SAHEED RAHUF KERERE-EKUN v. MONSURU ALAO OWOLABI & ORS.
(2014)LCN/7393(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of March, 2010
CA/L/EPT/LAS/NA/07/2008
RATIO
COURT: FUNTUS OFFICIO; WHEN DOES A COURT BECOME FUNTUS OFFICIO
It might be of interest to restate that the section 318 of the Constitution has defined the word Decision as:- ‘Decision’ means in relation to a Court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation’.
The decision arrived at by this Court in its ruling subject of contention has been reproduced earlier in the course of this ruling.
In other words that there is no appeal before the Court. The clarity of that restatement is not in any doubt as sought to argue by the learned senior counsel for the applicant. Relevant In Support is the Supreme Court authority in the case of OLOWU V ABOLORE (1993) 5 NWLR (Pt.293) p.255 at pp. 270 – 271 wherein Karibe – Whyte .J.S.C held thus:-
‘It is well settled, and it is unnecessary citing of decided cases that after finally deciding a matter before it, the Court of Appeal becomes functus officio, and lacks jurisdiction to deal with the matter. This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from the lower court. It cannot hear appeals from its own decisions. Thus having finally decided a case before it, becomes functus officio as to that case.
Also in the decision of the Court in MEGWALU V. EGWALU (19961 2 NWLR (PI. 42X) p. 104 at p.118 Ejiwunmi J.C.A. (as he then was) had this to say:-
“Can the present panel in the guise of exercising powers under Order 5 rule 3, make a fresh Order, or ignore the Order of the earlier panel and make an order inconsistent with the order of the earlier panel? To do so will undermine the very cardinal principle of stare decisis. it will create uncertainty in the law”
At page 120 Tobi J.C.A. (as he then was) also in his contribution had this to say:-
“It is elementary law that once a court of law delivers judgment or ruling, it becomes functus officio and the only remedy available to an aggrieved party is to proceed on appeal, unless the judgment or ruling is that of the Supreme Court, in which case, the party has no further right of appeal.” per. CLARA BATA OGUNBIYI, J.C.A.
APPEAL: ABSENCE OF ANY APPEAL: WHETHER IN THE ABSENCE OF ANY APPEAL BEFORE THE COURT, THERE’S NOTHING FOR IT TO HEAR AND THE QUESTION OF FAIR HEARING DIES NOT ARISE
To put it in another word, in the absence of any appeal, before the court, there was nothing for it to hear. The question of denial of fair hearing does not therefore in the circumstance arise as grossly misconceived by the learned senior counsel to the applicant. The authority cited by the said counsel in the case of Okafor V. A-G Anambra State (1991) NWLR (Pt. 200) 659 is not also relevant to the case at hand. per. CLARA BATA OGUNBIYI, J.C.A.
ELECTION PETITION: NATURE OF ELECTION PETITIONS
Election petition matters are sui generic in nature in respect of which time, no doubt, is of the essence and thus the significance of the provision in the preamble to the Practice Direction no 2 in Election Petition Appeals 2007, where it states:
“For the purpose or appeals coming to the Court of Appeal under section 149 of the Electoral Act 2006, No. 2, this Practice Direction shall be strictly observed by all the Parties”.
Section 246 of the Constitution of the Federal Republic of Nigeria 1999 relating appeal to the Court or Appeal provides that:-
(2) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final
The application at hand having regard to the provisions of the Practice Direction and the Constitution reproduced supra, is contrary to the letters and spirit of the Electoral Act 2006 which prescribes timeous disposal of election petitions as well as Election appeals, Plethora of authorities have clearly emphasized without mincing words on the necessity of speedy disposal of Election matters. In the case of Balogun v. Odomosu (1999) 2 NWLR (pt.592) p. 590 at 596 for instance, it was held by Pats-Acholonu, J.C.A (as he then was and of blessed memory) that:-
‘It must be remembered that one of the traits of all laws affecting Election Petition Tribunal is that of essentiality of time. The spirit of the law is that as much as possible such Petitions are given expeditious adjudication to enable the Parties know their states’.
