MR. RAYMOND EWERE NWABUDIKE & ANOR. V. DR. D. N. OMOKARO
(2010)LCN/3752(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 2010
CA/B/21/2008
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. MR. RAYMOND EWERE NWABUDIKE
(Substituted for Princess G. Akenzua (Deceased)
2. ROBERT IRABOR Appellant(s)
AND
DR. D. N. OMOKARO Respondent(s)
RATIO
WHETHER OR NOT WHEN A COMPETENT COURT OF JURISDICTION COMPLETES HEARING A MATTER AND DELIVERS ITS JUDGMENT THEREON, THE JUDGMENT SUBSISTS AND IS BINDING ON THE COURT AND ALL THE PARTIES THERETO UNTIL IT IS SET ASIDE ON APPEAL OR BY OTHER JUDICIAL PROCEEDINGS
It is a general principle of law that, when a competent court of jurisdiction completes hearing a matter and delivers its judgment thereon, the judgment subsists and is binding on the court and all the parties thereto until it is set aside on appeal or by other judicial proceedings. Therefore, the court ceases to exercise further power in dealing with the matter except with respect to ancillary matters. Therefore, where a party is dissatisfied with the decision of a court, his main remedy is to file an appeal to a higher court seeking to upturn, discharge and or vary that decision. Albeit, while awaiting the hearing and determination of an appeal filed, a party is at liberty to seek out the option of minimizing real, imagined or perceived damage or injury to himself or others by causing the decision of the court to be stayed where it is executory, or in appropriate situations, seeking an interim, interlocutory, mareva or any other order of injunction to restrain the other party from insisting on his adjudged rights. In legal parlance, the Court is said to be “functus-officio” in the case. To put it in different words, steps to reverse the decision would usually fall within the jurisdiction of the relevant appellate court. In that case, the decision is said to be final having put an end to the action by a declaration that the plaintiff has or has not entitled himself to the remedy he sues for so that nothing remains to be done but to execute the decision. See the cases of:
(1) Oguneze v. Ojiako (1962) 1 SCNLR p. 112;
(2) V.R.N. Ltd v. Penny Mart Ltd. (1992) 5 NWLR (Pt. 240) p. 242;
(3) Edem v. Akamkpa L.G. (2000) 4 NWLR (pt. 651) p. 70;
(4) Opobiyi v. Muniru (2005) 15 NWLR (Pt. 948) p. 320; and
(5) Sanni v. Abdulsalam (2009) Vol. 22 W.R.N. p. 77.
However, there are a few exceptions to the above stated general principle of law. There are instances when a court can interfere with its own judgment by way of setting it aside or correcting it under the slip rule. The various High Court (Civil Procedure) Rules allow the court under certain conditions to set aside its judgment which had been obtained in the absence of one of the parties or in default of pleadings. There is also an inherent power of the court to set aside its judgment which had been obtained as a result of fraud on the part of one of the parties or for reason of want of jurisdiction the judgment is a nullity or where it is obvious that the court was misled into giving the judgment under the mistaken belief that the parties consented to it. See the cases of:
(1) Agunbiade v. Okunoga & Co. (1961) All NLR p. 119;
(2) Oguneze v. Ojiako supra;
(3) Siliyun & Ors. v. Mashi & Ors. (975) 1 NMLR p. 55 at p. 58; and
(4) Edem v. Akamkpa L.G. supra. PER OMOLEYE, J.C.A.
CONDITIONS FOR A COURT TO HAVE JURISDICTION AND COMPETENCE TO ADJUDICATE ON A SUIT
It is a well settled principle of law that a court is said to have jurisdiction and competence to adjudicate upon a suit when:
(a) it is properly constituted as regards members(s) and qualification of member(s) of the bench and no member is disqualified for one reason or the other.
(b) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before a court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See amongst many, the cases of:
(1) Madukolu v. Nkemdilim (1962) 3 SCNLR p. 34;
(2) Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) p.382;
(3) Apadi & Ors. v. Banuso & Ors. (2008) 13 NWLR (Pt. 1103) p. 204;
(4) Shelim v. Gobang (2009) All FWLR (pt. 496) p. 1866; and
(5) Drexel E. & N. Res. v. Trans. Int’l Bank Ltd. (2009) 15 WRN p.1.
One of such conditions precedent to the exercise of jurisdiction of a court is that, there must be – proper parties to an action. PER OMOLEYE, J.C.A.
OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment): The brief background facts of this matter are that, the Respondent herein was the plaintiff at the trial Court. He instituted an action against the 2nd Appellant and the 1st Appellant’s deceased mother Princess G. Akenzua as defendants for, declaration of title to a portion of land, special and general damages for trespass. Pleadings were exchanged between the parties and the action went to trial at the end of which judgment was delivered in favour of the Respondent on 14th June, 2006. See pages 80 to 96 of the record of appeal for the said judgment. Subsequently, on 26th October, 2006, the Appellants’ counsel filed an application before the trial Court and prayed for the following orders viz:
(1) An order striking out the name of the 1st defendant, Princess G. Akenzua from the suit, she having died on 12th June, 2006 two days before the judgment of the Court was delivered against her, the judgment being a nullity.
(2) An order to substitute Mr. R.E. Nwabudike for the 1st defendant, that is, Princess G. Akenzua who died on 12th June, 2006.
(3) An order setting aside the judgment of the Court against the 1st defendant, Princess G. Akenzua, in suit no. B/778/97 that is, Dr. D.N. Omokaro v. Princess G. Akenzua & Anor. which judgment was delivered on 14th June, 2006 without jurisdiction, the judgment being a nullity, the 1st defendant, Princess G. Akenzua having died on 12th June, 2006.
The trial Court granted prayer one of the said application and substituted the 1st Appellant for the 1st defendant, late Princess G. Akenzua but refused the other two prayers. The ruling in respect of the said application is contained in pages 97 to 103 of the record of appeal. The Appellant is apparently dissatisfied with both the said judgment and ruling and filed an appeal against same to this Court. The Appellants filed two separate notices and grounds of appeal. The first is dated and filed on 7th July, 2006; while the second is dated and filed on 18th December, 2006 as contained in pages 104 to 105 and 106 to 107 of the record of appeal respectively.
The learned counsel for the Appellants in the brief of argument filed for the Appellants formulated a sole issue for the determination of this appeal. This sole issue reads thus:
Whether the learned trial Judge was right when he failed to set aside part of his judgment delivered on the 14th day of June, 2006 as it affects the 1st defendant who died before the said judgment was delivered?
In the Respondent’s brief of argument, a single issue was equally formulated for determination, which states as follows:
Whether having regard to the facts and circumstances of this case, the death of the 1st defendant after the close of the case and just before judgment, occasioned a miscarriage of justice to the Appellants herein as to render the judgment a nullity?
On 1st February, 2010 when this appeal was heard by this Court, the learned counsel for the Appellants, Mr. G.E. Ezomo identified, adopted and relied on the Appellants’ brief of argument which is dated 23rd January, 2009 and was deemed properly filed and served on 13 May, 2009 and urged upon this Court to allow this appeal. The learned counsel for the Respondent, Mr. J.O. Odion on the other part identified, adopted and relied on the Respondent’s brief of argument dated 1st June, 2009 and filed 4th June, 2009. And he urged this Court to dismiss this appeal.
Before proceeding further in this judgment, I consider it apposite to put the records straight concerning the two notices of appeal filed by the Appellants as stated earlier on. This is imperative in order to ascertain the status and relevance of each of the said two notices of appeal. For, an appellate court can only decide an appeal brought before it on issues raised from the grounds of appeal as contained in the notice and grounds of appeal. Hence, by the rules of court and practice, issue(s) is/are circumscribed or limited by the grounds of appeal. It is the law that, issue(s) formulated for determination which is/are not encompassed in the grounds of appeal is are incompetent, ill-fated and bound to be struck out or discountenanced. Therefore, an appellant is bound by his grounds of appeal and any matter argued which is not founded on a ground of appeal goes to no issue. See the cases of:
(1) Okeke & Ors. v. Oruh (1999) 4 S.C.N.J. p. 192;
(2) Dantata v. Mohammed (2000) 5 S.C. p. 1; and
(3) Adah v. Adah (2001)2 S.C. p.1.
In the instant matter, the first notice of appeal is obviously in respect of the judgment of the trial Court which was delivered on 14th – June, 2006; while the second notice of appeal relates to the ruling delivered on 12th December, 2006 post the said earlier judgment. Upon a careful reading of the briefs of argument of the respective parties, it is patent that, this appeal is actually in respect of the ruling of the trial Court per the second notice of appeal, notwithstanding the reference made to the first notice of appeal in the said briefs. The law is trite that appeals are heard on briefs of argument filed by parties. Any notice and grounds of appeal not supported by a brief of argument cannot be effectively heard and determined. Consequently, since issues have not been distilled and argued upon the notice and grounds of appeal dated and filed on 7th July, 2006 for the purpose of prosecuting same, the said notice and grounds of appeal is deemed to have been abandoned. And it is hereby struck out for that reason.
