SENATOR I.G. ABANA v. CHIEF BEN OBI & ORS.(2004)

SENATOR I.G. ABANA v. CHIEF BEN OBI & ORS.

(2004)LCN/1660(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of November, 2004

CA/E/EPT/22/2003

 

JUSTICES

JAMES OGEBE   Justice of The Court of Appeal of Nigeria

SULEIMAN GALADIMA   Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE   Justice of The Court of Appeal of Nigeria

JOSEPH JEREMIAH UMOREN   Justice of The Court of Appeal of Nigeria

JA’AFARU MIKA’ILU   Justice of The Court of Appeal of Nigeria

Between

 

SENATOR I.G. ABANA Appellant(s)

AND

  1. CHIEF BEN OBI
    2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
    3. CHIEF ELECTORAL OFFICER/CHAIRMAN, INEC
    4. RESIDENT ELECTORAL COMMISSIONER, ANAMBRA STATE
    5. RETURNING OFFICER FOR ANAMBRA CENTRAL SENATORIAL DISTRICT Respondent(s)

ADEKEYE, J.C.A. (Delivering the Leading Judgment): By an amended motion on notice filed on the 27th of September, 2004 the appellant, Senator I.G. Abana prayed this Honourable Court for an order setting aside its judgment delivered on the 4th of May, 2004 Coram: Isa Ayo Salami, Saka Adeyemi Ibiyeye, Victor A.O. Omage, M. Datijjo Muhammed and Aminu Sanusi, J.J.C.A. for being a nullity. This application was brought pursuant to Order 1 Rule 19 Court of Appeal Rules 2002, sections 11 and 13 Court of Appeal Act, and sections 6(6)(a) and (b) and 36 ofthe 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of this court. The grounds for the application as set out in the motion are as follows:
(1) The judgment sought to be set aside is a nullity.
(2) The procedure and proceedings adopted by the Honourable Court on the 6th day of April, 2004 when the court purported to hear the appeal clearly denied the judgment of the 4th of May, 2004 based thereon the character of a legitimate adjudication.
(3) The proceedings of the 6th day of April, 2004 and the judgment of 4th May, 2004 based thereon grossly violate section 36 of the Constitution of the Federal Republic of Nigeria 1999.
(4) The appeal for which judgment was purportedly delivered on the 4th day of May, 2004 had been fully heard by another panel of Justices Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and had been reserved for judgment.
(5) The panel of Justices who purportedly delivered the judgment of the 4th of May, 2004 did not hear the matter.
(6) The judgment invariably violates natural justice.
At the hearing of the application, the applicant relied on a 31 paragraph affidavit in support dated 27th of September, 2004 to which are attached the proceedings of the 17th of February, 2004 as exhibit A1 and the proceedings of the 26th of February, 2004 as exhibit A2 a further-affidavit dated 4th October, 2004, annexing the judgment sought to be set aside as exhibit A3, and finally the appellant/applicant’s written address filed on 4/10/2004 in support of this amended motion on notice to set aside judgment in CA/E/EPT/22/2003 delivered on 4/5/2004.
During the hearing of the application, the applicant compressed the six grounds relied upon to set aside into two issues for determination in his written brief as follows:
(1) Whether the judgment sought to be set aside is a nullity considering the procedures and proceedings adopted by the Honourable Court on the 6th day of April, 2004 when the Honourable Court purported to hear the appeal in breach of natural justice thereby denying the judgment of 4th May, 2004 based thereon the character of a legitimate adjudication and contrary to section 36 of the Constitution of the Federal Republic of Nigeria 1999?
(2) Whether the appeal for which judgment was purportedly delivered on the 4th day of May, 2004 having been fully heard by another panel of Justices Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and reserved for judgment, renders the judgment purportedly delivered on 4th May, 2004 by a panel which did not hear the matter a nullity?
The appellant’s counsel, Mr. Wole Adebayo in his argument and submission gave five appropriate instances which are well settled in law under which a court can set aside its judgment relying on the case of Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453-454 paragraphs F-B, 454, para. C,455, para. B,464, paras. C-E 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 a nullity. A person affected by the order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside or
(c) When it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it or
(d) Where the judgment was given in the absence of jurisdiction or
(e) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
The learned counsel cited the case of Vulcan Gases Ltd. v. Gessellscihaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610 in support of the contention that a court has inherent power to set aside its own judgment when –
(1) It was obtained by fraud.
(2) If for any other reason it is a complete nullity.
