RENASCENT CONSULT LTD v. MEDIA TRUST LTD & ORS (2020)

RENASCENT CONSULT LTD v. MEDIA TRUST LTD & ORS

(2020)LCN/15419(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/A/154/2013

RATIO

WORDS AND PHRASES: FUNCTUS OFFICIO

In support thereof, one states as clearly expressed in the Judgment that the term functus officio is now elementary and far too settled with plethora of judicial authorities in law books to the effect that, a Court after finally deciding a matter before it, lacks jurisdiction to deal with the matter. The reason is that a Court is not allowed to sit on appeal on its own decisions and is precluded from reviewing or varying its judgment or order as the Court below did apart from correction of clerical mistakes or accidental ships. See the case of Intercontractors Nigeria Ltd Vs U.A.C. of Nigeria Ltd 1988 1 NSCC 737 AND Citec Int. Estate Ltd & Ors vs Francis & Ors 2014 LPELR SC 116/2011. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A

JURISDICTION OF COURT: WHETHER A COURT CAN RECONSIDER CAN RECONSIDER A PRELIMINARY OBJECTION

Where the Court has become functus officio, the Court is not allowed by law to venture into the matter again, not to mention/consider it. See INTEGRATED REALTY LTD V. MURTALA SAKA ODOFIN & ORS. (2017) LPELR – 48358 (SC) and SHANU V. AFRIBANK (NIG.) PLC (2002) LPELR – 3036 (SC). The only way the Preliminary Objection can be heard again is on appeal to the Court of Appeal because the learned trial Court lacks the vires to review, re-open or even revisit the application which has been duly disposed of. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A

JURISDICTION: WHETHER A COURT CAN ASSUME THE STATUS OF AN APPELLATE COURT OVER ITS OWN DECISION

The first issue for determination raises a question to the propriety of the learned trial Court having ruled on the Preliminary Objection to subsequently rule on the same Preliminary Objection and give a different decision from the first decision. This raises the poser, can a Court reverse its own decision? The phrase functus officio means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. See FBN PLC. V T.S.A. INDUSTRIES LTD. (2010) LPELR – 1283 (SC).

Where power or authority is donated to carry out a particular task or function, once that task, duty or function is completed, the power or authority is extinguished and the person/body so empowered to act becomes functus officio. I call in aid the decision of the Apex Court in SANUSI V. AYOOLA & ORS. (1992) LPELR -3009 (SC) thus;

JUDGMENT OF COURT: WHETHER ANY JUDGMENT DELIVERED OUTSIDE THE 3 MONTHS MAY BE A NULLIFIED

Courts are mandated to deliver judgment in a matter within three (3) months after the last proceeding and all processes have been adopted.
This is pursuant to Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) thus;
“294. (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
The above cited provision of the Constitution has gained judicial application in several cases as replete of judicial authorities abound to this effect. The Apex Court in the case of CHUKWUOGOR V. OBUORA (1987) LPELR – 865 (SC) posited;
“It is now well settled by the decisions of this Court that it is mandatory for a High Court and other Courts established by the Constitution to deliver the judgment of the Court not later than three months from the date of conclusion of evidence and final addresses, I need only refer to:
(1) Chief Dominic Onuora Ifezue v. Livinus Mbadugha (supra)
(2) Paul Odi v. GbaniyiOsafile (supra)
(3) Awoyale v. Ogunbiyi(1985) 2 “WLR. 547
(4) Sodipo v. Lemminkainen OY (1985) 2 NWLR. 547, where Section 258(1) of the Constitution has been given judicial interpretation by this Court. In Ifezue’s case (supra), this Court held that any judgment delivered outside the 3 months is a nullity. This decision was upheld in Paul Odi’s case by the full Court of the Supreme Court. “Per Obaski, JSC. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

RENASCENT CONSULT LIMITED APPELANT(S)

And

MEDIA TRUST LIMITED 2. MALLAM KABIRU YUSUF 3. ALHAJI ISHAQ AJIBOLA 4. MALLAM MANNIR DAN ALI 5. ALHAJI BELLO DAMAGUN 6. ALHAJI SHUAIBU ABDULLAHI 7. ALHAJI UMAR S. ABDULLAHI 8. ALHAJI RABIU GARBA 9. CORPORATE AFFAIRS COMMISSION RESPONDENT(S)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal challenging the decision of the Federal High Court, Abuja Judicial Division, delivered on the 21st of December, 2012 Coram A. Abdu-Kafarati (J). wherein the learned trial Judge struck out the Plaintiffs’ suit for lack of locus standi.