Therefore, the extant appeal is that pursuant to the notice and grounds of appeal dated and filed on 18th December, 2006, which is against the ruling of the trial Court delivered on 12th December, 2006. The prayers sought by the Appellants in their application upon which the said ruling is predicated have already been set out above. It is my strong view that, the focal point of this matter is: whether or not the trial Court had jurisdiction to entertain that application, which was a post judgment preceding. This point was brought to the fore by the Respondent’s counsel at the hearing of the said application. The learned counsel for the Respondent, while opposing the application, had the following to say:
… This court cannot set aside its judgment of 14/6/06, as the court is functus officio and this court can not revisit the case. The applicant ought to appeal to the Court of Appeal as an interested party… See page 96 C of the record of appeal.
It is a general principle of law that, when a competent court of jurisdiction completes hearing a matter and delivers its judgment thereon, the judgment subsists and is binding on the court and all the parties thereto until it is set aside on appeal or by other judicial proceedings. Therefore, the court ceases to exercise further power in dealing with the matter except with respect to ancillary matters. Therefore, where a party is dissatisfied with the decision of a court, his main remedy is to file an appeal to a higher court seeking to upturn, discharge and or vary that decision. Albeit, while awaiting the hearing and determination of an appeal filed, a party is at liberty to seek out the option of minimizing real, imagined or perceived damage or injury to himself or others by causing the decision of the court to be stayed where it is executory, or in appropriate situations, seeking an interim, interlocutory, mareva or any other order of injunction to restrain the other party from insisting on his adjudged rights. In legal parlance, the Court is said to be “functus-officio” in the case. To put it in different words, steps to reverse the decision would usually fall within the jurisdiction of the relevant appellate court. In that case, the decision is said to be final having put an end to the action by a declaration that the plaintiff has or has not entitled himself to the remedy he sues for so that nothing remains to be done but to execute the decision. See the cases of:
(1) Oguneze v. Ojiako (1962) 1 SCNLR p. 112;
(2) V.R.N. Ltd v. Penny Mart Ltd. (1992) 5 NWLR (Pt. 240) p. 242;
(3) Edem v. Akamkpa L.G. (2000) 4 NWLR (pt. 651) p. 70;
(4) Opobiyi v. Muniru (2005) 15 NWLR (Pt. 948) p. 320; and
(5) Sanni v. Abdulsalam (2009) Vol. 22 W.R.N. p. 77.
However, there are a few exceptions to the above stated general principle of law. There are instances when a court can interfere with its own judgment by way of setting it aside or correcting it under the slip rule. The various High Court (Civil Procedure) Rules allow the court under certain conditions to set aside its judgment which had been obtained in the absence of one of the parties or in default of pleadings. There is also an inherent power of the court to set aside its judgment which had been obtained as a result of fraud on the part of one of the parties or for reason of want of jurisdiction the judgment is a nullity or where it is obvious that the court was misled into giving the judgment under the mistaken belief that the parties consented to it. See the cases of:
(1) Agunbiade v. Okunoga & Co. (1961) All NLR p. 119;
(2) Oguneze v. Ojiako supra;
(3) Siliyun & Ors. v. Mashi & Ors. (975) 1 NMLR p. 55 at p. 58; and
(4) Edem v. Akamkpa L.G. supra.
In the instant matter, counsel for the Appellants does not appear to disagree with the above stated position of the law. His grouse is simply that, the judgment of the trial Court having in his view been delivered without jurisdiction ought to have been set aside as urged upon the lower Court in the Appellants’ application, the subject-matter of this appeal. The said grouse is based on the fact that the 1st Appellant’s mother, who was one of the defendants in the suit in dispute, had died two days prior to the delivery of the said judgment of the trial Court in the said suit.
There is no doubt as stated above that one of the exceptions to the general legal principle that a Court can not tamper with its final judgment in an action is, where the court lacks jurisdiction to have adjudicated upon the suit in the first place. Therefore, the pertinent question in the given circumstances of this matter is, can it be said that the trial Court lacked jurisdiction to adjudicate upon the suit under fire by reason of the death of the 1st Appellant’s mother, Princess G. Akenzua, two days before the delivery of the trial Court’s judgment therein?
It is a well settled principle of law that a court is said to have jurisdiction and competence to adjudicate upon a suit when:
(a) it is properly constituted as regards members(s) and qualification of member(s) of the bench and no member is disqualified for one reason or the other.