The learned counsel gave the definition of nullity following the case of Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 particularly at pages 256-257 paragraphs G-B. He also attributed nullity to breach of fair hearing in that any judgment given in breach of the doctrine of fair hearing is a nullity and is capable of being set aside either by the court that gave it or by an appellate court. He emphasized that the twin pillars of fair hearing audi alteram partem and nemo judex in causa sua must be observed if adjudication must be legitimate; justice must not only be done, it must be seen to have been done. The learned counsel argued that the applicant and the Justices were adversaries in view of the suit before the Federal High Court, they persisted in the circumstances in rehearing the appeal in spite of the applicant’s objections on the ground of natural justice. It follows that an element of bias cannot be ruled out in the circumstance of this case. Whereas, a Judge as an arbiter must rule out everything which might engender suspicion or distrust of his impartiality so as to promote the feeling of confidence in which the administration of justice is rooted. It is obvious that audi alteram partem was breached in this case. During the proceedings, emotions became high between the Honourable Justices and the applicant, the court and the counsel as a result of which the two counsel engaged by the applicant had to withdraw their appearance – Babalakin, SAN on the 4th of March, 2004, and Nobis Elendu, Esq. on the 6th of April, 2004. The applicant’s application for adjournment was refused, while C.O. Akpamgbo, SAN had to double as appellant’s counsel by sorting out for court which of the different appellant’s brief of argument to adopt. Consequently, fair hearing failed to occur. The learned counsel conceded the fact that where a brief of argument had been filed and the party is absent, the court may deem the brief adopted, as held in the case of Franchal (Nig.) Ltd. v. N.A.B. Ltd. (2000) 9 NWLR (Pt. 671) 1. The learned counsel concluded that the observance of the twin pillars of natural justice, audi alteram partem and nemo judex in causa sua gives a judgment, the character of legitimate adjudication, which is lacking in this instance. The procedure adopted on the 6th of April, 2004 by the court amidst objections raised by the applicant has raised real likelihood of bias thereby denying the judgment of the 4th of May, 2004 based thereon, the character of a legitimate adjudication. The applicant made reference to the cases of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678 and Muabike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 639 para. H in support of fair hearing.
The second issue for determination is whether the appeal for which judgment was purportedly delivered on the 4/512004 having been fully heard by another panel of Justices – Coram: O. Opene, B. Akaahs and D. Adeniji, J.J.C.A., and reserved for judgment renders the judgment purportedly delivered on 4/5/2004 by a panel which did not hear the matter a nullity. In the 1st respondent’s written address in respect of amended motion for setting aside of judgment, the learned counsel for the respondent observed that the earlier motion for setting aside of the judgment filed on the 5/5/2004 is still pending before this Honourable Court and has not been withdrawn by the applicant. The second motion titled amended motion on notice is curious as motion pending in court can only be amended by leave of the Honourable Court. It is presumptuous of the applicant to assume that a yet to-be made application for amendment has been granted or must be granted. Nowhere in the written address did the applicant make any application to withdraw the earlier motion.
In the appellant/applicant’s written reply on points of law, the applicant replied that a motion on notice was filed on the 5/5/2004 while an amended motion on notice was filed on the 27/9/2004. He applied in open court to file an amended motion which the court insisted that the appellant/applicant must file and serve on the 1st respondent that same day. Having filed the amended motion as ordered by court, it takes care of the earlier motion filed such that withdrawal of the original motion does not arise as held by the Supreme Court in the case of Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534 that once an amendment of court process has been ordered, the effect is that what stood before the amendment is no longer material before the court and no longer defines the issues. Where leave to amend is sought and such is granted by court, the effect is that all previous processes of court are subsumed in the amended process. The amended process takes effect from the time the original processes for amendment were filed even without recourse to withdrawal of the original documents or processes. Maska v. Ibrahim (1999) 4 NWLR (Pt. 599) 415.