The same principle was emphasized and restated in the case of P.R.P. V. INEC (2004) 9 NWLR (Pt 877) p. 24 at 52 wherein Ogbuagu J.C.A. (as he then was) said thus:-
‘If I may, the peculiar nature of election petitions and that need to hear and dispose them off expeditiously, have been stated and restated in some decided cases including Onitiri V Benson (1960) SC NLR p. 31 at 318’.
It is pertinent to say that by the very nature of election petition matters, they are automatically placed on different footing and cannot be equated with ordinary cases which are governed by the general rules of Court. In other words, while latitude is provided for in the latter cases, same is not the case with the former; and thus the necessity of putting in place, specifically the Electoral Act as the governing legislations which are strictly of a peculiar nature in the procedure to be applied. This of course, is not for nothing and should not therefore be relegated. With the panel of this Court having heard and determined the matter as it did, another panel of the same Court cannot reverse its own decision as sought by the applicant. To circumscribe to the application would amount to sitting on appeal over our own decision as rightly submitted by the learned respondents counsel. This, certainly is outside our powers of jurisdiction to do. There must also be an end to litigation and in situations where election petition matters are so prolonged and dragging on endlessly to the extent of the same period of the tenure of office sought to occupy itself, is of a great concern as it leaves nothing to be desired of the system. Applying the ordinary rules of Court to such peculiar cases would make nonsense of the special legislation put in place to govern same. Whether or not the pronouncement made by this Court in its ruling on the 26th May, 2008 was right or wrong, I hold that it is no longer within the powers of this same court to determine, with a view of overruling itself. per. CLARA BATA OGUNBIYI, J.C.A.
JUSTICE
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
SAHEED RAHUF KERERE-EKUN Appellant(s)
AND
MONSURU ALAO OWOLABI & ORS. Respondent(s)
CLARA BATA OGUNBIYI, J.C.A.(Delivering the Leading Ruling): The application at hand is brought pursuant to (1) Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; (2) Section 15 of the Court of Appeal Act CAP, C 36 Laws of the Federation of Nigeria, 2004 (3) Order 4 Rules 1 & 5 of the Court of Appeal Rules 2007
(4) Direction of the Practice Direction No.2 of 2007
(5) The Inherent jurisdiction of the Court and seeks for the following two reliefs:-
‘1. AN ORDER LISTING THE PETITIONER/APPELLANTS APPEAL FILED VIDE NOTICE OF APPEAL DATED 3/1/2008 AND FILED AT THE ELECTION PETITION TRIBUNAL ON 4/1/2008 FOR HEARING ON ITS MERITS BEFORE A DIFFERENT PANEL OF JUSTICES OF THE COURT OF APPEAL OTHER THAN THE HONOURABLE JUSTICES WHO DELIVERED THE RULING ON THE APPELLANTS MOTION OF 10/4/2008.
2. ALTERNATIVELY, AN ORDER SETTING ASIDE THE PORTION OF THE RULING OF THIS COURT IN THIS APPEAL OF 26/5/2008 WHICH READS:
‘The true position in law is that there is no appeal before us in the absence of an application for an extension of time to appeal. Such an application will of course be invalid’.
AND SUCH FURTHER and/or other Order or Orders as may seem fit in the circumstances’.
There are seven grounds predicating the application and these are that:-
1. The Appellant’s application to amend his Grounds of Appeal, etc. filed 10/4/2008 having been refused by Ruling of 26/5/2008, the original Grounds of Appeal In the Notice of Appeal remain EXTANT.
2. Upon the refusal of the said appellant’s application, the comments in the Ruling that ‘there is no appeal before us’ were obiter dicta or, in the alternative, were made per incuriam.
