MR. AITE OKOJIE, ESQ (PRACTISING AS AITE OKOJIE & CO. V. NIGERIA POLICE COOPERATIVE SOCIETY LIMITED & ORS.
(2011)LCN/4512(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of April, 2011
CA/L/665M/2006
RATIO
FUNCTUS OFFICIO: EFFECT OF A COURT BECOMING FUNCTUS OFFICIO, AND WHETHER THE ONLY OPTION AVAILABLE FOR A PARTY CHALLENGING A CONSEQUENTIAL ORDER IS TO APPEAL TO THE SUPREME COURT
The applicant only quarrels with a consequential relief. In other words, he agrees that the court’s proceedings and determination of the appeal were competent. If that is so then this court is functus officio the appeal. It cannot re-open the appeal where it has become functus officio to examine and change a consequential order. A consequential order does not constitute a cause or matter. The only thing that can avail the applicant is an appeal to the Supreme Court. PER RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OLU ARIWOOLA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
MR. AITE OKOJIE, ESQ (PRACTISING AS AITE OKOJIE & CO.) Appellant(s)
AND
1. NIGERIA POLICE COOPERATIVE SOCIETY LIMITED
2. THE INSPECTOR-GENERAL OF POLICE
3. ECOWAN INTERNATIONAL LIMITED
4. COMMISSIONER OF POLICE IN CHARGE OF NIGERIA POLICE COOPERATIVE SOCIETY Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling): The applicant was the appellant in appeal no. CA/L/105/2002 in which the respondents to this application were also respondents. At the hearing of the appeal, the appellant elected to withdraw his appeal on 15th March 2006. Upon the withdrawal of the said appeal this court made an order striking out the suit at the trial court for want of jurisdiction.
On 1st April 2009 the applicant filed this application praying this court as follows:
“1(A) AN ORDER of the honourable court setting aside the consequential order of 15/3/2006 which reads: “THE APPELLANT’S CLAIM IN THE COURT BELOW IS STRUCK-OUT” which order is nullity for lack of jurisdiction by virtue of section 240 of the 1999 Constitution of Nigeria and section 16 of the Court of Appeal Act, 1976 & Section 22 (2) of the Federal High Court Act, Cap. 134 laws of Federation of Nigeria, 1990 and order 41 of the court of Appeal Rules, 2007.
ON IN THE ALTERNATIVE
1 (B) AN ORDER of the Honourable Court re-listing the action struck out from the cause list of the Federal High court on the 15th day of March, 2006 for purposes of transfer of same pursuant to section 22 (2) of the Federal High court Act, CAP. 134, Laws of Federation of Nigeria, 1990.
AND THEREAFTER TO 1 (A) OR 1(B)
2. AN ORDER pursuant to section 22 (2) of the Federal High court Act, transferring the case from the Federal High court, Lagos Judicial Division to the High court of Lagos state for hearing and trial De novo.
3. AND for such further order or other orders as the Honourable court shall deem to make to meet with the ends of justice in this case.
The application was supported by a ten paragraph affidavit which bears reproduction:
“AFFIDAVIT IN SUPPORT OF MOTION ON THE NOTICE
I, AITE OKOJIE, MALE, NIGERIAN CITIZEN, and LEGAL PRACTITIONER OF SUITE B328 (3RD FLOR), IKEJA PLAZA, 81, BANK-ANTHONY WAY, IKEJA-LAGOS DOES HEREBY MAKE OATH AND SAY AS FOLLOWS:
1. That I am a Legal Practitioner and the appellant/applicant in this case by virtue of which I am familiar with the facts of this case.
2. That I know as fact that this action was commenced in the lower court on the 5th day of April 1995 for payment of professional Legal services fees and the trial court delivered its judgment on 31/3/2000 and an appeal was thereafter lodged.
3. That I know as a fact that on the 15th day of March, 2006, when the appeal came up for hearing this court ruled that the judgment of the trial court appealed from and the proceedings were a nullity as the trial court had no jurisdiction to entertain claims grounded in contract and the judgment of the trial court was set aside and there is no appeal to the supreme court from the said judgment of the 15th day of March 2006.
4. That I know as a fact that this court also made consequential order striking out the action from the cause list of the lower court pursuant to section 240 of the 1999 constitution of Nigeria and section 16 of the court of Appeal Act, 1976 & section 22 (2) of the Federal High Court Act. Find attached herewith and marked as exhibit “A” is a copy of the record of proceedings of the 15th day of March, 2006.