The brief facts leading to this appeal as contained in the Appellant’s Brief are that;
“By an Originating Summons dated 22nd March, 2010 but filed on the 23rd March, 2010 in the Federal High Court, Abuja Judicial Division, the Plaintiff sought for;
1. A DECLARATION that the Plaintiffs are and remain in the alternate, Director(s) of the 1st Defendant Company.
2. A DECLARATION that the purported Notice of Annual General Meeting dated 3rd October 2009 served on the 2nd Plaintiff is irregular, insufficient, invalid, unreasonable, null and void to convene the meeting under which the Defendants purportedly resolved to remove the Plaintiffs as Director(s) of the 1st Defendant Company.
3. A DECLARATION that failure by the Defendants to serve the 1st Plaintiff with the Notice of the 1st Defendant Company purported Annual General Meeting held on the 18th August, 2009 at the Sheraton Hotel and Towers, Abuja in which the Defendants purported removed the plaintiffs as Director(s) of the 1st Defendant is illegal, unconstitutional and a breach of the Plaintiffs fundamental Rights to fair hearing, property and freedom of Association.
4. A DECLARATION that the purported removal of the Plaintiffs’ alternate Director and in effect the Plaintiffs as Director(s) of the 1st Defendant on the 18th August, 2009 in the Annual General Meeting of the 1st Defendant held at the Sheraton Hotels and Towers, Abuja is invalid, irregular, unlawful, illegal, unconstitutional, null and void, having been done in breach of their Constitutional Rights of fair hearing, the provisions of the Companies and Allied Matters Act, Cap C.20, Laws of the Federation of Nigeria 2004 and under the Company’s Articles.
5. A DECLARATION that the Plaintiffs can only be removed jointly or individually as alternate Director(s) of the 1st Defendant in strict compliance with the provisions of Section 36, 40 and 44 of the Constitution of the Federal Republic of Nigeria, 1999, the provisions of the Companies and Allied Matters Act, Cap C.20, Laws of the Federation of Nigeria 2004 and under the Company’s Articles.
6. AN ORDER of the Honourable Court nullifying and/or setting aside all the proceedings and the purported resolution of the Defendant on the 18th August, 2009 and/or any other resolution whatsoever removing the Plaintiffs in the alternate, as Director(s) of the 1st Defendant Company as well as stopping the 2nd – 8th Defendants from effecting to the said resolution.
7. AN ORDER OF INJUNCTION restraining the Defendants whether by themselves, servants, privies, agents whomsoever and however defined by the Plaintiffs as alternate and/or Director(s) of the 1st Company except in accordance with and/or strict compliance with Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, the provisions of the Companies and Allied Matters Act, Cap C.20, Laws of the Federation of Nigeria 2004 and under the Company’s Articles.
8. Further or other relief(s).
9. That provision may be made for the costs of this application.
ALTERNATIVELY
1. AN ORDER commanding the Defendants to pay the Plaintiffs, the sum of N100,000,000.00 (One Hundred Million Naira) only being Special and General Damages for the wrong removal of the Plaintiff as Director(s) of the 1st Defendant.
The Originating Summons was supported by four sets of Affidavit evidence: the First being the one filed along with the Originating Summons deposed to personally by one Bilya Bala, initially a second Plaintiff, with Eighteen (18) Exhibits marked as “RA – B6” in support. See Pages 2 – 129 of the Records of Appeal. The Second is the Nine (9) Paragraphs further and better Affidavit in support of the Originating Summons filed on the 7th June, 2010 deposed to personally by Bilya Bala, initially a second Plaintiff, with Six (6) Exhibits marked as “RAI – Kl”. See Pages 186 – 203 of the Record. The Third is the further and better Affidavit of Four (4) Paragraphs in Reply to the Counter-Affidavit of the 1st – 8th Defendants sworn to on behalf of the Plaintiffs by Esther Michael on the 31st May, 2011, which has Nine (9) Exhibits marked as “RNCI – RNC9″ in support. See Pages 514 – 589 of the Record. The last is the Five (5) Paragraphs further and better Affidavit in Reply with Nine (9) Exhibits at Pages 590 – 753 of the Record. The Plaintiff’s Arguments in aid of the suit is at 782 – 835 of the Record.
The two set of Defendants; 9th Defendant, first filed its processes, a Counter-Affidavit to the merit of the Originating Summons along with a Motion on Notice on which it challenged the Originating Summons on several alleged jurisdictional grounds. See Pages 130 – 185 of the Records; on the Other hand, the 1st – 8th Defendants, without first answering the merits of the Originating Summons filed a Notice of Preliminary Objection, as at Pages 381 – 420 of the Record. The Plaintiffs filed their responses to the Objections of the two set of Defendants. See Pages 334 – 381 of the Records. Both objections were consolidated by the Court below (See Page 844 of the Record) and heard on the 21/09/2010 (See Page 845 – 849 of the Record). On the 12th January 2011, the Court below in a 24 Page Reserved Ruling, Ruled on the consolidated objections. By that Ruling the 2nd Plaintiff was no longer a party to the proceedings. See Pages 421 – 443 and 850 of the Record. There was no appeal by any of the Parties against the Ruling. The substantive Originating Summons, in consonant with the Ruling was heard in the open Court on the 22nd March, 2012 and adjourned to the 24th May, 2012 for judgment. See Page 859 – 860 of the Record. The Judgment could not be delivered on the first adjourned and subsequent adjourned dates, not until the 21st Day of December, 2012.
In the judgment delivered by the learned trial Judge, he overruled himself by striking out in entirety the Plaintiff Originating Summons on the basis of the Preliminary Objection(s) of the Defendants which he had earlier determined on 12th January, 2011. The Judgment is at Pages 861 – 868 of the Record of Appeal.”