In the written reply on points of law, the applicant’s counsel is of the opinion that the 1st respondent wrongly relied on all the cases cited on fair hearing and Order 6 Rules 9(5) of the Court of Appeal Rules, 2002. The applicant expressed his wish to engage another counsel to court and consequently asked for an adjournment of the matter. He expressed his wish not to waive his constitutional right to address the court. Both applicant and counsel were in court and thereby contrary to the situation envisaged by Order 6 rule 9(5). The judgment delivered on the 4/5/2004 is a hasty judgment and a denial of fair hearing.
The 1st respondent has in opposition to the said amended motion of the applicant filed a counter-affidavit of 26 paragraphs to which is annexed exhibit A being a letter written by the Deputy Chief Registrar of the Court of Appeal and a written address. The learned counsel for the 1st respondent, Chief Chris Uche, SAN emphasized that the matter had initially come before a panel of the Court of Appeal – Coram: Justices O. Opene, B. Akaahs, and D. Adeniji, but was not concluded before another panel made up of five Justices of the Court of Appeal took over the hearing of all pending election appeals in the Enugu Division of the Court of Appeal. On the 4/5/ 2002 the Court of Appeal delivered its judgment on the merits in the matter after full consideration of the briefs of all the parties in the matter.
The 1st respondent’s counsel distilled only one issue for consideration in the application as follows:
“Whether the judgment delivered by the five man panel of the Court of Appeal, sitting as a final court in an appeal arising from an election petition in this case is a nullity which can be set aside by this court?”
The learned counsel submitted that the judgment delivered on the 4/5/2004 is not a nullity which can be set aside by this court for the under mentioned reasons:
(1) The judgment of the 4/5/2004 is not a default judgment, but a judgment on the merits. The applicant was heard before the judgment was delivered.
All parties in the matter filed their briefs. Order 6 rule 9(5) of the Court of Appeal Rules was invoked to treat the brief of the applicant as being duly heard as neither him nor his counsel was around when the appeal was heard. The applicant had due notice of the hearing of the party, while the court refused to be held to ransom by the antics of an unwilling party.
The opportunity granted to the applicant to be represented by counsel on two occasions failed. Both counsel walked out on the applicant in court. The matter under consideration was an election matter of which time was of the essence. The appeal was heard on its merit and in accordance with the law and procedure. The Court of Appeal was right to have adopted the procedure of invoking Order 6 rule 9(5) of the Court of Appeal Rules, 2002 to treat the brief of the applicant as having being duly argued. The 1st respondent cited the cases of Cappa & Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49 at 64; Ogbodu v. Quality Finance Ltd. (2003) 6 NWLR (Pt. 815) 147 at 158; Agu v. Anyalogu (2002) 14 NWLR (Pt. 787) 294 at 304; Okunrinmeta v. Agitan (2002) 2 NWLR (Pt. 752) 565 at 576; Igbinovia v. Okomu Oil Palm Co. Ltd. (2002) 17 NWLR (Pt. 796) 386 at 398; Hassan v. Atanyi (2002) 8 NWLR (Pt. 770) 581 at 595; John Andy Sons & Co. Ltd. v. NCRI (1997) 3 NWLR (Pt.491) 1;Abubakar v. Federal Mortgage Bank Ltd. & Ors. (2002) 4 NWLR (Pt. 756) at 29.
(2) The applicant cannot complain of lack of fair hearing as he was given enough opportunity to be heard, and he was heard as required by law. The 1st respondent relied on the cases of Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157 at 173; Kaduna iles v. Umar (1994) 1 NWLR (Pt. 319) 143; Adeboanu Manufacturing Ind. v. Akiyode (2000) 13 NWLR (Pt. 685) 576; Muhammed v. Kpelai (2001) 6 NWLR (Pt. 710) 700; S & Construction Co. v. Chief Bayo Ayoku & Anor. (2003) 5 NWLR (Pt. 813) 278 at 300; Military Governor of Lagos State v. Adeyiga (2003) 1 NWLR (Pt. 802) 589 at 611; Reynolds Construction Co. Ltd. v. Okpegboro (2000) 2 NWLR (Pt. 645) 367; Chidoka v. First City Finance (2001) 2 NWLR (Pt. 697) 216 at 227; Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397; Obasanjo v. Buhari (2003) 17 NWLR (Pt. 850) 510 at 586; Ajidahun v. Ajidahun (2000) 4 NWLR (Pt. 654) at 605; Okotcha v. Herwa Ltd. (2000) 15 NWLR (Pt. 690) 249 at 257; Military Governor of Lagos State v. Adeyiga (2003) 1 NWLR (Pt. 802) 589 at 623.
(3) The respondent submitted that once a court of law delivers final judgment in a case on the merits, it becomes functus officio in relation to the judgment once pronounced and enrolled. It is not open for the same court to sit on appeal on its judgment as the court which decided the matter to finality becomes functus officio. Section 6(6) (a) of the 1999 Constitution does not empower a court to review its own decision, neither can a court sit on appeal over its own decision.
