MUHAMMED GANAH v. THE STATE
(2019)LCN/13182(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/IL/C.M.33/2019(R)
RATIO
JUDGMENT: INSTANCES WHEN THE COURTS CAN SET ASIDE ITS OWN JUDGMENT
In the recent case of APC vs. Nduul (2018) ALL FWLR (pt. 940) 59 @ 75, the Supreme Court, per Galinje JSC stated:
As a general rule, every Court of record has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision where the judgment or decision is null and void ab initio or where there was a fundamental defect in the proceedings which vitiated and rendered same incompetent and invalid.PER HAMMA AKAWU BARKA, J.C.A.
JUDGMENT:INSTANCES WHEN A COURT CAN SET ASIDE ITS OWN JUDGMENT
Also in the case of Wende vs. Longe (2018) ALL FWLR (944) 812 @ 823, per Kekere-Ekun JCA (as he then was), whereby this Court stated that:
Thus, in the normal course of events, this Court is functus officio and has no jurisdiction to relist the appeal dismissed on the 25 June 2009. 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) 10 MJSC 49, 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 was 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 the judgment was given in the absence of jurisdiction, or
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. ACB Ltd (2000) 6 SCNJ 63, Madukolu vs. Nkemdilim (1962) 1 ALL NLR 587, Igwe vs. Kalu (2002) FWLR (pt.122) 1, Chime vs. Ude (1996) 7 NWLR (pt. 461) 379,Ogbu vs. Urum (1981) 12 NSCC 81, Skenconsult Nig. Ltd vs. Ukey (1981) vol.1 12NSCC 1, Obimonure vs. Erinosho (1966) All NLR 250.PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
MUHAMMED GANAH Appellant(s)
AND
THE STATE Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Lead Ruling): The applicants motion brought on notice filed on the 26th of February, 2019 and brought pursuant to Order 20 Rule 4 of the Court of Appeal Rules 2016 and the inherent jurisdiction of this Court is for:
1. An order of this Court setting aside its judgment of the 16th day of November, 2018 and setting the appeal down for hearing/judgment on the merit.
2. And for such further order(s) that this honorable Court may deem fit to make in the circumstance of this case.
The grounds in support of the application are namely;
a. The Honourable Court earlier granted the appellant/applicant an order of extension of time within which to file his notice of appeal which was complied with.
b. In delivering its judgment, the honourable Court did not avert its mind to the earlier order given.
c. The honourable Court in error struck out the appeal as having been filed out of time.
In support of the application is an affidavit of 4 paragraphs deposed to by Taiwo Olubowale a litigation clerk in the law office of Ronke Adeyemi & co, the counsel representing the
1
appellant/applicant. Four exhibits titled exhibits A ? D were hinged on the motion papers.
Jimoh Adebimbe Mumini, the learned Director Public prosecution filed a counter affidavit of six paragraphs, deposed to by Mallam Babatunde Lawal, a litigation clerk in the office of the Attorney General, Kwara State.
The facts which gave rise to the instant application are not in conflict, and is ably captured by paragraph 3 of the affidavit in support of the application, as well as paragraph 4 of the counter affidavit. In short, the applicant/appellant was arraigned before the High Court of Kwara State for the offences of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 221 of the Penal Code, and was convicted and sentenced to death by hanging on the 15th of February, 2016. The appellant/applicant for reasons of impecuosity, could not appeal his conviction within time, by reason of which the learned counsel Ronke Adeyemi, pro bono came to his assistance. The learned counsel on behalf of the applicant could not appeal the judgment of the lower Court within the time prescribed by law, and thereby filed a motion on
2
notice on the 17th of November, 2017 for the extension of time within which to appeal the said judgment, and which application was granted on the 20th of February, 2018, in suit No. CA/IL/C37/2018.