The parties shall simply be referred to as Appellant and Respondents in this Judgment.

Being dissatisfied with the decision of the learned trial Court, the Appellant filed a Notice of Appeal on 7/1/13. The Record of Appeal was transmitted to this Court on 28/3/2013. The Appellant’s brief of argument is dated 28/4/2013, filed on 05/12/18 and deemed filed on 30/04/20 while the 1st – 8th Respondents’ brief of argument is dated 7/11/14, filed on 10/11/14 and deemed filed on 11/05/15. The 9th Respondent’s brief of argument is dated 8/11/14 and filed 12/02/15.

Josiah Daniel-Ebune, Esq., of learned Counsel to the Appellant distilled two (2) issues for determination to wit;
1. Whether the learned trial Judge was right when he suo-motu and by evading the Originating Summons, determined for a second time, reaching a contrary decision to that in his Ruling of 12th January, 2011 the Preliminary Objections of the Respondents at the judgment stage, when the said objections were no longer before him and whether in so doing he did not deliberately occasion the Appellant a miscarriage of justice. (Grounds 2, 3 and 4 of the Notice of Appeal).
2. Assuming (without conceding) that the Court below was right on issue No. 1 having regard to the fact that the 1st – 8th Defendants are deemed to have admitted the fact of the Appellant’s case at the stage of their objections and in view of the holden in the Ruling of the Court below at Pages 22 – 24 of the Ruling of 12th January, 2011 and all the facts and circumstances of the case, the Appellant’s case on the Originating Summons was established and therefore it was entitled to the Reliefs sought therein and whether failure to hold thus is not a miscarriage of justice. (Grounds 1, 5 and 6 of the Notice of Appeal).

Ishaya P. Amaza, Esq., of learned Counsel to the 1st – 8th Respondents, from their Notice of Intention that the Judgment of the Federal High Court Delivered on the 21st of December, 2012 should be affirmed on the grounds other than those relied on by the trial Court, distilled two (2) issues for determination as follows;
1. Whether from the Affidavit and documentary evidence placed before the trial Court, the Appellant have discharged the evidential burden of proof on it to establish it had any directorship status in the 1st Respondent Company to entitle it to the reliefs claimed before the trial Court. (Distilled from ground 1 of the Respondent Notice).
2. Whether from the said evidence placed before the trial Court, the proceedings of the Annual General Meeting of the 1st Respondent held on the 18th August, 2009 was in accordance with the Companies and Allied Matters Act. (Distilled from ground 2 of the Respondent Notice).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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B. Mahmud, Esq., of learned Counsel of the 9th Respondent, distilled three (3) issues for determination from its Notice of Intention to raise Preliminary Objection on the competence of some grounds on the Appellant’s Notice of Appeal and the Appellant’s grounds of Appeal as follows;
1. Did the failure of the trial Court to properly examine and evaluate the case and evidence on record before making its findings not require a fuller re-examination and re-evaluation of the Honourable Court to affirm the said judgment? (Distilled from the Respondent’s Notice).
2. Whether the final decision of the trial Court to strike out the Appellant’s suit after conclusion of hearing, for want of locus standi in the Appellant, (and lack of jurisdiction in the Court to determine the suit), was right in law and justified in the circumstances of the case. (Distilled from grounds 1, 2, 3 and 4 of the Notice of Appeal).
3. Whether the Appellant has proved and established its claims for compensation or damages on the evidence on record to be entitled to the declaratory reliefs sought against the Respondents. (Distilled from grounds 5 and 6 of the Notice of Appeal). It is pertinent to first resolve the Preliminary Objection raised by the 9th Respondent that Ground 5 in the notice of appeal is a ground of mixed law and facts requiring particulars of error complained of. That Ground 5 is vague and Issue 2 distilled from it is incompetent and ought to be struck out. Relies on the case of HENKEL CHEM. LTD. V. A.G. FERRERO & CO. (2003) 4 NWLR (Pt. 810) 306 and MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.