The 1st respondent supported this contention with the cases of Oboroh v. Oghuvwu (2000) 3 NWLR (Pt. 647) 120; Kaduna iles Ltd. v. Obi (1999) 10 NWLR (Pt. 621) 138; Lamurde v. Adamawa 1 S.C. (1999) 12 NWLR (Pt. 629) 86; Omotunde v. Omotunde (2001) 9 NWLR 252 (Pt.718).
(4) The 1st respondent viewed the application as a gross abuse of court process by a self-seeking litigant. By virtue of section 246(3) of the Constitution of the Federal Republic of Nigeria 1999 –
“The decision of the Court of Appeal in respect of appeals arising from election petitions shall be final”.
This application is a subtle and convert attempt by the applicant to subvert the finality of the decision of the Court of Appeal on 4/5/2004 in this matter.
The 1st respondent’s learned counsel cited the cases of Chief Sergent Awuse v. Dr. Peter Odili & Ors. (2003) 18 NWLR (Pt. 851) 116 at 157; Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323; Onyeabuchi v. INEC (2002) 8 NWLR (Pt. 769 at 417.
Finally that the application is incompetent and misconceived, this court is urged to dismiss it.
I have carefully considered the argument and copious submission of the counsel to the parties. I agree, and it is settled law that there are grounds on which a court can set aside its judgment. These grounds have repeatedly been mentioned in numerous decisions recorded in our Law Reports. Generally speaking when a court completes hearing of a case and delivers its judgment, thereon it ceases to exercise further power in dealing with the case except with respect to such ancillary matters as stay of execution, instalmental payment etc. In legal parlance the court is said to be functus officio in the case. Thereafter steps to reverse the judgment does not fall within the jurisdiction of the relevant court. Onyemobi v. President Onitsha Customary Court (1995) 3 NWLR (Pt. 381) 50; Ekerete v. Eke (1925) 6 NWLR 118; Edem v. Akamkpa Local Government (2000) 4 NWLR (Pt. 651) 70.
The foregoing does not tamper with the inherent powers of a Judge to set aside its own judgment or order including judgments and orders made by his colleagues of the same jurisdiction which for any reason whatsoever is a nullity. Ogueze v. Ojiako (1962) 1 SCNLR 112; Ekerete v. Eke (1925) 6 NLR 118; Siliyun v. Mashi (1975) 1 NMLR 55. Various High Court (Civil Procedure) Rules allow the courts under certain conditions to set aside its judgment obtained in the absence of one of the parties or in default of pleadings.
Under its inherent jurisdiction or power, a court can set aside its judgment obtained in the under mentioned circumstances:
(a) When judgment is obtained by fraud or deceit either in the court or of one or more of the parties. Such judgment can be impeached or set aside by means of an action which may be brought without leave.
(b) When the judgment is a nullity and the person affected by the order is entitled ex debito justitiae to have it set aside.
(c) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it.
(d) Where the judgment was given in the absence of jurisdiction.
(e) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
Ojiako v. Ogueze (1962) 1 SCNLR 112; (1962) 1 All NLR 58; Craig v. Kanseen (1943) KB 256; Agunbiade v. Okunoga (1961) All NLR 110; Edem v. Akampka Local Government (2000) 4 NWLR (Pt. 651) 70; Igwe v. Kalu (2002) 14 NWLR (Pt. 787-435.
I intend to consider each and everyone of the foregoing instances, and relate them to the judgment delivered on 4/5/2004 now being sought to be set aside by the applicant. The applicant complained about the competence of the court that delivered the judgment Coram: Justices Isa Ayo Salami, Saka Adeyemi Ibiyeye, Victor A.O. Omage, M. Datijjo Mohammed and Aminu Sanusi, J.J.C.A., to re-list and re-hear the appeal CA/E/EPT/22/2003. Once a defect in competence is established, it is fatal and the proceedings however well conducted is a nullity. Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802; Asore v. Lemomu (1994) 7 NWLR (Pt. 356) 284; Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57. The applicant equally complained that the Justices violated the principles of fair hearing in the determination of this case as the applicant was denied the opportunity of being heard. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675. The standard of fair hearing requires the observance of the twin pillars of the rules of natural justice namely:
(a) Audi alteram partem that is hear the other side and
(b) Nemo judex in causa sua that is no one should be a judge in his own cause. This is the rule against bias.
In addition to the foregoing, another attribute of fair hearing is that having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done – Saleh v. Munguno (2003) 1 NWLR (Pt. 80l) 221; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Udu-Akugba v. Paico Ltd. (1993) 4 NWLR (Pt. 288) 434; Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678; Deduwa v. Okorodudu (1976) 9-10 SC 329.