5. That I know as a fact that by virtue of the provisions of section 22 (2) of the Federal High Court Act, Laws of Federation of Nigeria, 1990 which provides that the proper consequential order to make is one transferring the case to the High Court of Lagos state which is vested with jurisdiction for trial de novo and the Court of Appeal which assumed the jurisdiction of the Federal High Court by virtue of section 16 of the Court of Appeal, 1976 and section 22(2) of the Federal High Court Act Cap. 134, Laws of the Federation of Nigeria, 1990, have no jurisdiction to strike out the action from the cause lists of the trial court which jurisdiction it assumed.
6. That I know as a fact that the action having been struck out of the cause list of the lower court by this court, the trial judge has neither the jurisdiction nor the competence to order a transfer of the case to the High Court of Lagos State for purposes of adjudication.
7. That I know as a fact that as the order striking out the case from the cause list of the lower court stands now the applicant has no remedy without involving a substantial delay and cost which appeal to the Supreme Court entails.
8. That I know as a fact that all enquiries I made in the registry of this court revealed to me that the order of the 15th day of March, 2006, nullifying the judgment of the lower court and striking out the action off the cause list of the trial Federal High Court is not ready and the certified copy of the record of proceedings is attached herewith.
9. That I know as a fact that I have prepared a written address in support of this application which is filed along on the same day as this application.
10. That I depose to the facts herein in good faith and in accordance with the Oaths Acts of Laws of Federation of Nigeria 1990.”
In arguing the application the appellant placed several authorities before the court to show that where this acts without jurisdiction, its judgment would be nullity and in such a situation, the court is entitled to revisit its judgment. He argued that in the instant case where this court has proceeded to strike out the case at the trial court for want of jurisdiction, this court was competent to and ought to avoid its order of striking out and apply the provisions of S.22 (2) of the Federal High Court Act Cap 134 Laws of the Federation of Nigeria 1990. He relied on Faleye vs. Otapo (1995) 6 NWLR (pt. 381) 1 at 33, Okafor vs. A.G Anambra State (1991) 6 NWLR (Pt. 200) 659, Chief Mokelu vs. Federal Commissioner for works and Housing (1976) 7 ALL NLR (Pt. 1) 276. S. 22 (2) of the Federal High Court Act reads thus:
“22(2) No cause or matter shall be struck out by the court merely on the ground that such cause or matter was taken in the court instead of the High court of a state or of the Federal capital Territory, Abuja in which it ought to have been brought, and the judge of the court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with the Rules of court to be made under section 44 of this Act.”
It is correct that a court can revisit and avoid its judgment delivered without jurisdiction or obtained by fraud. In the instant case this court is not being asked to revisit its hearing of the applicant’s appeal. The applicant only quarrels with a consequential relief. In other words, he agrees that the court’s proceedings and determination of the appeal were competent. If that is so then this court is functus officio the appeal. It cannot re-open the appeal where it has become functus officio to examine and change a consequential order. A consequential order does not constitute a cause or matter. The only thing that can avail the applicant is an appeal to the Supreme Court. There is no merit in this application and it is hereby dismissed.
OLU ARIWOOLA, J.C.A.: I had a preview of the ruling just delivered by my learned brother, Agbo, JCA. I agree entirely with the reasoning therein and conclusion arrived thereat that the application lacks merit and should be dismissed. Accordingly, same is dismissed by me.
RITA NOSAKHARE PEMU, J.C.A.: I have the privilege to read in draft the Ruling of my brother Judge R.C. Agbo, JCA and I agree with the reasoning and the conclusions therein.
The very nature of the Applicant’s application shows that he is fishing, as he is at a loss as to what relief he really desires.
The application in its bare words was for an order of the Honourable Court setting aside the consequential order of 15/3/2006 which reads “THE APPELLANT’S CLAIM IN THE COURT BELOW IS STRUCK OUT” (Underlined by me)
Therefore his grouse is aimed at the consequential order and nothing more.
He seeks a relisting, and a transfer, as well as an order to set aside in one fell swoop!
I am of the view, as postulated in the lead Ruling, that the only option opens to the Appellant is to appeal the decision of the court below.
His reliance on section 22 (2) of the Federal High court law is of no moment as the provisions therein do not avail him.
There is no merit in this appreciation and I abide by the consequential order made that the application be dismissed and same is hereby dismissed.
Appearances
MR. OKOJIEFor Appellant
AND
Respondent absentFor Respondent