Responding, the Appellant stated that the objection is not well founded and should be overruled with substantial cost because Ground 5 is married with the itemized particulars and is not vague and general. Relies on MARAYA PLASTICS LTD. V. INLAND BANK (NIG.) PLC (2002) 7 NWLR (Pt. 765) 117 and SARAKI V. KOTOYE (1990) 2 NSCC VOL.21, PT 11, 361.

In its Reply on points of law to the Preliminary Objection, the 9th Respondent stated that only an impression or a reference for the particulars was given by the Appellant without indicating the particulars as required by Order 6, Rule 2 (2) of the Court of Appeal Rules, 2011. That the Appellant has Ground 6 as its omnibus ground of appeal and cannot be heard to argue and rely on the case of SARAKI V. KOTOYE (SUPRA).

Order 6, Rule 2 (2) of the Court of Appeal Rules, 2011 provides thus;
“Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
For ease of reference, Ground 5 of the Notice of Appeal is reproduced to wit;
“The Judgment cannot be supported having regard to the facts and circumstances of the case.
PARTICULARS OF ERROR
The particulars relied upon are those set out in Grounds 1 2 3 and 4 above.” (Emphasis supplied) (See page 875 of the Records).

The Appellant clearly stated that he is relying on the particulars stated in Grounds 1-4. This must have been in order to avoid repetitions in the Notice of Appeal and it suffices. It is unnecessary to dwell on undue technicalities and further belabor the matter.

The 9th Respondent’s Preliminary Objection lacks merit and is hereby dismissed.

This appeal shall be determined based on the issues raised by all the Parties as they are similar. We shall commence with Issue 1 raised by the Appellant because where an issue of jurisdiction is raised, it must be determined first before other issues.

ISSUE 1
Whether the learned trial Judge was right when he suo-motu and by evading the Originating Summons, determined for a second time, reaching a contrary decision to that in his Ruling of 12th January, 2011, the Preliminary Objections of the Respondents at the Judgment Stage, when the said objections were no longer before him and whether in so doing he did not deliberately occasion the Appellant a miscarriage of justice. (Grounds 2, 3 and 4 of the Notice of Appeal).

The learned Counsel to the Appellant submits that the learned trial Court was wrong in law and has no jurisdiction to review, overrule or sit on appeal over his own decision in the manner it did. That in purporting to review, overrule, sit on appeal over its earlier decision or consciously and or inadvertently evading the merits of the Originating Summons, the learned trial Court clearly occasioned the Appellant a grave miscarriage of justice, having earlier resolved in its favour the same issues it overruled at the judgment stage on the premises of a Preliminary Objection(s) that in law and in fact were no longer before it. Cites ONWUKA V. MADUKA (2002) 18 NWLR (Pt. 799) 586, S.G.B. (NIG.) LTD. V. AWAYE MOTORS LTD (1992) 4 NWLR (Pt. 234) 231 and N.I.D.B. V. LIMANI (NIG.) ENT. LTD. (1998) 10 NWLR (Pt. 568) 97.

Responding, the learned Counsel to the 1st-8th Respondents states that it is settled that the issue of jurisdiction can be raised at any stage of a proceeding even suo-moto by any Court. Therefore, even where a party has not challenged the Court’s jurisdiction, the Court can on its own look at the pleadings of parties before it and determine whether there is any reasonable cause of action. Cites MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 and DADA V. OGUNSANYA (1992) 3 NWLR (Pt. 232) 764.

