken belief that the parties consented to it; or iv. Where judgment was given in absence of jurisdiction; v. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.” The following cases were cited with approval: Alao Vs A.C.B. (2000) FWLR (11) 1858; (2000) 9 NWLR (672) 264; Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Igwe Vs Kalu (2002) 14 NWLR (787) 435; Chime Vs Ude (1996) 7 NWLR (461) 379; Ogbu Vs Urum (1981) Vol. 12 NSCC 81; Skenconsult Nig. Ltd. Vs Ukey (1981) Vol. 1 12 N.S.C.C. 1; Obimonure Vs Erinosho (1966) ALL NLR 245. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
FUNCTUS OFFICIO: THE RATIONALE BEHIND THE PRINCIPLE “FUNCTUS OFFICIO”
The rationale behind the principle of law that a Judge becomes functus officio (meaning “task performed) once he has given a decision in a matter, was explained in the case of Onyemobi vs. President O.C.C. (1995) 3 NWLR 53 at 58H per Tobi- JCA (as he then was) thus: (i) ” A court like the parties and their counsel cannot blow hot and cold with the same breath. (ii) A court cannot sit on appeal over its own judgment, (iii) It is the jurisdiction of an appellate court to pronounce on the decision or order of the court of first instance. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MICHAEL OLUWOLE WENDE – Appellant(s)
AND
1. ABIODUN LONGE
2. JIMOH OJO JIDAHUN
3. OGUNDEJI OGUNDARE – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Lead Ruling): The appellant/applicant herein filed a motion on notice dated 19/5/2011 and filed on 24/5/2011 seeking the following reliefs:
1. An order for leave of this Honourable Court setting aside the order of the Court of 25th day of June 2009 in Appeal No. CA/I/141/07 between MICHAEL OLUWOLE WENDE & SAMUEL AYO LONGE & ORS.
2. An order for leave of this Honourable Court vacating the order of the court of 25th day of June 2009 in Appeal No. CA/I/141/07 between MICHAEL OLUWOLE WENDE & SAMUEL AYO LONGE & ORS.
3. An order for leave of this Honourable Court to restore and relist Appeal No. CA/I/141/07 between MICHAEL OLUWOLE WENDE & SAMUEL AYO LONGE & ORS to be heard on merit.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
The grounds for the application are as follows:
1. The appeal came up for the first time in this Court on 25th day of June 2009 and same was dismissed on the same day.
2. Hearing Notice issued by the Court in respect of sitting of the Court for 25th day of June 2009 was never served on the Appellant/Applicant.
3. Lack of fair hearing.
4. Lack of jurisdiction,
5. It will be in the interest of justice to grant the application.
The application is brought pursuant to Order 8 Rule 20 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court. It is supported by a 32-paragraph affidavit deposed to by the applicant himself. Attached thereto are several exhibits marked A – C respectively.
In reaction to the motion, the 3rd respondent deposed to a 37-paragraph counter affidavit with two exhibits annexed thereto and marked Exhibits A and B. The respondents also filed a notice of preliminary objection to the motion. Both processes are dated and filed on 6/6/2011. The preliminary objection is to the effect that the order of this court dismissing the appeal on 25/6/09 being a final decision, this court is thus functus officio and lacks jurisdiction to revisit its decision; that the applicant’s only option is to appeal against the decision but the time within which to do so has expired; that the applicant has failed or neglected to pay the N50,000.00 costs awarded against him. At the hearing of the application on 12/10/2011 we directed that the preliminary objection should be argued along with the counter affidavit in opposition to the application.
The facts that gave rise to this application, as deposed to by the appellant in his supporting affidavit are that the judgment of the High Court of Osun State, subject of the appeal, was delivered on 24th July 1998. The appellant was dissatisfied with the judgment and instructed his counsel to appeal against it. The record was not transmitted to this court until the year 2007. The appellant averred that since the service of the notice of appeal on the respondents, he diligently tracked the progress of the appeal and was always reassured by his counsel that he would be served with a hearing notice when a date was fixed for the appeal. There were moves to settle the matter amicably out of court and it was during preliminary meetings with a view to an amicable settlement that he received a letter from learned counsel for the respondents, N.O.O. Folorunsho Esq., informing him that the appeal had been dismissed and demanding costs of N50,000.00, which were awarded against him. He averred that his counsel did not receive any hearing notice against 25/6/09, which was the first day the appeal came up for hearing. He also averred that notwithstanding the fact that the Court Registrar informed the court that the appellant had not been served with a hearing notice, it proceeded to dismiss the appeal upon the oral application of learned counsel for the respondents with N50,000.00 costs awarded against him. The letter from Mr. Folorunsho, learned counsel for the respondents is marked Exhibit A while the certified true copy of the order of this court dismissing the appeal pursuant to Order 17 Rule 10 of the Court of Appeal Rules 2007 is marked Exhibit B. The affidavit of non-service deposed to by a bailiff of the court is marked Exhibit C.