It goes without saying that the fairness in proceedings requires that a person who is tainted by likelihood of or actual bias should not take part in the decision making process where the adjudicator is under a duty to act fairly and the person whose conduct is the subject of inquiry should have an opportunity of being heard. Bamgboye v. University of Ilorin (supra); Agbogu v. Adiche (2003) 2 NWLR (Pt. 805) 509; Adigun v. A-G., Oyo State (supra).
“The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1999, and a breach of it particularly in trials, vitiates such proceedings rendering same null and void. Any judgment which is given without compliance and which has breached a fundamental right such as the right to fair hearing is a nullity and is capable of being set aside either by the court that gave it or by an appellate court.”
Okafor v. A-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678-679. Nullity was defined by the court in the case of Saleh v. Munguno cited (supra) as:
“A nullity is in law a void act, an act which has no legal consequence, a proceeding which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal title whatsoever, it does not also inure obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage.”
The grouse of the applicant is that the panel which delivered the judgment of the 4/5/2004 now sought to be set aside, breached the principles of fair hearing which rendered the entire procedure and judgment a nullity, reasons are as follows:
(1) The appeal for which judgment was purportedly delivered on the 4/5/2004 had been fully heard by another panel of Justices Coram: O. Opene, B. Akaahs and D. Adeniji and had been reserved for judgment.
(2) All the Justices are parties in a suit instituted by the applicant against the rehearing of the appeal. The applicant was their opponent yet persisted in rehearing his appeal which act is tainted with bias.
(3) That the court adopted the briefs including the applicant’s brief under Order 6 rule 9(5) of the Court of Appeal Rules, 2002. Whereas such procedure is meant to be applied where a brief of argument has been filed and the party is absent, the court may deem the brief adopted.
But in the instant case, the party was present and specifically requested in open court to engage another counsel to represent him when his counsel abruptly withdrew in open court. The court refused to grant the applicant the opportunity to be represented by another counsel. In the process, the court invoked Order 6 rule 9(5) of the Court of Appeal Rules to adopt his brief along with the brief of others whose counsel were not present in that appeal. The argument of the applicant obviously raises the inevitable question, what is the meaning and purport of fair hearing? I find the adequate answer to this question in the case of Saleh v. Munguno (2003) 1 NWLR (Pt. 801) 221 at 247 that:
“The term fair hearing involves a situation where having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all parties to the proceedings. It also means a trial conducted according to all legal rules formulated to ensure that justice is done to all parties to a cause or matter.”
Okafor v. A.-G., Anambra State (1991) 3 NWLR (Pt.200) 659; Ogba v. State (1992) 2 NWLR (Pt. 222) 164; Mohammed v. Kano Native Authority (1968) 1 All NLR 424.
So as to determine whether the judgment delivered on the 4/5/2004 is a nullity for failure to comply with the doctrine of fair hearing. I have to scrutinize the scenario pervading in court prior to the determination of the appeal. I have relied on the affidavit, counter-affidavit and further affidavit of the parties, the documents attached as exhibit AI – the court proceedings on the 17/2/2004, exhibit A2 court proceedings on the 26/2/2004, exhibit A3 the controversial judgment of court delivered on the 4/5/2004 and the written addresses of the parties. From the above mentioned documents the following facts emerge:
(1) That the appeal was a judgment from an election petition.
(2) That both parties have filed their respective briefs of argument.
(3) The appeal was duly fixed for hearing.
(4) The appeal came up for hearing on the 18th of March, 2004 but rather than argue his appeal, the applicant’s counsel walked out on the court refusing to argue the appeal.
(5) The applicant applied for an adjournment to brief another counsel to represent him.
(6) The Court of Appeal obliged him and adjourned the hearing of the appeal to the 6th of April, 2004.
(7) On the 6th of April, 2004 when the appeal came up for hearing – the applicant was represented by another counsel, who rather than argue the appeal also withdrew from hearing the appeal like the applicant’s first counsel.
(8) The applicant, repeated what he did before requesting that he be granted time to look for another counsel – the indulgence he had once been granted.
(9) Rather than bringing a new counsel into the case the applicant brought another counsel from the chambers of the 1st counsel who walked out on him in court.
(10) The party and the court observed that there were no interlocutory applications pending before the court that might have required oral argument.
(11) At the time the court invited parties to argue their appeal – the applicant was not in court though he was present at the commencement of hearing.
(12) Briefs of argument having being filed and exchanged the court in compliance with Order 6 rule 9(5) of its Rules treated the appeal as having being duly argued by considering all the briefs of argument filed and exchanged in the appeal.
(13) It is the contention of the applicant from the foregoing that the judgment is a nullity.
(14) The appeal for which the judgment was purportedly delivered on the 4th of May, 2004 had been fully heard by another panel of Justices – Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and has been reserved for judgment.