The learned Counsel to the 9th Respondent argued that the finding on the want of legal capacity in the Appellant by the trial Court had affected its jurisdiction to adjudicate over the issues raised, which had both intrinsic and extrinsic effects on the proceedings such that neither the merits of the case could be heard nor could any consequential order be made other than to strike out the suit. That the crucial and fundamental questions of locus standi and jurisdiction have created the exceptions which enabled the trial Court to strike out the Appellant’s suit before or after the conclusion of hearing without going into the merits of the case, which did not and was not shown to visit a miscarriage of justice or the denial of fair hearing on the Appellant. That the Appellant did not also suffer from the delayed judgment. Cites Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587.

Furthermore, Section 294 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus;
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
It is not enough to only state that the judgment of the Court is a nullity because it contravenes Section 294 (1) of the Constitution. The Appellant must show that the Appellant suffered a miscarriage of justice as a result of the failure to deliver the judgment within three (3) months as stipulated by the Constitution. I am fortified in this by the decision in the case of NYESOM V. PETERSIDE & ORS. (2016) LPELR – 40036 (SC), where the Apex Court held thus;
“The correct position of the law in the light of Section 294(5) of the 1999 Constitution is that a judgment will not be invalidated or nullified for non-compliance with the provision of Section 294(1) of the Constitution, unless and until an Appellate Court is satisfied that the party complaining of such non-compliance has shown that he has suffered a miscarriage of justice by reason of the late delivery of the judgment. See: AKOMA V. OSENWOKWU (2014) 11 NWLR (PT. 1419) 462, OWOYEMI V. ADEKOYA (2003) 18 NWLR (PT. 852) 307…” Per Kekere-Ekun, JSC.
Similarly, in the case of STATE V. KAPINE & ANOR. (2019) LPELR – 49511 (SC), the Apex Court held thus;
“It is instructive to note that even where a party is aggrieved for late delivery of judgment, he needs more than Section 294 (1) of the Constitution to succeed on appeal. In the case of AKOMA v. OSENWOKWU (supra) Galadima, JSC observed on page 488 as follows:-
The true position of the law, in the light of the foregoing provision, is that a party should not just go on appeal merely on the ground that the judgment he wants to set aside was delivered outside the three months (90 days) period. He will have to fight the appeal on all known grounds of appeal which can render the judgment unsuitable; not merely on the assessment of facts.
His Lordship went on to hold that:-
The delay per se does not lead to a judgment being vitiated or nullified. The delay must occasion a miscarriage of justice too in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had let his impressions of the trial due to such inordinate delay.” Per Okoro, JSC.
It is true that the judgment of the learned trial Court was delivered way outside the stipulated three (3) months period for the delivery of judgment. However, did the Appellant suffer any injustice as a result of this delay? I agree with the submission of the Appellant that the learned trial Court lost impression of the case and as a result, the Appellant suffered a miscarriage of justice. (See page 13-17 of the Appellant’s Brief of Argument). The Judgment was delivered 9 months after the adoption of final written addresses. Due to the long period and adjournments between the hearing of the case/adoption of final written addresses and the judgment, the learned trial Court gave judgment on the Preliminary Objection which had been taken and disposed of instead of the Originating Summons since the case has been heard. The 9th Respondent’s argument that the Appellant failed to show how he suffered miscarriage of justice is mischievous because it is evident that the Appellant suffered a miscarriage of justice as a result of the delay when the learned trial Court lost track of the case and overturned a Ruling the learned trial Court had delivered in favour of the Appellant.