(b) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before a court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See amongst many, the cases of:
(1) Madukolu v. Nkemdilim (1962) 3 SCNLR p. 34;
(2) Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) p.382;
(3) Apadi & Ors. v. Banuso & Ors. (2008) 13 NWLR (Pt. 1103) p. 204;
(4) Shelim v. Gobang (2009) All FWLR (pt. 496) p. 1866; and
(5) Drexel E. & N. Res. v. Trans. Int’l Bank Ltd. (2009) 15 WRN p.1.
One of such conditions precedent to the exercise of jurisdiction of a court is that, there must be – proper parties to an action.
It is beyond doubt from the facts contained in the record of appeal in this matter that, from the time suit No. B/779/97 was instituted up until the judgment was delivered on 14th June, 2006, the trial Court possessed the requisite jurisdiction to adjudicate upon the said suit. For there was compliance with all the above enumerated conditions precedent to the Court’s exercise of jurisdiction thereon. The fact that one of the defendants, in the suit Princess G. Akenzua died two days before judgment in the case was delivered is of no moment. This is because, the fact of her death was not brought to the notice of the Court. What is more, even the said defendants’ counsel was not aware of the death of Princess G. Akenzua. The proceedings of the trial Court on the day the judgment was delivered on 14th June, 2006 bear witness to this, see pages 80 to 96 of the record of appeal. The said judgment was based on the evidence presented to the Court by the parties and the addresses of their respective learned counsel. It is my very firm view and I hold that the judgment is a valid, subsisting and sacrosanct decision in the sight of the law, and the trial Court lacks the power to set it aside in part or wholly in the given circumstances of the matter.
Therefore, whatever grouse the Appellants may have against that judgment can only be properly in law ventilated on appeal, wherein the 1st Appellant may seek to be joined as an interested party. In essence, the application of the Appellants before the trial Court, the subject-matter of this appeal was in fact incompetent. The learned trial Judge lacked the competence to entertain same. For, he is “functus officio”, he can not revisit the judgment as rightly canvassed by the Respondent’s learned counsel even at the hearing of the said application as alluded to earlier on above. The learned trial Judge could not grant and ought not to have granted any of the prayers sought in the said application having himself properly held in his ruling that his judgment in dispute was given within jurisdiction.
The law is solidly settled that, once a court lacks the jurisdiction to entertain a matter commenced before it, any order made by it in the course of proceedings in the matter is null, void and of no effect. I have earlier held that the trial Court lacked the competence to entertain the application, the subject-matter of this appeal, therefore, the only order granted thereon, substituting the deceased 1st defendant Princess G. Akenzua with the 1st Appellant herein, that is, Mr. Raymond Ewere Nwabudike is null, void and of no effect. The said application is hereby struck out accordingly for incompetence.
For the above enumerated reasons, I hold that this appeal is completely bereft of merit, it fails and consequently dismissed. The Respondent is entitled to the costs of this appeal which I assess at Ten Thousand Naira to be paid to him by the Appellants jointly.
AMINA A AUGIE, J.C.A: I have read before now the lead Judgment just delivered by my learned brother, Omoleye, JCA, and I agree with his reasoning and conclusion.
Functus Officio, is Latin for “having performed his or her office”, and where used in respect of an official body, it means without authority or legal competence because the duties and functions of the original Commission have been fully accomplished. See Black’s Law Dictionary, 8th Ed. Thus, after a Judge has delivered a Judgment in a matter, he becomes functus officio to the extent that the only jurisdiction left in the Court is the correction of accidental slips or errors under the “slip rule”. In effect, the Court has no jurisdiction, constitutional, statutory or inherent to review its own orders once it has delivered a Judgment – see Aba South L.G. V. Nwajiobi (2008) 6 NWLR (Pt. 1084) 503.
In this case, having delivered Judgment on the 14th of June 2006, the lower Court became functus officio in so far as the action before it is concerned. In other words, having performed its functions’ by delivering the said Judgment, it had no further authority or legal competence to entertain any application that would have the effect of changing its decision in any way. The lower Court fell into error when it heard the application that led to this appeal, and its Ruling thereon cannot stand.
The end result is that, I also dismiss this appeal as lacking in merit. I abide by the orders in the lead Judgment, including the order on costs.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.: I have read in draft the lead judgment written by my learned brother, OYEBISI F. OMOLEYE, JCA. I agree with the reasoning and conclusions arrived there at and therefore adopt same as mine.
Appearances
Mr. G. E. Ezomo with him E. O. Edigue, D. O. Aigbekaen,
Mr. C. P. Agbaeze and S. MartinsFor Appellant
AND
Mr. J. O. Odion with him E. C. EduwoFor Respondent