The appellant also averred that as at 25/6/2011 the 1st and 2nd respondents were deceased. He averred that his counsel brought this fact to the court’s attention at the sitting of 9th March 2011 and that learned counsel for the respondents was directed to regularise his position. Consequently he filed an application for substitution, which was granted on 3/5/2011. It is further averred that the appellant has substantial grounds of appeal.
It is the contention of the respondents in their counter affidavit that the applicant was never diligent in prosecuting his appeal and that it took nine years from the filing of the notice of appeal for the record to be transmitted to this court and that after the transmission of the record the applicant went to sleep and failed or neglected to file his brief of argument. It is also averred that the original 1st respondent died on 11/11/09 and not before 25/6/09 as alleged by the applicant.
In moving the application, Olaniyi George Esq., learned counsel for the applicant relied on all the averments in the supporting affidavit and the exhibits annexed thereto. He enumerated the circumstances in which a superior court could set aside its own judgment, as stated by the Supreme Court the case of: Associated Discount House Ltd. Vs Amalgamated Trustees Ltd. (2007) 10 MJSC S9 @ 58. He referred to paragraphs 16 and 17 of the supporting affidavit and Exhibit C (the affidavit of non-service) wherein it is averred that the appeal came up for the first time on 25/6/09 and that there was no proof of service of hearing notice on the applicant. He submitted that the court lacked jurisdiction to entertain the matter in the absence of service on one of the parties. He submitted that learned counsel for the respondent misled the court by failing to inform their Lordships that some of the respondents were dead at the time the order was made. On the need to inform the court of the death of a party he referred to the case of: Okomu Oil Palm Ltd. Vs Okpane (2007) ALL FWLR (355) 449 @ 460 F – H; (2007) 3 NWLR (1020) 71 @ 85 C-E.
On the importance of service of hearing notice on a party he referred to: Nig. Sugar Co. Ltd. Vs Mojec International Ltd. (2005) ALL FWLR (262) 475 @ 479; Ali Vs Albashir (2008) ALL FLWR (415) 1681 @ 1716 B – E. By a letter dated 20/10/2011 addressed to the Registrar of this Court and copied to learned counsel for the respondents, learned counsel cited an additional authority on service of hearing notice, to wit: Alhaji A. Odutola Vs Inspector Kayode (1994) 2 NWLR (324) 1.
In response to the submissions of learned counsel for the applicant, N. O. Folorunsho Esq., learned counsel for the respondents relied on the preliminary objection filed and all the paragraphs of the counter affidavit. He submitted that this court having dismissed the appeal on 25/6/09 has become functus officio, as it is a final decision and that the applicant’s only option is an appeal to the Supreme Court. Learned counsel submitted that the applicant did nothing to prosecute the appeal until he was served with the letter demanding the costs awarded against him upon the dismissal of the appeal. He argued that the hearing notice issued to him was a notice of dismissal and not a notice for the hearing of the appeal. He argued that the applicant’s presence was immaterial to the business of the day. He referred to: Oyemobi Vs President O.C.C. (1995) 3 NWLR (391) 53.
He submitted that the applicant’s failure to file his brief of argument was contrary to Order 17 Rule 10 of the Court of Appeal Rules and that the proper order in the circumstances was dismissal of the appeal. He noted that there was no application for extension of time to file the appellant’s brief. He urged the court to dismiss the application.
Learned counsel for the applicant in reply on point of law submitted that the court would only be functus officio where the case has been heard on its merits. He relied on the case of: Dana Impex Ltd. & Anor vs. Stephen Aderotoye (2006) ALL FWLR (309) 1339 @ 1349 D – H.
I have carefully considered the facts deposed to in the affidavits before the court, the exhibits annexed thereto and the submissions of both learned counsel. The appeal was dismissed on 25/6/09 for want of diligent prosecution pursuant to Order 17 Rule 10 of the Court of Appeal Rules 2007. See Exhibit B attached to the supporting affidavit. Order 17 Rule 10 (1) provides inter alia:
17. 10 (1) “Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. …”
The Supreme Court interpreted similar provisions to Order 17 Rule 10 in the case of Kraus Thompson Organisation Vs N.I.P.P.S. (2004) 17 NWLR (901) 44 @ 59 E – F per Tobi, JSC thus:
“An appeal which is dismissed under order 6 Rule 10 of the Court of Appeal Rules cannot be relisted. This Court held in Babayagi Vs Bida (supra) that once an appeal is dismissed under Order 6 Rule 10 the Court of Appeal has no jurisdiction to revive the appeal by re-entering it or relisting same. See also Chukwuka Vs Ezulike (1986) 2 NWLR (45) 892.
Where an appeal is dismissed under Order 6 Rule 10 of the Court of Appeal Rules its life terminates and it is therefore removed from the cause list. No court has jurisdiction to revive or resuscitate it.