“There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case. – See Ekerele v. Eke (1925) 6 NLR 118, Akinyede v. The Appraiser (1971) 1 All NLR 162. It cannot assume the status of an appellate Court over its own decision… ” Per Karibi-Whyte, JSC (OBM).
The law stipulates that once a Court of law delivers its judgment or makes an order in respect of a matter before it, it becomes functus officio and is precluded from reviewing or varying such judgment or order apart from the correction of clerical mistakes or accidental slips. See NIGERIAN ARMY VS IYELA (2008) 7-12 SC 35; DINGYADI & ANOR. VS INEC & ORS (2011) 10 NWLR (PT.1254) 347, FIRST BANK OF NIG. PLC. VS TSA IND. LTD. (2010) 15 NWLR (PT.1216) 247 and CITEC INTERNATIONAL ESTATE LIMITED & ORS. V. FRANCIS & ORS. (2014) LPELR – 22314 (SC).
In the instant suit, the Respondents filed a Preliminary Objection at the trial Court challenging the jurisdiction of the Court to hear the matter because the suit was wrongly commenced by originating summons, that the Appellant lacked locus standi to institute the matter, that the suit discloses no cause of action and that it is an abuse of Court process. The said Preliminary Objection is dated and filed 21st July, 2010. It was heard and the Ruling was delivered by the learned trial Court per Hon. Justice A. Abdu-Kafarati (Emeritus) on the 12th of January, 2011. On the whole, the learned trial Court ruled that the suit was properly commenced by originating summons, that the Court has jurisdiction to hear the matter and the 1st Plaintiff now Appellant has locus standi to institute the action. The learned trial Court further struck out the name of the 2nd Plaintiff for want of locus standi. (See page 421-443 of the Records).
The main suit was heard on 22nd March, 2012 and reserved for Judgment by the learned trial Court which was delivered on 21st of December, 2012. In its Judgment, the learned trial Court still relied on the same Preliminary Objection by the Respondents and in a complete turn of events, the learned trial Court overturned its own decision.
For the avoidance of doubt and ease of reference, I crave indulgence to reproduce some portions of the Ruling and some portions of the Judgment anon;
RULING;
“The 1st – 8th Respondents filed a notice of preliminary objection dated and fled 21st July, 2010 seeking to dismiss the plaintiffs’ suit. The grounds for this application are:
a. This Court has no jurisdiction to entertain this suit as it is unjusticiable.
b. The plaintiffs have no locus standi
c. The plaintiffs’ suit as constituted discloses no cause of action.
d. The action is vexations, speculative a gross abuse of process of Court and brought malafide,
e. The instant suit ought not to be commenced by Originating Summons as the facts in support of the plaintiffs/respondents’ case are highly contentions and would require viva voice evidence for the resolution of the issues therein…
Both the 1st – 8th Defendants and defendant’s notice of preliminary objection were consolidated…
I hold that the 2nd plaintiff has no locus standi to institute this action and his name is hereby struck out from the suit. I also hold that he has not disclosed any reasonable cause of action against the defendants… As for the 1st plaintiff, I hold that it has locus standi to institute this action. I also hold that the 1st plaintiff’s case discloses reasonable cause of action against the defendants. I also hold that the Court has jurisdiction to entertain this case.
On the last issue, it is my view that by virtue of the Companies and Allied Matters Act and the Companies Proceedings Rules 1992, this suit was properly commenced by way of an Originating Summons. The Objections of the Respondents against the 2nd plaintiff succeed and the name of the said 2nd plaintiff struck out. The 1st plaintiff’s suit against the defendants is adjourned to 22nd February, 2011 for hearing of the Originating Summons.” (See the Ruling at pages 421-422,442 and 443 of the Records). (Emphasis mine).
JUDGMENT;
“The 1st – 8th defendants also filed a notice of preliminary objection dated 2nd July, 2010 and filed 21st July, 2010. They are also praying for an order striking out and/or dismissing the plaintiff’s suit for lack jurisdiction and/or competence…
The 9th defendant filed a reply affidavit in respect of its preliminary objection and a reply address to the plaintiff’s address in opposition of its preliminary objection…