By inadvertence of counsel, the order extending time within which to appeal the judgment granted by the Court was not exhibited in the record of appeal, wherefore the respondent upon being served the appellants brief of argument, filed a notice of preliminary objection alongside the respondents brief. Its observed that the applicants did not file any response to the preliminary objection, and in adopting their respective briefs on the 22nd October, 2018, Mr Mumini the learned DPP for the State, withdrew his preliminary objection contained at pages 2 of the brief, in urging the Court to dismiss the appeal.
In the judgment of the Court delivered on the 16th day of November, 2018, this Court inadvertently relied on the preliminary objection raised in the respondents brief and thereby reached the conclusion that:
The second notice of appeal in question is equally hereby struck out for having been filed out of the time prescribed by the law without the leave of Court.”
3
A single issue was crafted by the applicant in their address in support of the application filed on the 19th of March, 2019. It reads:
Whether the appellant/applicant is entitled to an order of this Honourable Court setting aside its judgment of the 16th November, 2018 and setting the appeal down for hearing/judgment on merit considering the circumstances of this case.
It has the contention of the learned counsel that the applicant is entitled to the discretion of the Court in granting the application as the rules of Court allows it. Relying on the provisions of Order 20 Rule 4 of the Court of Appeal Rules 2016, to the effect that:
The 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.
Learned counsel submits that the present application falls within error occasioned by accidental slip and or omission for which the Court has the power to review. Learned counsel relying on the decisions of
4
Okafor vs. AG Anambra State (1991) 6NWLR, Gitto Constructioni Generali (Nig) Ltd vs. Innovate & Co Enterprises & Anor (2015) LPELR-25725 CA, Igwe vs. Kalu (2002) LPELR 1455(SC), urged the Court to exercise its discretion in favor of the applicant and to grant the application in the interest of justice taking into consideration the decision of the apex Court in the case of Bankole vs. Dada (2004) 12 FWLR (pt. 241) 628 @ 673 ? 674, and Ogolo vs. Ogolo (2000) 14 NWLR (pt. 686) 157 @ 163.
In opposing the application, the state filed a counter affidavit of six paragraphs as earlier stated. In the written address filed in support of the counter affidavit filed on the 1st day of April, 2019, the learned DPP adopted the sole issue distilled by the applicant, and argued that once a Court delivers its judgment it becomes functus officio, which means that he cannot revisit the judgment with a view to reviewing it. The cases of Uba vs. Ukachukwu (2006) ALL FWLR (pt. 337) 515 @ 521, Iyela vs. Nig. Army (2005) ALL FWLR (pt. 280) 1561, and Timothy Adeilo Adefulu vs. Chief O.O.Okulaja & 6 ors (1998) 5 NWLR (pt. 550) 435 were cited and relied upon to support the
5
legal position.
He concedes to the fact that a Court can set aside its judgment under certain circumstances, and that the rule of this Court also makes provision for circumstances under which a Court can vary its judgment, but submits that none of the conditions or circumstances qualifies for the Court revisiting the judgment under consideration.
Further conceding to the fact that the applicant was granted extension of time within which to file his notice of appeal, that notice was not exhibited at the hearing of the appeal. He submits also that the refusal to exhibit the said order in the record of proceedings, leading to the hearing of the appeal was a flagrant abuse of Court process. The case of Lekwot vs. Judicial Tribunal (1997) 8 NWLR (pt. 515) 22 @ 35 relied upon. Further emphasizing that applicants failure to exhibit the notice of appeal filed with the leave of Court, amounted to a clear abuse of Court process and the applicant unworthy to benefit therefrom, counsel cited the case of FRN vs. Tawakalitu (2013) ALL FWLR (pt. 695) 325 @ 331 to that regard.
Conclusively learned counsel urged the Court not to set aside its judgment delivered
6
on the 16th of November, 2018 as same was based on facts and materials placed before the Court by the parties.
I do agree with the learned counsel on both sides that the issue that calls for determination is whether the appellant /applicant is entitled to an order of this Court setting aside its decision of the 16th of November, 2018 and setting the appeal down for hearing/judgment on merit considering the circumstances of the case.