(15) The panel of Justices who purportedly delivered the judgment of the 4th of May, 2004 – did not hear the matter.
It is a fundamental and basic rule of evidence that he who asserts must prove. Section 137 of the Evidence Act, Cap. 112 Laws of the Federation 1990. The applicant woefully failed to attach the judgment of the panel of the three Justices mentioned as part of the facts to be considered in his application to set aside the judgment delivered on the 4th of May, 2004. Where a matter has not been heard on merit or prosecuted to conclusion and judgment delivered-the case can be re-opened and heard de novo before another court. On the 26/2/2004 – there was an adjournment in the matter for the purpose of hearing the sister case CA/E/EPT/23/2003, so that judgment may be delivered in the two appeals on the same day. Exhibit A – a letter on the Deputy Chief Registrar to the Chief Justice of Nigeria – at page 6 para. 4 of the letter reads:
“Since I am not a judicial officer within the meaning of the Constitution, I can only use the language of the Registry to describe the Appeal No. CA/E/EPT/22/2003 by then Senator (Sir) I.G. Abana as simply ‘Inconclusive’.”
The foregoing is part of the facts before me in this application, and I can consider same. The new panel of Justices invoked Order 6 rule 9(5) of the Court of Appeal Rules, 2002 at the hearing of this appeal. It is my conclusion that the appeal was heard on its merit and in accordance with the law and procedure. Order 6 rule 9(5) of the Court of Appeal Rules 2002 reads:-
“When appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having being duly argued.”
The court had in compliance with Order 6 rule 9(5) of the Court of Appeal Rules, 2002 treated the brief of the applicant as duly argued, as he was aware that the appeal was to be heard that day, but his counsel adopted a strategy that could delay the trial by walking out on his client in the court room. Hearing notice had previously been served on the applicant and his counsel. All attempts to stall the hearing of the appeal were equally aborted. The procedure under Order 6 rule 9(5) is constantly adopted by the Court of Appeal going by the numerous numbers of cases reported on this. In the case of Hassan v. Atanyi (2002) 8 NWLR (Pt. 770) 581 at 595 – it was held that:-
“By virtue of Order 6 rule 9(5) of the Court of Appeal Rules 2002 where a party to an appeal has filed its brief of argument but was absent during the hearing of the appeal as the appellants were in the said case, the Court of Appeal would hear the appeal after being satisfied that the counsel to the party has been duly served with a hearing notice.”
John Andy Sons & Co. v. NCRI (1997) 3 NWLR (Pt. 491) 1; Ogbodu v. Quality Finance Ltd. (2003) 6 NWLR (Pt. 815) 147 at 158-159; Agu v. Anyalogu (2002) 14 NWLR (Pt. 787) 294 at 304.
The applicant complained of lack of fair hearing while in my impression and going by the circumstance of the case, he was given an ample opportunity to be heard and he was duly as required heard by the rules of court directing hearing of appeal. It is however trite that if a litigant who has all the opportunity to present his case before the court but fails to do so cannot be heard when he turns around to complain of the breach of his right to fair hearing. The applicant was granted all the opportunity to present his case and be heard – but rather, he continued to be blindfolded and haunted by a non-existing judgment. It was held in the case of S & D Construction Company v. Chief Bayo Ayoku & Anor. (2003) 5 NWLR (Pt. 813) 278 at 300. that:-
“Where in the cause of hearing a party had the opportunity to present his case but failed to utilize the opportunity afforded him to ventilate his case, he cannot thereafter blame his adversary or the court for his failure as he had been afforded a fair hearing.”
In this case, the applicant had filed his brief all the court did not allow him was to address on the brief. I cannot see any factor in the brief of the applicant that would amount to denial of fair hearing simply because when his brief was adopted he was not around to address the court – neither can such vitiate the valid and subsisting judgment of court delivered on the 4th of May, 2004. Muhammed v. Ekpelai (2001) 6 NWLR (Pt. 710) 700 at 712; Chidoka v. First City Finance (2001) 2 NWLR (Pt. 697) 216 at 227. I agree with the learned counsel for the 1st respondent that the judgment in the appeal CA/E/EPT/22/2003 delivered on 4/5/2004 is a final judgment delivered after the appeal was heard on the merit. According to the rules of this court Order 5 rule 3 of the Court of Appeal Rules 2002:
“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. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”
This judgment in this appeal is further a final judgment, which this Honourable court has no jurisdiction to set aside. As I mentioned at the onset of this judgment, that this court becomes functus officio once a judgment is pronounced and enrolled. Oboroh v. Oghuvwu (2003) 3 NWLR (Pt. 647) 120; Lamurde v. Adamawa J.S.C. (1999) 12 NWLR (Pt. 629) 86. It is the theory of justice under our system of administration of justice that no court of concurrent jurisdiction has the power or the jurisdiction to review or set aside an order made by another court or Judge of concurrent jurisdiction. Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399) 35. In the final analysis and going by the overwhelming facts on records in this application, I hold that the application is misconceived and unmeritorious, since this court lacks the jurisdiction to set aside the judgment delivered on the 4/5/2003, the application is dismissed with N10,000.00 costs in favour of the 1st respondent.