The Comments in the Ruling of 26/5/2008 that there is no appeal before us, is in breach of the appellant’s fundamental right to a fair hearing entrenched in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
4. Nothing touching upon the substantive appeal or its status came up for adjudication before the Court nor was the appellant given a hearing thereon.
5. The portion of the Ruling touching on the competence of the appeal is NULL and VOID AB INITIO.
6. The Court of Appeal is empowered to set-aside its own Order, which is a nullity (Okafor v. A-G. Anambra State (1991 )6 NWLR (Part 200) 659 (SC)).
7. Upon listing the appeal, the appellant is entitled to another panel of the Court of Appeal to hear the appeal, the Honourable Justices who gave the Ruling having disqualified themselves by pre-judging the appeal.
Also in support of the application are nine paragraphs affidavit and a number of exhibits attached thereto. In opposing the application,a counter affidavit by the 1st respondent was filed on the 14th October, 2008 and containing seventeen paragraphs. The 2nd – 161st respondents did not file any response to the motion.
On the 11th March, 2010 when the application was called up for hearing, the learned senior counsel Mr. B.A.M. Fashanu SAN led Mr. A. A. Balepo and represented the applicant. Prof. Taiwo Osipitan SAN also in Company of T. Osunsan appeared on behalf of the 1st respondent and Mr. Mohammed Ali of counsel represented the 2nd- 161st respondents.
In arguing the motion the learned senior counsel Mr. Fashanu SAN for purpose of substantiating the application relied on all paragraphs of the affidavit in support and in particular paragraphs 2 – 8 therein. The said senior counsel briefly recapitulated and gave a brief background summary of the petition which was dismissed by the lower Tribunal on 15/12/2007 and hence the reason for the filing of the notice of appeal marked Exhibit ‘A’ attached to the motion paper. That the appellant/applicant sought to amend the said notice of appeal vide a motion dated 10th April, 2008. That the ruling refusing the reliefs sought on (he motion is attached and marked Exhibit ‘C’. Learned senior counsel submitted that in as much as the applicant had no complaint against the refusal, the grouse however relates to the portion of the ruling which dismissed the appeal. He further reiterated that, all the court was expected to do was to decide the application in the motion to amend and not the appeal. That in determining the appeal, his client had been denied his right to fair hearing as provided under section 36 of the Constitution of the Federal Republic of Nigeria 1999. That the court wrongfully relied on the unreported case of Igbrubia v. Igbrubia CA/PH/EPT/334M/07 dated 10th December, 2007 which is an authority that an amendment by substitution should not be allowed and not that after refusing the application the appeal should be dismissed. That the said portion of the ruling made by this court and reproduced in the application at hand was null and void and thus the reason why it is therefore called upon to set same aside. To buttress his submission, the learned senior counsel cited the case of Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt 200) P.659. That the application should, in the circumstance be granted and the appeal be heard on its merit.
On behalf of the 1st respondent, the senior counsel Prof. Osipitan SAN vehemently opposed the application and thus relied on their counter affidavit under reference supra and also the three exhibits attached. The learned counsel, while urging for the dismissal of the application, related sternly and submitted on two vital considerations:-
In the first place, that the application at hand seeks to list the appellant’s appeal and not relist the argued that listing is administrative and not a Judicial Act, and which does not therefore require the court sitting thereon for purpose of making a judicial pronouncement. Furthermore, he argued, that the application is a clever attempt to make this court sit as an appellate court over its own decision. That with the appeal having been dismissed it cannot therefore be relisted. The learned senior counsel urged that this court should not overrule itself. That as it is, there is no appeal before the court. Reference was further made to the supporting ruling of .Justice Galinje, J.C.A. which was delivered in the same case.
The learned senior counsel in further contention submitted that with the appellant having prepared his brief of argument based on the proposed amended notice of appeal the said brief also fell with the proposed amendment sought for. That there would have been no brief in support of the appeal even if the original notice of appeal had subsisted in view of the nature of the subject matter being an election petition in respect of which time could not have been extended. The senior counsel in the circumstance therefore impressed that the application should be dismissed.