The circumstances that led to the present application has been well spelt out. At the risk of being repetitious, the application to set aside the judgment delivered is consequent upon the judgment of this Court premised on the fact that no leave of Court was sought extending time within to file a notice of appeal as required under Section 24 (2) (b) of the Court of Appeal Act 2004. Whereas it is not in contention that the requisite leave of Court was indeed applied for and granted, which order to that effect was not reflected in the records of appeal nor the attention of the Court drawn to such an order, and therefore falls within the exceptions to the principle of functus officio, and by the provisions of
7
Order 20 Rule 4 of the Rules of this Court possessed of the power to vary same, the state on the other hand holds the view that the Court is functus officio having determined the case on the materials and case presented before it. The state may not be far from stating the truth, because from the processes set before the Court leading to the judgment sought to be set aside, no inkling of the fact that leave was indeed sought for and obtained was presented to the Court, and the Court right in arriving at the decision being complained about. Equally it must be stated that had the Court been intimated that indeed its leave was obtained before the filing of the notice of appeal, its decision would have been based on the merit, as the Court would have been competent in entertaining a competent notice of appeal.
The applicant relying on the decisions of this Court in Gitto Constructioni Generali (Nig) Ltd vs. Innovate & Co Enterprises & Anor (supra) and Igwe vs Kalu (supra), a decision of the Supreme Court, urged upon the Court to utilize its inherent powers to set aside its judgment in the circumstance in which it has found itself. I am inclined to agree with the
8
learned counsel for the applicant in that regard. This is more so when the Courts judgment sought to be set aside was not a judgment obtained on the merit. See the cases of ACB Plc vs. Losada (Nig) & Anor (1995) LPELR 205 (SC), Evans vs. Bartlam (1937) AC 473 @ 480, and Grinshaw vs. Dunbar (1953) 1 QB 408 @ 416.
In the recent case of APC vs. Nduul (2018) ALL FWLR (pt. 940) 59 @ 75, the Supreme Court, per Galinje JSC stated:
As a general rule, every Court of record has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision where the judgment or decision is null and void ab initio or where there was a fundamental defect in the proceedings which vitiated and rendered same incompetent and invalid.
Also in the case of Wende vs. Longe (2018) ALL FWLR (944) 812 @ 823, per Kekere-Ekun JCA (as he then was), whereby this Court stated that:
Thus, in the normal course of events, this Court is functus officio and has no jurisdiction to relist the appeal dismissed on the 25 June 2009. There are however exceptions to the general rule that a Court of law
9
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) 10 MJSC 49, 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 was 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 the judgment was given in the absence of jurisdiction, or
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. ACB Ltd (2000) 6 SCNJ 63, Madukolu vs. Nkemdilim (1962) 1 ALL NLR 587, Igwe vs. Kalu (2002) FWLR (pt.122) 1, Chime vs. Ude (1996) 7 NWLR (pt. 461) 379,Ogbu vs. Urum (1981) 12 NSCC 81, Skenconsult Nig. Ltd vs. Ukey (1981) vol.1 12NSCC 1, Obimonure vs. Erinosho (1966) All NLR 250.
10
Even though it cannot be said that the Courts judgment sought to be set aside can be said to be a null judgment, the failure to consider the case on its merit, more so when the notice of appeal declared incompetent by the Court through no fault of ours, is indeed competent, renders the application made one upon which the Courts discretion ought to be exercised in its favor. I hold on to this view particularly in that the instant case is a criminal case, and the option of the applicants going on appeal would have further delayed the hearing of the case on the merit. I therefore agree with the applicant?s counsel that the object of the Court is to decide the rights of the parties and not to punish litigants for mistakes committed in the conduct of proceedings. SeeBankole vs. Dada (supra).