OGEBE, J.C.A.: I had a preview of the lead ruling of my learned brother, Adekeye, J.C.A. just delivered and I agree with the reasoning and conclusion. The Opene panel which earlier took arguments in respect of the applicant’s appeal never delivered any judgment. Another panel had to take the appeal afresh and it did so and delivered judgment. This is done routinely in the Court of Appeal and the applicant’s case cannot be an exception.
The application is misconceived and I also dismiss it with costs as assessed in the lead ruling.

GALADIMA, J.C.A.: I have had the advantage of reading in draft  the ruling of my learned brother, Adekeye, J.C.A., just delivered. I agree with the reasoning and conclusions that the application is lacking in merit since the court lacks the jurisdiction to set aside the judgment delivered on 4/5/2004. I too, would dismiss this application. I abide by order made as to costs in favour of the 1st respondent.

UMOREN, J.C.A.: I have been privileged to read in advance the lead judgment of my learned brother, O.O. Adekeye, J.C.A., just read. I agree with his reasoning and conclusion that the appeal is unmeritorious and ought to be dismissed and I hereby dismiss it too. I abide by orders made in the lead judgment including order as to costs.

MIKA’ILU, J.C.A.: Having read the draft of the ruling just delivered by my learned brother, O.O. Adekeye, J.C.A. I agree with the reasons given therein as well as the conclusion reached in it.
The application is unmeritorious and it is dismissed. I issue the same order as to costs as in the lead ruling.

Appeal dismissed.

 

Appearances

Wole Adebayo, Esq.For Appellant

 

AND

Chief Chris Uche, SAN;
Messrs U. Igweneme,
I.K. Iloani and
E. AkpamgboFor Respondent

 

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