I will first of all deal with the preliminary objections of the defendants as they touch on the jurisdiction of the Court.
The only issue that calls for determination in the two preliminary objections is whether the plaintiffs have locus standi to institute this action…
I hold that both the 1st and 2nd plaintiffs do not have the locus standi to institute this action.
In the same vein, I also hold that they do not have any cause of action against the defendants…
Considering the copious documents filed, it is apparent the suit is a hostile one and so it is not ought to have been brought by Originating Summons…
At the moment the only order can make is that of striking out. The plaintiffs’ suit is accordingly struck out for lack of locus standi.
That is the ruling of this Court.” (See the Judgment at pages 863, 864, 865, 867 and 868 of the Records). (Emphasis mine).
It is abundantly clear that the Preliminary Objections relied upon by the learned trial Court in the Ruling delivered on 12th January, 2011 and the Judgment delivered on 21st December, 2012 are the same. It is also clear that the reliefs sought are the same but the decision of the Court in the Ruling and Judgment are different.
The learned trial Court having ruled on the Respondents’ Preliminary Objection on the 12th of January, 2011 became functus officio and had no jurisdiction to hear and determine the same Preliminary Objection again. Where the Court has become functus officio, the Court is not allowed by law to venture into the matter again, not to mention/consider it. See INTEGRATED REALTY LTD V. MURTALA SAKA ODOFIN & ORS. (2017) LPELR – 48358 (SC) and SHANU V. AFRIBANK (NIG.) PLC (2002) LPELR – 3036 (SC). The only way the Preliminary Objection can be heard again is on appeal to the Court of Appeal because the learned trial Court lacks the vires to review, re-open or even revisit the application which has been duly disposed of. The learned trial Court has no power or jurisdiction to rehear an application that has been determined by the Court having disposed of the Preliminary Objection as the Court cannot sit on appeal in its own case. It is worse off in the instant case that the learned trial Court reversed and overruled itself on the same application.
By the 1st – 8th Respondents’ Notice, the 1st – 8th Respondents have asked this Court to affirm the Judgment of the learned trial Court on a different reason that the Appellant does not have locus standi to institute the action. That by virtue of the affidavit evidence placed before this Court in the Record of Appeal, the Court can make a finding as to whether the Appellant has suffered any damage or has any interest to vest him with locus standi to institute the action.
Responding to this Notice in its Reply Brief, the Appellant raised a Notice of Preliminary Objection stating that the 1st – 8th Respondents’ Notice is an abuse of Court process since the 1st – 8th Respondents failed to file a Cross appeal.
Having found that the learned trial Court acted without the requisite jurisdiction in delivering Judgment, to delve into the issues raised and the application to affirm the Judgment of the learned trial Court on other grounds filed by the 1st – 8th Respondents in this appeal would require delving into the merits of the case and taking on the role of the trial Court who ought to have heard and determined the matter. This would be like putting the Cart before the Horse because this Court is not a Court of first instance. The case before the learned trial Court was not determined on the merits of the case and the Ruling dated 12th January, 2011 is not the subject matter of this appeal. The 1st – 8th Respondents rightly acknowledged that the interlocutory Ruling does not form part of the Judgment of the Court appealed against, it is curious that the 1st – 8th Respondents have now turned around to ask the Court to look into the issue of the locus standi of the Appellant. (See Paragraph 7.15, Page 26 of the 1st – 8th Respondents’ Brief). The Notice of Appeal is challenging the Judgment dated 21st December, 2012 as stated in the earlier part of this Judgment and the Court is not allowed to go on a frolic of its own by determining the appeal based on a Ruling which is not being challenged in the instant appeal.

The Appeal has merit and is hereby allowed.

The Judgment of the learned trial Court delivered on 21st December, 2012 is hereby set aside. The Ruling delivered on 12th January, 2011 still subsists.

This matter is hereby remitted to the Hon. Chief Judge of the Federal High Court to be heard and determined by another Judge.
A cost of Fifty Thousand Naira (N50, 000.00) only against the Respondents and in favour of the Appellant is in order and it is hereby so ordered.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity and privilege to read the draft of the lead judgment by my learned brother, Monica Bolnaan Dongban-Mensem, HPCA, and I agree entirely with the reasoning and conclusion reached therein.

There was no reason and the case was inappropriate for what the learned Court below did by reviewing the issues already determined in its Ruling again in its judgment. See the cases of Adegoke Motors Ltd Vs Adesanya 1989 3 NWLR Pt (109) 250 and Aiao vs ACE Ltd 2000 FWLR Pt. 11 1858.

In the light of the foregoing, I also find the appeal meritorious and abide by the orders made therein.
I make no order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the benefit of reading in draft the lead judgement just delivered by my learned brother; Monica Bolna’an Dongban-Mensem, PCA.

I agree with the reasoning and adopt the conclusion and orders arrived therein. The appeal succeeds and I abide by the consequential orders made therein.

Appearances:

Josiah Daniel-Ebune, Esq., with him Abimbola Olowosegun, Esq. For Appellant(s)

Olusegun O. Jolaawo, SAN, with him O. U. Archibong, Esq. and Abdul-Jabbar Kolo, Esq. – for the 1st – 8th Respondents.
Adeola Adedipe, Esq. with him O. C. Ogunyemi, Esq. – for the 9th Respondent.
For Respondent(s)

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