The learned counsel Mr. Ali in opposing the application on behalf of the 2nd – 161st respondents, adopted the submission of the learned senior counsel to the 1st respondent and also urged that the application be dismissed.
Submitting further on point of law, the senior counsel Mr. Fashanu argued that the use of the word listing is purely a matter of nomenclature and of no consequence. On the competence or not of their brief, he argued that courts are endowed with powers to allow parties extension of time within which to file their briefs. Learned senior finally submitted a dangerous precedent if the decision is allowed to stand.
As a pre-requisite and on the submission by the learned senior counsel Prof: Osipitan SAN on the use of the word listing in the application, the said contention I hold is of no moment and does not therefore affect the competence of the relief which is a mere Jack of the use of proper word. I do not consider it significant to dwell thereon.
Briefly the background and facts of this case as agreed by parties are that, the applicant and the 1st respondent both contested for the seat of Federal House of Representative, Lagos Island II Federal Constituency which was conducted by the 2nd respondent on 21st April, 2007. The 1st Respondent was declared as the winner of that Election. The applicant was unhappy with the emergence of the 1st Respondent as the winner of the Election hence, he, on the 21/5/2007 petitioned against the 1st respondent and the Independent National Electoral Commission (INEC) and its agents (as 2nd – 161st respondents). The Surviving ground of the petition was a pre-Election issue namely, that-
The 1st Respondent lacks the requisite qualifications to contest the Election.
The Tribunal below tried the petition, found that it was devoid of merit and consequently dismissed same on 15th December, 2007. The appellant’s notice of appeal was filed on 4/1/2008 to the Court of Appeal against the said judgment. The notice of appeal is at pages 755 – 766 of the record of appeal.
The appellant, thereafter filed a motion on Notice dated 8/2/2008 seeking leave to amend the grounds or appeal on the Notice of Appeal and deeming orders in respect of the grounds of appeal and the appellants’ Brief of argument but withdrew the motion on 31/3/2008. The appellant filed another motion on Notice on 10/4/2008 seeking the following orders:-
‘1. AN ORDER allowing the Appellant to amend the grounds of appeal in the Notice of Appeal herein in terms of Exhibit ‘B’ to the Affidavit hereto titled ‘Proposed Amended Grounds of Appeal’
2. AN ORDER deeming as having been properly filed and served the Amended Grounds of Appeal already filed herein;
3. AN ORDER for extension of time within which the Appellant/Applicant may file and serve his Appellants Brief of Argument herein;
4. AN ORDER deeming the Appellant’s Brief of Argument already filed herein as having been properly filed and served’.
By its Ruling dated 26/5/2008, this Court refused the application and hence the motion now at hand and which is the subject matter under consideration.
The Ruling of this court refusing the amendment is exhibit ‘C’ attached to the motion in respect of same. Relevant for consideration is certain aspects of the said ruling at pages 9, 10 and 12 of the said Exhibit ‘C’ which would need to be reproduced and are as follows:-
‘The next hurdle the Appellant must cross and as rightly alluded to by Prof. Osipitan SAN for the 1st Respondent, is the competence of the Notice of Appeal if all the grounds are substituted. The learned senior Counsel for the Appellant has admitted that what he seeks to do is to substitute and replace entirely the original grounds of appeal and insert completely new set. To the layman, this could be seen as a very easy task. In law however, it is an easy task with fatal consequences.
The legal implication of such an act is that when the old ground, of appeal are removed, the Notice of Appeal would have no legal legs, no support to stand on. The new grounds of appeal will be coming in outside the prescribed time.
There is no application placed before us for an order extending the time within which to file the appeal let alone deem same as dully filed and served. The learned senior counsel for the 1st Respondent posits, that even if there were such an application, it would be invalid as there is no provision to enlarge the time to appeal.