See also per Kalgo, JSC at 63 – 64 H – B.
Thus in the normal course of events this Court is functus officio and has no jurisdiction to relist the appeal dismissed on 25/6/09. There are however exceptions to the general rule that a court of law has no jurisdiction to set aside its own order or judgment. It was held in the case of Associated Discount House Ltd. Vs Amalgamated Trustees Ltd. (2007) ALL FWLR (392) 1781 @ 1840 C – F that a superior court of record has inherent powers to set aside its judgment in appropriate cases. Such cases were stated as follows:
i. “When the judgment is obtained by fraud or deceit.
ii. When the judgment is a nullity such as when the court itself was not competent; or
iii. When the court was misled into giving judgment under a mistaken belief that the parties consented to it; or
iv. Where judgment was given in absence of jurisdiction;
v. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.”
The following cases were cited with approval: Alao Vs A.C.B. (2000) FWLR (11) 1858; (2000) 9 NWLR (672) 264; Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Igwe Vs Kalu (2002) 14 NWLR (787) 435; Chime Vs Ude (1996) 7 NWLR (461) 379; Ogbu Vs Urum (1981) Vol. 12 NSCC 81; Skenconsult Nig. Ltd. Vs Ukey (1981) Vol. 1 12 N.S.C.C. 1; Obimonure Vs Erinosho (1966) ALL NLR 245.
It is the applicant’s contention that the court lacked jurisdiction to entertain the matter on 25/6/09 having regard to the non-service of the hearing notice on him. From the affidavit deposed to on 20/5/09 by the bailiff of the Ibadan division of this court attached to the affidavit in support of the application and marked Exhibit C, there is no doubt whatsoever that the applicant was not served with a hearing notice against 25/6/09 when the appeal was scheduled for dismissal. However, the situation in this case is that the fact of non service of the hearing notice on the appellant was brought to the court’s attention. This is borne out by the certified true copy of the proceedings for 25/6/09 attached to the counter affidavit of the respondents and marked Exhibit B. Notwithstanding this fact the court considered the circumstances appropriate for a dismissal of the appeal under Order 17 Rule 10 of the Rules of this court having regard to the fact that since the notice of appeal was filed in 1998 the appellant had failed or neglected to file his brief of argument or take any steps to prosecute the appeal. To that extent the order of 25/6/09 was given with full knowledge of all the relevant facts. Although this is a different panel from the panel that made the order, the Court of Appeal is a single court dispensing justice through its various divisions.
To accede to the appellant’s request would amount to sitting on appeal over an order of this court, This court has no power to do so. It has become functus officio. The rationale behind the principle of law that a Judge becomes functus officio (meaning “task performed) once he has given a decision in a matter, was explained in the case of Onyemobi vs. President O.C.C. (1995) 3 NWLR 53 at 58H per Tobi- JCA (as he then was) thus:
(i) ” A court like the parties and their counsel cannot blow hot and cold with the same breath.
(ii) A court cannot sit on appeal over its own judgment,
(iii) It is the jurisdiction of an appellate court to pronounce on the decision or order of the court of first instanceIn the instant case, with due respect to learned counsel, it is the jurisdiction of the Supreme Court to pronounce upon the order made on 25/6/09.
We are therefore of the view and do hold that this application lacks merit. It is hereby refused and accordingly dismissed. Costs of N20,000 are awarded in favour of the respondents.
CHINWE E. IYIZOBA, J.C.A.: I read before now the ruling just delivered by my learned brother K. M. O. KEKERE-EKUN JCA. I agree entirely with the ruling. This court is functus officio. The applicant if he desires can pursue his case in the Supreme Court. I abide by the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading, before now, the lead ruling of my learned brother KEKERE-EKUN, JCA. I completely agree with His Lordship reasoning and conclusion that this application does not have any merit.
When, on the 25th day of June 2009, our learned brothers sitting at Ibadan dismissed the applicant’s appeal their Lordships were well informed of the fact that the applicant/appellant was not served with a hearing notice for the dismissal of the appeal. The applicant’s appeal, by the 25th day of June 2009, was already ‘dead’ as no appellant’s brief had been filed after about 11 (eleven) years of filing the appellant’s notice of appeal. By virtue of Order 17 rule 10 of the Court of Appeal Rules, 2007, an order of dismissal of the appeal was made. Having dismissed the appeal this Court became functus officio and the remedy, available to the applicant, is to appeal to the Supreme Court; which has exclusive jurisdiction under section 233 (1) of the Constitution of the Federal Republic of Nigeria, 1999 to entertain appeals from this Court.
For the foregoing reasons and the more comprehensive reasons in the leading ruling, I also dismiss the applicant’s motion. I abide by the order as to costs in the lead ruling.
Appearances
Olaniyi GeorgeFor Appellant
AND
N. O. O. FolorunshoFor Respondent