Consequently, I am of the firm view that the discretion of this Court setting aside its judgment delivered on the 16th of November, 2018 ought to be and is allowed. The said judgment is discountenanced by me, with an order that the hearing of this appeal be taken afresh before the same panel of this Court.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft, the
11
leading ruling just delivered by my lord Hamma Akawu Barka JCA, I agree with the reasoning and decision arrived at in granting the order sought to set aside the judgment of this Court delivered on the 16th day of November, 2018, and to set the appeal down for hearing and or judgment on the merit.
By way of emphasis, let me state that a Court of law has an inherit jurisdiction to set aside its own judgment or a judgment of a Court of concurrent jurisdiction.
The circumstance which could warrant the setting aside of a judgment by a Court of law have been enumerated by the Apex Court in the case of Jev vs. Iyortyom (2015) 15 NWLR (Pt. 1483) P. 484 @ 509, as follow: –
The Supreme Court possesses inherent power to set aside its judgment in appropriate or deserving cases. Such cases are as follows:
(a) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties such a judgment can be impeached or set aside by means of an action which may be brought without leave;
(b) When the judgment is nullity such as when the Court itself was not competent and a person affected by an order of Court which
12
can properly be described as a nullity is entitled ex debito justitiae to have it set aside.
(c) When it is obvious that the Court was misled into given judgment under a mistaken belief that the parties consented to it;
(d) Where the judgment was given without jurisdiction; and
(e) Where the procedure adopted is such as to deprive the decision or judgment of the character of legitimate adjudication.
See also Igwe vs. Kalu (2000) 14 NWLR (Pt. 787) 435; Skenconsult Ltd vs. Ukey (1981) 1 SC 6; Ogueze vs. Ojiako (1962) 1 SCNLR 112; Alao vs. ACB Ltd (2000) 9 NWLR (Pt. 672) 264 referred to pp. 503-504.
In Bessoy Ltd vs. H.L. (Nig) Ltd (2010) 4 NWLR (Pt. 1184) P. 300 @ 316, this Court held that a Court of law can set aside its judgment in the following circumstances:
(a) If the judgment is obtained by fraud or deceit;
(b) If the judgment is a nullity such as when the Court itself is not competent;
(c) If the Court was misled into giving the judgment under a mistaken belief that the parties had consented to it;
(d) If the judgment was given in the absence of jurisdiction;
(e) If the procedure adopted was
13
such as to deprive the decision or judgment of the character of a legitimate adjudication.
See Vulcan Gases Ltd vs. G.F. Gasverwertung Ind. A.-G. (G.I.V.) (2001) 9 NWLR (Pt. 719) 610; A.T. Ltd vs A.D.H. Ltd (2007) 15 NWLR (Pt. 1056) 118.
The conditionalities set out in the case of Jev vs. Iyortyom (2015) 15 NWLR (Pt. 1483) P. 489 @ 509, which could warrant the granting of an order to set aside a judgment delivered by a Court of law, have been satisfied by the applicant.
Accordingly, the order sought by the applicant to set aside the judgment of the Court delivered on the 16th day of November, 2018, and setting the appeal down for hearing on the merit, is hereby granted by me.
BALKISU BELLO ALIYU, J.C.A.: I have read in draft the Ruling of my learned brother, Hamma Akawu Barka JCA just delivered and I entirely agree that the circumstance disclosed in this application is one of the exceptions to the general rule that a Court of law is functus officio once it delivered, its judgment in a matter. I therefore adopt the reasoning and the conclusion reached in the lead ruling and adopt same, including the consequential
14
orders, as mine in granting this application. It is hereby so ordered that the hearing of the appeal be taken afresh by this Court.
15
Appearances:
Oluronke Adeyemi with him,Kunle Ajayi, and Olawatomi Adetula.For Appellant(s)
Abdulmumeen Busari (SSC)For Respondent(s)
Appearances
Oluronke Adeyemi with him,Kunle Ajayi, and Olawatomi Adetula.For Appellant
AND
Abdulmumeen Busari (SSC)For Respondent