The true position in law is that there is no appeal before us in the absence of an application for an extension of time to appeal. Such an application will of course be invalid’.
The said application filed 26th June, 2008 poses the following issue for consideration.
Whether in the circumstance, this Court has the power to re-list the Appeal and if such power exists, whether it can be exercised in favour of the applicant having regard to all surrounding circumstances.
While the respondents submitted at great extent that this court lacks the power to re-list an appeal which has been dismissed, the called applicant’s counsel argued the contrary. The determining consideration relates strictly to the reasonings contained in the ruling Exhibit ‘C’ and which resulted in the order made. In other words, it is relevant to restate that with the appellant/applicant ‘seeking to substitute and replace entirely the original grounds of appeal and insert completely new set. The refusal to amend had certainly placed the original notice of appeal in a state of jeopardy. This is the situation as it was in the case of Igbrubia vs. Igbrubia supra and which the learned applicant’s counsel submitted was wrongfully relied upon. In that case, our brother Garba J.C.A of the Port Harcourt Division had this to say:-
“what the applicants admittedly seek to do is to abandon the Original grounds of appeal and in place thereof bring in fresh and completely new grounds of appeal. This not an amendment of the Notice of appeal but abandonment of such notice because it is the grounds that provide the life for the Notice of appeal to properly exists and be legally valid and competent’.
To substitute and replace means the doing away with that which exists entirely and thereby allowing a different set of the new to take over. There is therefore no room for the co existence of the former along side the present. In a nutshell, that is exactly the understanding and implication of the interpretation and conclusion arrived at in the ruling of this Court, the subject of this application. It is not therefore out of place to state that the intention of the amendment was to do away with the incompetent original and allow room for the competent replacement to set in. The refusal of the amendment resulted in a clear absence of any competent and subsisting grounds of appeal in support of the original notice of appeal thereof. It is needless to emphasize that a competent notice of appeal is, without mincing words, very fundamental as it is an originating process. There cannot also be such competent notice in law in the absence of competent supporting grounds of appeal.
Order 18 rule 4 of the Court of Appeal Rules 2007 is very explicit and well spelt to it as follows:-
‘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 omission, or to vary the judgment or order so as to give effect to its meaning or intention. Judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative substantive part of it be varied and a different form substituted’
From the above provision, it is expressly and crystally clear that the court is not imbued with the power to review its previous order; It can however only effect minor errors arising therein to correctly represent what it decided. The provision, in other words, limits the power of the Court only to the extent of correction of clerical mistake, error arising from accidental slip or omissions.
The question to pose at this juncture is, could the decision arrived at by this Court in its ruling delivered on the 26th May, 2008 come within the need for correction as envisaged by the applicant? The answer in my firm view has been provided for by the provision of order 18 rule 4 under reference supra.
It might be of interest to restate that the section 318 of the Constitution has defined the word Decision as:-
‘Decision’ means in relation to a Court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation’.
The decision arrived at by this Court in its ruling subject of contention has been reproduced earlier in the course of this ruling.
In other words that there is no appeal before the Court. The clarity of that restatement is not in any doubt as sought to argue by the learned senior counsel for the applicant. Relevant In Support is the Supreme Court authority in the case of OLOWU V ABOLORE (1993) 5 NWLR (Pt.293) p.255 at pp. 270 – 271 wherein Karibe – Whyte .J.S.C held thus:-
‘It is well settled, and it is unnecessary citing of decided cases that after finally deciding a matter before it, the Court of Appeal becomes functus officio, and lacks jurisdiction to deal with the matter. This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from the lower court. It cannot hear appeals from its own decisions. Thus having finally decided a case before it, becomes functus officio as to that case.
Also in the decision of the Court in MEGWALU V. EGWALU (19961 2 NWLR (PI. 42X) p. 104 at p.118 Ejiwunmi J.C.A. (as he then was) had this to say:-
“Can the present panel in the guise of exercising powers under Order 5 rule 3, make a fresh Order, or ignore the Order of the earlier panel and make an order inconsistent with the order of the earlier panel? To do so will undermine the very cardinal principle of stare decisis. it will create uncertainty in the law”
At page 120 Tobi J.C.A. (as he then was) also in his contribution had this to say:-
“It is elementary law that once a court of law delivers judgment or ruling, it becomes functus officio and the only remedy available to an aggrieved party is to proceed on appeal, unless the judgment or ruling is that of the Supreme Court, in which case, the party has no further right of appeal.”
In this case, this Court is the final resting place. From all indications and the nature of the application which was dismissed by this court, it presupposed that the original grounds of appeal were incompetent and hence the need by replacement by the amendment sought. It follows therefore that the submission by the learned senior counsel Mr. Fashanu SAN on the subsistence of the original grounds of appeal does not hold. It was the consequential effect of the refusal and dismissal of the application that occasioned the court to late that there is no appeal before it. This, the court held especially in the absence of any application for an extension of time within which to appeal. There is nowhere in the ruling of this court however where it held that the appeal was itself dismissed and as wrongly conceived and submitted upon by both senior counsel to the applicant and the 1st respondent. In other words and for purpose of clear understanding, the court by its ruling which is the subject matter of contention refused and dismissed the amendment sought to the grounds of appeal in the Notice of appeal filed on 4/1/2008. The court did not at any time therefore dismiss the said notice of appeal. All that the court said was that there was no appeal before it. A competent notice of appeal, of course, cannot exist in the absence of competent grounds of appeal as already suited supra.
In other words it would be apt to say that the relationship between notice of appeal and grounds of appeal is symbiotic in nature like two different creatures that live close together and depend on each other.
To put it in another word, in the absence of any appeal, before the court, there was nothing for it to hear. The question of denial of fair hearing does not therefore in the circumstance arise as grossly misconceived by the learned senior counsel to the applicant. The authority cited by the said counsel in the case of Okafor V. A-G Anambra State (1991) NWLR (Pt. 200) 659 is not also relevant to the case at hand.
Election petition matters are sui generic in nature in respect of which time, no doubt, is of the essence and thus the significance of the provision in the preamble to the Practice Direction no 2 in Election Petition Appeals 2007, where it states:
“For the purpose or appeals coming to the Court of Appeal under section 149 of the Electoral Act 2006, No. 2, this Practice Direction shall be strictly observed by all the Parties”.
Section 246 of the Constitution of the Federal Republic of Nigeria 1999 relating appeal to the Court or Appeal provides that:-
(2) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final
The application at hand having regard to the provisions of the Practice Direction and the Constitution reproduced supra, is contrary to the letters and spirit of the Electoral Act 2006 which prescribes timeous disposal of election petitions as well as Election appeals, Plethora of authorities have clearly emphasized without mincing words on the necessity of speedy disposal of Election matters. In the case of Balogun v. Odomosu (1999) 2 NWLR (pt.592) p. 590 at 596 for instance, it was held by Pats-Acholonu, J.C.A (as he then was and of blessed memory) that:-
‘It must be remembered that one of the traits of all laws affecting Election Petition Tribunal is that of essentiality of time. The spirit of the law is that as much as possible such Petitions are given expeditious adjudication to enable the Parties know their states’.
The same principle was emphasized and restated in the case of P.R.P. V. INEC (2004) 9 NWLR (Pt 877) p. 24 at 52 wherein Ogbuagu J.C.A. (as he then was) said thus:-
‘If I may, the peculiar nature of election petitions and that need to hear and dispose them off expeditiously, have been stated and restated in some decided cases including Onitiri V Benson (1960) SC NLR p. 31 at 318’.
It is pertinent to say that by the very nature of election petition matters, they are automatically placed on different footing and cannot be equated with ordinary cases which are governed by the general rules of Court. In other words, while latitude is provided for in the latter cases, same is not the case with the former; and thus the necessity of putting in place, specifically the Electoral Act as the governing legislations which are strictly of a peculiar nature in the procedure to be applied. This of course, is not for nothing and should not therefore be relegated. With the panel of this Court having heard and determined the matter as it did, another panel of the same Court cannot reverse its own decision as sought by the applicant. To circumscribe to the application would amount to sitting on appeal over our own decision as rightly submitted by the learned respondents counsel. This, certainly is outside our powers of jurisdiction to do. There must also be an end to litigation and in situations where election petition matters are so prolonged and dragging on endlessly to the extent of the same period of the tenure of office sought to occupy itself, is of a great concern as it leaves nothing to be desired of the system. Applying the ordinary rules of Court to such peculiar cases would make nonsense of the special legislation put in place to govern same. Whether or not the pronouncement made by this Court in its ruling on the 26th May, 2008 was right or wrong, I hold that it is no longer within the powers of this same court to determine, with a view of overruling itself.
In clear terms and without mincing words, I am of the firm view that this Court has no power to re-visit or reverse its own decision with a view to setting aside as sought by the application at hand. The Court in summary has become functus officio and the reason which the application dated 25th June, 2008 and filed 26th June, 2008 is devoid of any merit. Same is therefore dismissed with costs of N50,000:00 to each set of respondents against the applicant.
ADZIRA GANA MSHELIA, J.C.A.: I read in advance the ruling of my learned brother Ogunbiyi, J.C.A. just delivered. I entirely agree with the reasoning and conclusion arrived thereat. I will only add few words of mine for the purpose of emphasis. The Petitioner/Appellant Applicant by the motion on notice dated 25/6/08 and filed on 26/6/08 sought for two reliefs. The reliefs have been reproduced in the lead ruling.
The second relief sought by the applicant read as follows:-
‘2. Alternatively an order setting aside the portion of the ruling of this court in this appeal of 26/5/2008 which reads:
‘The true position in law is that there is no appeal before us in the absence of an application for an extension of time to appeal. Such an application will of course be invalid’.
The main complaint of the applicant is in respect of the portion of the ruling delivered on 26/5/2008, where the court said ‘there is no appeal before us’. The question is whether this court is competent to review its previous decision made on 26/5/2008. Order 18 Rule 4 of the Court of Appeal Rules 2007 appears to provide the answer. Order 18 Rule 4 provides: –
‘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. Judgment or order shall not be varied when it correctly represents what the court decides nor shall the operative substantive part of it be varied and a different form substituted’.
The above provision is clear and unambiguous. This court has no power to review its previous decision. The provision limits the power of the court only to the extent of correction of clerical mistake, error arising from accidental slip or omissions. The portion of the ruling which applicant is asking the court to review in my firm view cannot be classified as clerical error or accidental slip or omission. The decision arrived at by this court on 26/5/08 can only be set aside if same is declared a nullity. See Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt 200) 659. I entirely agree with the submission of the learned senior counsel to the respondent that this court cannot sit as an appellate court over its decision. This court is functus officio. In my humble view this application is devoid of merit.
For the above and the fuller reasons contained in the lead ruling, I also dismiss the application as lacking in merit and abide by the order made as to costs.
ADAMU JAURO, J.C.A.: Having read before now, the lead ruling just delivered by my learned brother Ogunbiyi J.C.A., I am in agreement with the reasoning and conclusion reached therein, and adopt same as mine.
The application is lacking in merit and same is hereby dismissed by me.
I abide by consequential orders made in the lead ruling.
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Appearances
Mr. B.A.M. Fashanu SAN with A. A. Balepo Esq.For Appellant
AND
Prof. T. Osipitan SAN with T. Osunsan
Mr. Mohammed AliFor Respondent
